Imaginary Iran

MICHAEL RUBIN  COMMENTARY MAR. 31, 2016

https://www.commentarymagazine.com/foreign-policy/middle-east/iran/imaginary-iran/

Never before in recent history has the United States faced a country that has so persistently sought to kill Americans or attack Americans only to avoid consequences after every outrage. It’s not just a matter of:

• The 1979-1981 hostage situation.
• Assassinating an Iranian dissident in suburban Washington, DC.
• The 1983 Marine Barracks bombing.
• Seizing American hostages in Lebanon.
• The 1996 Khobar Towers attacks.
• The facilitation of transport for the 9/11 hijackers to and from Al Qaeda training camps in Afghanistan.
• Sheltering of senior al-Qaeda leaders post-9/11.
• Smuggling of explosively-formed projectiles into Iraq and weaponry to the Taliban to kill Americans.
• Plotting to kill the Saudi ambassador in Washington, DC.
• Seizing, holding for years, and then ransoming a number of Iranian-Americans for years and continuing to hold former FBI agent Robert Levinson, left behind by the Obama administration in its rush to conclude a nuclear deal.

For none of the listed events has anyone in Iran faced any consequence. Rather, the problem is broader: There is a consistent and bizarre effort to whitewash Iranian excesses and to depict not the reality of the Islamic today, but rather a fictional and imaginary Iran.

Consider for a moment supposed U.S.-Iran cooperation in Afghanistan. Did that herald a new beginning scuttled by George W. Bush’s “Axis of Evil” speech as former diplomat James Dobbins suggested? Let’s put aside the idea that a regime which leads “Death to America” chants on a weekly basis has such a thin skin that it can’t deal with one line of criticism in a single speech. What Dobbins ignored was what Bush knew: Iran has built a then still covert and illicit enrichment facility at Natanz and was smuggling 50 tons of weaponry to Palestinian terrorists onboard the Karine-A. At best, Dobbins was guilty of being a single blind man describing the trunk of an elephant, not recognizing the rest of the beast was submerged in excrement. At worst, he was describing an imaginary Iran and castigating anyone else who did not fall victim to the same illusion.

Then, of course, there was the furious back-pedaling in the policy world and commentariat regarding Iran’s threats to wipe Israel off the face of the earth. The problem, of course, was that Iran’s own official translation — and numerous banners since then — repeated the threat in both English and Persian. Nevertheless, today numerous policymakers and proponents of the Iran deal simply deny what Iranian officials said and meant, ascribe to Iranian leaders a falsehood, and predicate policy on that kinder, gentler Iran.

There’s then the issue of the supposed 2003 “Grand Bargain” offer spread by Trita Parsi, Iran’s de facto lobbyist in Washington. The story was false on its face and, at the time Parsi spread the story, he knew it was false — the Iranian ambassador to the United Nations had emailed him as much. Nevertheless, he hooked a number of credulous reporters and now-Secretary of State John Kerry onto the conspiracy theory. To this day, it is amazing that, given decades of knowledge about Iran’s negotiating behavior, any serious journalist or politician could have for a second believed that Iran would offer to resolve everything with the snap of the fingers on Supreme Leader Ali Khamenei’s right hand.

What about the promise of Iran’s youth? It is a common trope. The problem is, Iran actually has an aging population. The birthrate in the Islamic Republic is half of what it was in the 1980s, and the growth rate is not much greater than that of the United States once illegal immigration into the United States is included. Indeed, in recent years, the aging population has been a source of worry to Khamenei and the subject of several speeches, although the Islamic Revolutionary Guard Corps has taken comfort in the fact that an aging population will be easier to control. In imaginary Iran, however, there is a burgeoning youth who want nothing more than McDonalds and apple pie.

What about Iran’s reformists? Let’s put aside that the Guardian Council has, in some elections, eliminated more than 99 percent of candidates and so those labelled reformists are actually in the top one percent of regime loyalists. What do the reformists believe? While former President Mahmoud Ahmadinejad became infamous for denying the Holocaust, his predecessor and “Dialogue of Civilizations” promoter Mohammad Khatami also promoted Holocaust denial. Maybe he was a kinder, gentler sort of Holocaust denier and revisionists, but sponsoring religious hatred with a smile shouldn’t make it any less odious.

What about elections? A whole series of American officials — Strobe Talbott, Richard Armitage, Colin Powell, John Kerry, among others — have at one point or another suggested Iran was a democracy. Let’s put aside the fact that only certain bodies come up to a popular vote and that sovereignty in Iran comes from God to the Supreme Leader, and not from the bottom up. Do those elections which occur matter? Not on the issues which concern U.S. policy most: Iran’s covert nuclear program was constructed during a period of supposed reformist control, and the Supreme National Security Council chair who oversaw the project was none other than Hassan Rouhani, the current president. But there’s also the logical flaw: If reformist election victories represent the will of the Iranian people, then what do the hardline election victories mean which, not by coincidence, intersperse the reformist victories? Again, it’s an imaginary Iran where elections represent the public will and matter only when they conform to the fantasies of ambitious American and Western diplomats.

But what about the journalists who cover such elections? Firstly, what few journalists will acknowledge publicly though many will admit privately is that they go where their minders allow them to go. Look at the backdrop to any Christiane Amanpour report from Iran and it’s likely to be affluent and relatively liberal northern Tehran or central Tehran. Seldom are reporters allowed to go (or bother to go) to Western Tehran, where many of the IRGC veterans and their families reside in housing projects, or to the slums south of Tehran, like Islamshahr, which often make up for in religious fervor and anti-Western sentiment what they lack in overseas bank accounts.

Then, of course, there’s the issue of religious minorities. How many journalists and academics have repeated the talking point that Iran has the second largest Jewish population in the Middle East (often cited as 20,000) as if that means all is well? Here’s the problem: Firstly, that ignores the exodus of 100,000 from the time of the Islamic Revolution. To only lose 84 percent of one’s population isn’t a good thing. To suggest that the Islamic State hosts the second-largest population of Yezidis should comfort no one. Then, there’s the issue that the 20,000 figure has been frozen in time for more than two decades. Today, the true number is closer to 8,000, Iranian Jews say. That journalists and academics are so willing to take Iranian government numbers at face value be they over the number of Jews, voter turn-out, or the number of executions is troubling. It’s almost as if there’s one set of journalistic standards and credulousness for Iran and another more rigorous set for the rest of the world.

Make no mistake. The Iranian people and the Islamic Republic are not one and the same, although President Obama’s contribution to U.S. rhetoric to Iran was to conflate the two. To criticize the Islamic Republic is not to castigate the Iranian people. And it is also true that most Iranians are far more moderate and cosmopolitan than their government. The sad fact is, however, that in dictatorships it is the guys with the guns who construct policy and not those whom they repress. Increasingly, whether out of naiveté, political correctness, agenda journalism, or effective Iran lobbyists to whom truth is only a secondary or tertiary concern, American officials see only the Iranian people and not their repressors.

It is one thing to try to craft policy to achieve what today is only an imaginary Iran — a normal state that seeks to join productively the community of nations — but another thing to gear policy to it as if that normal state already exists. Alas, until the White House, State Department, and Pentagon calibrate policy to the reality of the Islamic Republic’s ideological prerogatives, terror sponsorship, animosity toward the United States and incitement to genocide against Israel, the more likely it is that U.S. policy objectives will fail spectacularly and Iranian leaders will continue to pursue their aims successfully. Simply put, imaginary Iran is like the mythical siren luring sailors to their demise. No one in today’s world should so easily fooled.

Khamenei: ‘Those Who Say Future Is in Negotiations, Not Missiles, Are Ignorant or Traitors’

Iranian Supreme Leader Ayatollah Ali Khamenei. Photo: Wikimedia Commons.

Iran’s top leader on Wednesday said missiles were key to the Islamic Republic’s future, offering support to the hardline Revolutionary Guards that have drawn criticism from the West for testing ballistic missiles.

Supreme Leader Ayatollah Ali Khamenei supported last year’s nuclear deal with world powers but has since called for Iran to avoid further rapprochement with the United States and its allies, and maintain its economic and military strength.

“Those who say the future is in negotiations, not in missiles, are either ignorant or traitors,” Khamenei, who has the final say on all matters of state, was quoted as saying by his website.

Read full story at Reuters.

ISIS Makes the EU More Anti-Israel

 EVELYN GORDON / MAR. 30, 2016

https://www.commentarymagazine.com/foreign-policy/middle-east/israel/isis-makes-eu-more-anti-israel/

Like every major Islamist attack in Europe, last week’s terror attacks in Brussels left many Israelis wondering whether Europeans will finally understand what Israel faces. Unfortunately, such attacks are more likely to intensify anti-Israel activity in Europe. To understand why, it’s worth reading an article from the Islamic State magazine Al-Naba that propounds a surprising thesis: Jihad against Israel doesn’t take precedence over jihad anywhere else.

The article, translated by MEMRI, argued that the “Palestine first” slogan, which has reigned supreme for almost seven decades, has led good Muslims to ignore all the other places where jihad is no less necessary, or even more so. Indeed, it said, Muslims’ top priority should be purifying lands already under Islamic control, for both religious and practical reasons. Religiously speaking, “The apostate [tyrants] who rule the lands of Islam are graver infidels than [the Jews].” And practically speaking, defeating Israel won’t be possible without first destroying neighboring Arab regimes that are its “first line of defense.” Consequently, “Waging jihad with the aim of replacing the rule of the Jews with a regime like that of those who currently rule Gaza and the West Bank is jihad that is null and void,” because it would just replace infidel Jews with infidel Muslims.

But fighting Jews also doesn’t take precedence over “fighting the Crusaders and all the polytheists in the world,” the article stressed. In fact, “Muslims everywhere should fight the infidels nearest to them,” since that’s where they have the best chance of succeeding.

That last sentence sums up why Islamic State’s approach is Europe’s worst nightmare. For decades, Europe had a cushy arrangement: All the world’s jihadists were so fixated on Israel that they were willing to overlook longstanding hatreds against “Crusader” Europe, as long as Europe would help them wage war on Israel. As Manfred Gerstenfeld pointed out this week, many European countries — including Switzerland, Germany, France and Italy — tried to take advantage of this offer: They sought deals under which Palestinian terrorists could operate freely in their countries – usually without fear of arrest, but with swift release guaranteed if arrests were necessitated by American pressure – and in exchange, the terrorists wouldn’t attack those countries.

Not only did this largely protect Europe from jihadist terror, but it even seemed to avoid the main pitfall of most appeasement deals. The usual problem with appeasement is that the aggressor, after gobbling up the prey the appeaser threw him, then goes after the appeaser from an even stronger position, since one enemy is already out of the way. That, for instance, is what happened when Europe gave Hitler first the Sudetenland and then the rest of Czechoslovakia in 1938-39, only to see him turn around and gobble up the rest of Europe a year later.

But Israel, against all odds, showed no sign of collapsing; it kept getting stronger despite decades of unrelenting attacks. So to Europe, it must have seemed the perfect solution: The crocodile could keep attacking Israel forever, and Europeans would be permanently safe. All they had to do was make sure the beast remained fixated on Israel by maintaining a steady drumbeat of anti-Israel outrage.

Yet now, suddenly, that tactic no longer works – and like any weakling confronted with a bully, Europe is cravenly trying to divert the bully’s attention back to his former victim.

That’s precisely why Islamic State’s rise over the last few years has coincided with an upsurge in anti-Israel activity by European governments, including the European Union’s discriminatory decision to start labeling settlement products, moves by several European parliaments to recognize a Palestinian state, and France’s recent push for both an anti-Israel Security Council resolution and an international conference conducted under threat of recognizing “Palestine” if Israel doesn’t capitulate completely. All these are frantic efforts to restore the jihadist status quo ante – first, by refocusing world (and especially Muslim) attention on Israel, and second, by weakening Israel enough that it once again looks like a tempting target for jihadists, rather than one too strong to be tackled without first bringing down several other countries.

Eventually, a new generation of European politicians might figure out that this won’t work. Even if Islamic State is eventually pushed out of Syria and Iraq, its ideas are now loose in the jihadist universe and can’t be put back in the bottle; thus Europe would do better to team up with Israel against the common threat rather than helping the jihadists play divide and conquer. But for older politicians, veterans of decades in which diverting the crocodile’s attention to Israel actually worked, this paradigm shift will probably prove impossible. They are far more likely to keep escalating against Israel in a desperate effort to bring back those halcyon days when jihadists believed, as Al-Naba put it, “that no other issue should be raised until Palestine was liberated.”

And this brings us to the left’s standard recipe for improving relations with Europe – quitting the West Bank. As I’ve noted before, all available evidence rebuts the theory that territorial concessions can buy European love. But that’s doubly true if Europe is now seeking to divert the jihadists’ attention to Israel because it won’t be able to stop at giving them the West Bank. It will have to move on to encouraging them to attack pre-1967 Israel, which the jihadists also consider “occupied territory,” for the same reason Europe had to give Hitler the rest of Czechoslovakia six months after giving him the Sudetenland. Appeasement requires keeping the crocodile fed, so once he’s gobbled up one juicy tidbit, you have to throw him another.

In short, Israel’s relations with Europe will probably get much worse before they get better, if they ever do. All it can do is protect itself from the fallout as best it can by continuing to bolster economic and diplomatic ties with the rest of the world.

The fallout of the Obama doctrine: Global chaos and its implications for Israel and the Jewish people   By  Isi Leibler 3-23-16  

http://wordfromjerusalem.com/the-fallout-of-the-obama-doctrine-global-chaos-and-its-implications-for-israel-and-the-jewish-people/

President Barack Obama’s determination to downgrade U.S. international power has generated massive global instability and chaos with especially ominous implications for Israel.

The Obama policies have undermined longstanding alliances within the Western bloc. By supporting the Muslim Brotherhood and allying with terrorist and rogue states like Iran, the U.S. has alienated Arab states such as Egypt and Saudi Arabia, which consider themselves abandoned and betrayed.

The wooing and groveling toward Iran has empowered the world’s leading Islamic terrorist state, enabled it to become a threshold nuclear power and exacerbated the conflict between the Shiites and Sunnis, which has led to the emergence of new Islamic barbarian groups like ISIS. The Islamic fundamentalists have reintroduced the Dark Ages to the region in which mass murder, rape and beheadings of civilians have become rampant.

Obama’s vacillating policies have resulted in the weakening of Arab states like Syria and Libya with consequent horrendous casualties and the displacement of millions. When controlled by the despotic Moammar Gadhafi, Libya had voluntarily abrogated its nuclear ambitions and undertaken to eschew terrorism. Obama’s enthusiasm to “democratize” the country led to the overthrow of the dictatorship, the assassination of the American ambassador and the transformation of Libya into a major terrorist launching pad which may ultimately necessitate military intervention.

The mayhem and terror in the region has created a severe refugee crisis which could accelerate the demise of the European Union and permanently alter the demographic base of Europe even leading to the erosion of European civilization.

The downgraded U.S. influence enabled President Vladimir Putin to reassert Russia as a major global power and achieve greater influence in the Middle East than the Soviets ever attained. Most Arab states today regard Russia as a more reliable ally than the U.S.

On top of all this, Obama’s domestic political legacy has led to widespread alienation against the entire political establishment and the emergence of populist candidates, such as Bernie Sanders and Donald Trump, who are supported merely because they challenge the existing order. At the same time, it is extraordinary that according to surveys, the leading candidates of both the Republican and Democratic parties, Trump and Hillary Clinton, respectively, are detested by half of their own party constituencies.

The Obama policies have led to uniquely Jewish negative repercussions:

The hostility to the Israeli government by its principal ally has provided enormous impetus to its adversaries. The double standards employed by the administration and classification of Israel as morally equivalent to the terrorists and the failure to directly reprimand Palestinian leaders engaged in incitement to murder Jews and sanctification of the killers as national “martyrs” — reflect morally outrageous behavior. At a time when almost half a million Syrians were butchered and 4 million displaced from their homes, the focus of U.S. ire was against Israeli construction of homes even in the Jewish neighborhoods of east Jerusalem. This blatant hostility by the Obama administration provided global encouragement to anti-Israeli forces and gave the green light to the Europeans to pressure Israel to make further unilateral concessions and recognize the indefensible 1949 armistice lines as the basis for permanent borders. In Europe, it is widely believed that Israelis behave like Nazis with genocidal intentions toward the Arabs and represent a greater threat to peace than rogue states like North Korea or Iran.

Only a few decades ago, many considered anti-Semites an extinct species. Today, a coalition of Islamists, a substantial proportion of the Left, the radical Right, and dormant indigenous anti-Semites have coalesced into a witches’ brew, making anti-Semitism into one of the greatest global political growth industries. Obama’s anti-Israelism and diplomatic onslaughts over the past eight years have been a major contributing factor in creating the climate for this incredible upsurge of anti-Semitism.

The Obama administration has virtually succeeded in undermining the broad bipartisan support for Israel which both Democrats and Republicans had hitherto maintained. In the Democratic Party, there is now a substantial and growing leftist bloc which has adopted the anti-Israeli approach prevalent in most of the European leftist political parties. Obama’s loathing of the Israeli leadership has strengthened and emboldened this bloc, whose influence will expand if the incoming president continues to pander to them.

Obama has directly impacted Jewish community attitudes toward Israel. Over the past decade, assimilation and intermarriage have made massive inroads and dramatically weakened the Jewish community. Most Jews, other than the Orthodox, receive no Jewish education and the young generation are increasingly classifying themselves as “secular,” which implies nominal Jewish affiliation. On top of this, memories of the Holocaust and the heroic struggle for Jewish nationhood after a 2,000 year interregnum are fading. The centrality of Israel in Jewish life was downgraded and a growing number of Reform and Conservative rabbis now identify their Judaism with universal concepts beyond “nationalism,” such as liberalism and “tikkun olam” – repairing the world. These trends received an enormous boost from Obama, who, with the support of anti-Zionists (for example, George Soros and others), systematically promoted far-left-wing Jewish organizations like J Street, whose principal objective was to undermine AIPAC and the pro-Israeli Jewish establishment. As an African-American president, Obama mesmerized American Jews for whom liberalism and affiliation with the Democratic Party had become a critical element in their DNA, often surpassing their Jewish loyalties. Many, bombarded by an increasingly anti-Israeli press, joined the anti-Zionist chic, distancing themselves from Israel. This was especially notable on university campuses.

Regrettably, when Obama made outrageous remarks concerning Israeli policies, the traditionally robust Jewish leadership was intimidated and responded with a deafening silence. Beyond small Jewish groups like the Zionist Organization of America, the principal voices defending Israel were not Jews but Republicans and evangelical Christians. This impacted negatively on Jews throughout the entire Diaspora.

Yet, without disputing the disastrous impact of Obama’s policies on Israel and the Jewish people, we should not pander to gloom and doom but turn our focus to positive developments.

Despite the tensions, the bonds between Israel and America based on shared values and popular public support have never been greater. Notwithstanding Obama’s loathing of the present Israeli leadership, he has felt obliged to strengthen rather than reduce American military aid, although that is now under threat as the latest security package is conditional on Israel forgoing the right to lobby Congress for additional aid in times of need. Yet there are grounds for hope that the newly elected president will seek to repair the relationship with Israel.

Israel has had extraordinary success in developing relations with powerful emerging countries such as India and China and re-engaging with the African nations.

The understandings achieved with the Russians, despite their involvement in Syria, are nothing short of amazing. Alongside his tactical intervention ensuring the survival of Assad in Syria, Putin has simultaneously developed an unprecedented positive relationship with Israel. His Bolshevik antecedents would turn in their graves if they were aware of the almost surreal scenario in which this former KGB officer expresses philo-Semitic sentiments and even praises former Soviet citizens now resident in Israel.

Although it is still premature, Israel’s relationship with Egypt, Saudi Arabia and the Gulf states, much of which is currently clandestine, has the potential of ultimately obliging the Palestinians to reach an accommodation with us.

Israel has never been as powerful as it is today. Without dismissing the Iranian threat, the Israel Defense Forces are today able to defeat the combined forces of all our adversaries.

Despite the fact that anti-Semitism, assimilation and intermarriage will continue to erode the vitality of Diaspora Jewish communities, increasing numbers of committed Jews will make aliya, either by choice or to enable their children to grow up in a society in which they wear their Jewishness as a badge of honor.

Despite the trials and tribulations of the Jewish people, we can rejoice in the knowledge that our future remains assured with Israel. Over the past half century, the Jewish state has made extraordinary progress, is self-sufficient and is proud of our achievements as the startup nation.

Iran Gives Incentive to Scrap Deal

MICHAEL RUBIN / MAR. 20, 2016

https://www.commentarymagazine.com/foreign-policy/middle-east/iran/iran-gives-incentive-scrap-deal/

In his desperation to ensure that the Joint Comprehensive Plan of Action (JCPOA) remained in effect after the end of the Obama presidency, Secretary of State John Kerry designed the agreement to front-load rewards on Iran. Rather than calibrate the unfreezing of assets to Iranian compliance throughout the life of the agreement, Kerry moved to release cash up front. Furthermore, Iran not only won huge investment on the part of Russians, Chinese, and Europeans, but Kerry also guaranteed that any snap-back mechanism could not impact such investment, thereby providing additional incentive to rush investment into Iran.

This was the diplomatic equivalent of serving dessert first and only afterward demanding a toddler eat kale, but it was also meant to keep any future administration from walking away from the agreement despite its lack of treaty status. After all, if Iran had already gotten all its rewards, then why scrap the agreement since all that would do would be to end early the limited monitoring and restrictions to which Tehran agreed?

Personal ambition is corrosive in negotiations. The Iranians played hardball and, at almost every step, Kerry and his top advisors telegraphed desperation. On the rare occasions Kerry threatened to walk away, he never once described what the best alternative to a negotiated agreement might be, and, therefore, the Iranian negotiating team rightly concluded that they could call his bluff. They understood that, having lost the presidency, Kerry wished to win a Nobel Prize to validate his own self-image. His immediate advisors were equally ambitious. Be it with the PLO (Dennis Ross), Libya (William Burns), or North Korea (Christopher Hill, Robert Gallucci), careers are made by reaching agreements with rogues, not by walking away. Seldom do those agreements stand the test of time and advance U.S. security.

It was against this backdrop that Kerry and his negotiators agreed to dilute language on the Iranian ballistic missile program from what already had been enshrined in UN Security Council resolutions. Whereas previous resolutions declared that Iran “shall not” develop ballistic missiles, the post-JCPOA Security Council resolution simply “called upon” Iran to not develop ballistic missiles. In testimony before Congress, Kerry repeatedly dismissed the difference, but it is this change in wording that both Iran and Russia say allows Iran to test ballistic missiles without violating the JCPOA. This in itself is worthy of Congressional hearings because, if Kerry and his team didn’t realize the difference between the two, then it is an indictment of the competence of the entire non-proliferation and legal teams at the State Department. Kerry and his team likewise allowed Iran to alter the agreement’s wording to make illegal only those ballistic missiles designed to carry nuclear warheads rather than those merely capable of carrying nuclear warheads. If Kerry and his team did recognize the difference in both instances but then assured Senator Corker that the changes were cosmetic and not substantive, he essentially lied to Congress.

The Iranian government, for its part, is standing firm on its ballistic missile program. Iranian Foreign Minister Mohammad Javad Zarif has endorsed the launches in a series of tweets, no matter the slogans painted on the missiles declaring their goal to be the destruction of Israel. Senior Iranian leaders across the political spectrum have likewise doubled down on the development of Iran’s ballistic missiles. Brig.-Gen. Amir Ali Hajizadeh, commander of the Islamic Revolutionary Guard Corps’ aerospace division, likewise doubled down on the missile program, declaring that Iran would not bow to sanctions or international pressure. During Friday prayers on March 18, official sermons delivered on behalf of the Supreme Leader and the regime each defended Iran’s ballistic missile ambitions and condemned both America and Israel.

Toward the end of negotiations, both Kerry and President Obama became so obsessed with criticism in Congress that they did not recognize the real threat to reconciliation and normalization came from within Iran. Kerry was too clever by half in front-loading Iranian rewards to create a disincentive for the next administration to walk away from the agreement. The JCPOA disproportionately aided Iran’s military; little if any money had trickled down outside Islamic Revolutionary Guard Corps circles, the insistence of Vice President Biden’s aide Colin Kahl notwithstanding.

But, by bolstering its missile programs and reiterating a desire to commit genocide against Israel, the Iranian leadership is shifting the cost-benefit analysis in Washington from sticking with the agreement to walking away. To abide by the nuclear agreement is to trade a weak inspections mechanism (that falls short of permanent compliance with the Additional Protocol) with a well-resourced program to allow Iran to develop missiles capable of delivering nuclear warheads to targets near and far. Whereas the White House trumpeted the JCPOA as a multilateral triumph, unilateral action now provides the best opportunity to stop that breakout. In short, Kerry’s flexibility in the face of Zarif’s brinkmanship did not enable the JCPOA as Kerry and his enablers may believe; it may have provided the fatal flaw that will abort the JCPOA and initiate a far more severe conflict in the near future.

Manipulating international law as part of anti-Israel lawfare

By Robbie Sabel, JCPA 2013
• 
Israel’s record of compliance with international law is remarkably strong. In a long series of decisions, the Israeli High Court has ordered the Israeli government, army, and security services to change policies that, in the court’s view, were in violation of customary international law. The court has even intervened in actual combat situations.
• Perhaps because Israel’s detractors are aware of this reality, they have undertaken a process of manipulating international law in a way that invents rules that are applied only to Israel and not to other states or in other situations.
• Israel’s detractors invented a new international legal concept called “illegal occupation.” In an armed conflict, international law clearly permits military occupation. The UN Security Council has never declared Israeli occupation to be illegal. U.S. occupation of Iraq after the Second Gulf War was universally considered a legal act.

• It is often presented manipulatively as a legal axiom that the Green Line already has the status of a legally binding border. By signing a peace agreement, Israel and Jordan have now mutually acknowledged the termination of the Armistice Agreement and its demarcation line. The validity of an armistice line expires with the expiration of the armistice. Therefore, formally, there is no longer any legal validity to the Green Line.
• By any accepted legal standard, Gaza is not under Israeli occupation. International law requires that, for an area to be considered as under occupation, the territory must be “actually placed under the authority of the hostile army.” Again, there appears to be a unique definition of “occupation” applicable only to Israel.
• The essence of any legal system is that law applies equally to all. Devising tailor-made rules of international law for application only where Israel is concerned undermines international law and can have an insidious and corrosive effect on the rule of law in general.
The attempts to brand Israel as a state that violates rules of international law have become a recurrent feature of the “lawfare” being waged against Israel. Although no state has a perfect record in this regard, Israel’s record of compliance with international law is remarkably strong. Israeli courts enforce customary international law as part of the “law of the land” and in a long series of decisions, the Israeli High Court has ordered the Israeli government, army, and security services to change policies that, in the court’s view, were in violation of customary international law. Perhaps uniquely among national court systems, the court has even intervened in actual combat situations. The Israeli government has a near-impeccable record of complying with such court orders.
In a personal vein, this author can attest to a not-very-friendly senior Egyptian negotiator telling him in a private conversation that although negotiating with Israel was “hell,” he was aware that once agreement was reached, Israel had a very good record of complying with its undertakings.
Perhaps because Israel’s detractors are aware of this reality, they have undertaken a process of manipulating international law in a way that invents rules that are applied only to Israel and not to other states or in other situations. Blatant examples of such manipulation include:
UN General Assembly Resolutions
According to the UN Charter, UN General Assembly resolutions have the status of recommendations to states and are not binding.1 They do not create international law and no state can be “guilty” of violating such a resolution. Such resolutions are political statements dictated by whatever group of states can muster a majority vote on a given issue at a given time. A prime example is UN General Assembly Resolution 194 (II) of 1948, which proposed measures to resolve the Arab-Israeli dispute including the issue of refugees.2 All the Arab states that were UN members at the time voted against the resolution, as they objected to any recognition of Israel.3 The General Assembly has subsequently readopted the part of the resolution concerning the refugees.4
The Palestinian legal position is that this article has thus miraculously been turned into a binding rule of international law. The legal reality is, however, that even where the General Assembly reiterates such a resolution, it nevertheless remains nonbinding. In the words of a leading French jurist, “Neither is there any warrant for considering that by dint of repetition, non-normative resolutions can be transmuted into positive law through a sort of incantatory effect.”5 No state is on record stating that it accepts General Assembly resolutions, as such, as binding on itself. Nevertheless, the claim is frequently heard that Israel is “violating” General Assembly resolutions. Apparently there is an interpretation of the UN Charter that is applicable only to Israel.
UN Security Council Resolutions
Those anti-Israeli lawfare tacticians who are aware that UN General Assembly resolutions are not binding try to charge Israel with violating UN Security Council resolutions. Here again the critics ignore the explicit rules set out in the UN Charter. Security Council resolutions are only binding where the council, acting in accordance with Chapter VII of the charter, declares that there has been an act of aggression by a state or that a state’s action is a threat to world peace or security.6
The Security Council has never made such a declaration regarding Israel, nor for that matter has it ever made such a declaration regarding Arab aggression against Israel. Like the General Assembly, the Security Council is a political body and its resolutions are political statements and not legal judgments. Members of the UN have undertaken to implement Security Council resolutions only when they are decisions adopted under Chapter VII. Nevertheless, this stipulation of the charter has not prevented Israel from being charged with “violating” nonbinding Security Council resolutions.
“Illegal” Military Occupation
There is a legitimate debate as to whether the West Bank is indeed the territory of an enemy sovereign state and hence subject to the rules of military occupation. Beyond this debate, though, the bon mot used by nearly all anti-Israeli publicists is that Israeli military occupation is illegal as such.7 However, in an armed conflict, international law clearly permits military occupation. It is interesting to note that the UN Security Council has never declared Israeli occupation to be illegal. The Security Council’s reticence in condemning Israeli occupation as illegal is not necessarily derived from sympathy with Israel’s policies but presumably from the awareness that occupation is perfectly legal in case of armed conflict.8
The permanent members of the council no doubt recall the Allied occupation of Germany and Japan after World War II, clearly legal in accordance with the laws of armed conflict. More recently, U.S. occupation of Iraq after the Second Gulf War was universally considered a legal act and its legality even received explicit confirmation by the Security Council.9 Applying the laws of military occupation to the West Bank may not have earned Israel much public relations kudos, but it is legal and the alternative, namely, applying Israel law, could have been deemed to be annexation. The fact that Israel was acting legally has not, however, deterred its detractors from attempts to attach to Israeli activity the invented new international legal concept of “illegal occupation.”
The “Right of Return” of Arab Refugees
In accordance with international law, a state must allow its nationals into its territory and hence it is possible to speak of a “right of return” of nationals to the state of their nationality. International treaties, to which Israel is a party, refer to the right, with some restrictions, of persons to return to “their own country.”10 The major regional human rights treaties explicitly clarify the phrase “their own country” as applying only to nationals of the country.11 Some academicians believe such a right should also apply to permanent residents,12 but, apparently, no state has adopted such a position and governments interpret the rule as meaning that the right applies only to nationals.
The manipulation of the rule as proposed by the Arab states, however, is that there is “a well-established norm in international law and practice” – namely, the right of all Palestinian Arab refugees to “return” to Israel, even though they are neither nationals nor permanent residents of Israel.13
The interpretation of the phrase “Palestinian refugees” in this context has, moreover, been extended to include all direct descendants. The Arab claim is now that even though the person involved was born in another country as were his parents and grandparents and they may be nationals of another state and permanent residents of another state, nevertheless international law grants them a right to “return” to Israel. It is estimated that under such a definition over five million persons could claim a “right of return” to Israel. No such interpretation of the term “refugee” or “right of return” has been held applicable in any situation other than the Israeli-Palestinian dispute. It should be added that Palestinian negotiators’ adherence to their demand that Israel recognize such a “right” has made it very difficult to reach a pragmatic solution to the problem.
“Apartheid Wall”
There is a clear attempt to smear Israel with the abhorrent phenomenon of racism and apartheid by describing Israel’s security barrier as an “apartheid wall.”14
Any border fence serves to separate areas and one may hope for a world with no borders. However, for so long as Israel has to face terrorist acts, it is legitimate for it, as it is for other states, to erect a barrier to prevent terrorist attacks and illegal crossings.15 Those calling the fence the “apartheid wall” make frequent reference to the advisory opinion of the International Court of Justice on the issue.16 They fail to point out that, in this opinion, the International Court of Justice made no reference whatsoever to “apartheid” or analogy with “apartheid.” Furthermore, although the court criticized the route of the “wall” as being beyond the 1949 “Green” Armistice Line,17 the court was careful not to deny Israel’s right in principle to build such a security fence.
Apartheid has been defined as a “social and political policy of racial segregation and discrimination enforced by white minority governments in South Africa from 1948 to 1994.”18 A dictionary definition is “racial segregation; specifically: a former policy of segregation and political and economic discrimination against non-European groups in the Republic of South Africa.”19 Among the prominent features of the South African apartheid policies were: prohibition of marriages between white people and people of other races;20 prohibition of extramarital sexual relations between white and black people;21 prohibiting a black person from performing any skilled work in urban areas except in those sections designated for black occupation;22 prohibiting strike action by blacks;23 preventing Africans from receiving an education that would lead them to “aspire to positions they wouldn’t be allowed to hold in society.”24 Black students were banned from attending major white universities.25 In all public amenities, such as restaurants, swimming pools, and public transport, “Europeans Only” and “Non-Europeans Only” signs were put up to enforce this legislation.26 Even Israel’s most virulent detractors presumably must feel uncomfortable in claiming this is the situation in Israel.
Aware that accusations of actual apartheid in modern Israel lack any credence, the accusation is made that the very fact that Israel is a Jewish state proves that there is an “apartheid-like” situation.27 One website writes that “apartheid began and is rooted in the very establishment of the colonial Jewish State.”28  The crux of the accusation against Israel lies in the often-repeated charge that its racism “is symbolized most clearly in Israel’s Jewish flag, anthem and state holidays.”29 The accusers have not a word of criticism against the tens of liberal democratic states that have Christian crosses incorporated in their flags, nor against the numerous Muslim states with the half-crescent symbol of Islam as their state symbol. Again, there appears to be a special legal definition of apartheid where Israel is concerned.
Perhaps the most chilling indication of the real purpose behind the “Israel is apartheid” campaign is revealed in one of the most active websites promoting it. They write that among the goals of “prosecution for the crime of apartheid” is to “enable the true majority to return to power over their own lands, while protecting the rights of ethnic minorities.”30 In other words, the real goal behind the apartheid campaign is the denial of the legitimacy of the State of Israel and the determination that the only situation the Jewish population in Israel can hope for is that of a “protected” ethnic minority in an Arab Palestinian state.
The Legal Status of an Armistice Demarcation Line
An Israeli government may have to decide whether to adopt the 1949 Israel-Jordan Armistice Demarcation Line, known colloquially as the “Green Line,” as the negotiating basis for a border between Israel and a future Palestinian state. This issue, however, is often presented manipulatively as a legal axiom that the Green Line already has the status of a legally binding border.
The 1949 Israel-Jordan Armistice Agreement states that the Green Line is an Armistice Demarcation Line,31 and that it should not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties.”32 The Armistice Agreement then continues explicitly to determine that: “The Armistice Demarcation Lines…are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either party relating thereto.”33 Neither Israel nor Jordan ever designated the Green Line as their international border. Before 1967, Jordan and other Arab states refrained from recognizing the Green Line as a border because of their reluctance to accept the legitimacy of Israel even within the Green Line.
By signing a peace agreement, Israel and Jordan have now mutually acknowledged the termination of the Armistice Agreement.34 In accordance with international law, international boundaries survive the demise of the treaties that established them. This, however, is not true of ceasefire or armistice-demarcation lines. The temporary nature of a ceasefire or armistice line is such that their validity expires with the expiration of the ceasefire or armistice. Therefore, formally, there is no longer any legal validity to the Green Line.
UN Security Council Resolution 242, accepted by all the parties to the dispute as an agreed framework for peace negotiations, makes no reference to the Green Line. The Israel-Jordan Peace Treaty refers to the “boundary definition under the Mandate” in defining the Israeli-Jordanian border; again, no reference was made to the Green Line.35
The UN General Assembly Resolution requesting an International Court of Justice Advisory Opinion on “Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory” made no reference to the Green Line. The written statement of the League of Arab States addressed to the International Court in this case refers to “the Armistice line that now marks the boundary between Palestine and Israel.” The statement goes on, however, to observe: “The purpose of the armistice was not to establish or recognize any territorial, custodial or other rights, claims or interests of any party.”36 The Jordanian judge Al?Khasawneh, in his separate opinion, wrote that “There is no implication that the Green Line is to be a permanent frontier.”37 Even the final court advisory opinion, which strongly criticizes Israel for the route of the “Wall,” explicitly states that its advisory opinion “involves no implication that the Green Line is to be a permanent frontier.”38
Nevertheless, the claim continues to be heard that as far as Israel is concerned, a temporary armistice line has the legal status of a permanent boundary.
Commissions of Inquiry
When the United States or the United Kingdom or other democratic states set up judicial committees of inquiry on issues involving their armed forces, world opinion tends to see it as a reflection of the democratic nature of the states concerned. This author has failed to find instances of international demand that such commissions must include foreign nationals.
Israel has a well-earned reputation for its independent and impartial judiciary. Nevertheless, when Israel sets up such a judicial commission of inquiry, it nearly automatically encounters demands that the commission must include non-Israeli participation. Thus, apparently, there is one international rule for Israeli commissions of inquiry and a different one for the rest of the world.
“Occupied” Gaza
Since the 2005 Israeli unilateral withdrawal from Gaza, there has been no Israeli control of the Gaza area. The area is administered by Hamas. There is no Israeli military government in Gaza. The laws in Gaza, both criminal and civilian, are Hamas laws. Hamas controls the economy, the taxes, the courts, the police, and the prisons. It has its own, heavily armed, militias. The Hamas government palpably was not appointed by Israel and is not subservient to Israel. By any accepted legal standard, Gaza is not under Israeli occupation. Israel maintains a blockade in an attempt to prevent arms shipments from entering Gaza; this, however, does not constitute “occupation.” Furthermore, Gaza has a land border with Egypt, over which Israel has no control whatsoever.
International law requires that, for an area to be considered as under occupation, the territory must be “actually placed under the authority of the hostile army.”39 The International Court of Justice gave its opinion that “territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.”40 In a later case the court reconfirmed its position, stating that “Occupation required the exercise of actual authority by the foreign forces” (emphasis added).41 Even the International Committee of the Red Cross (ICRC) report on the subject reached the conclusion that “occupation could not be established or maintained solely through the exercise of power from beyond the boundaries of the occupied territory; a certain number of foreign ‘boots on the ground’ were required.”42 The ICRC report refers to “the traditional rules about occupation with their strong emphasis on the factual basis of a continuing presence on the ground.”43
For political reasons the PLO wants to retain Gaza’s status as “occupied” territory.44 What is more surprising, however, is that the International Committee of the Red Cross continues to maintain that Gaza is under Israeli occupation.45 Again, there appears to be a unique definition of “occupation” applicable only to Israel.
Laws of Armed Conflict
The laws of armed conflict are among the better-established rules of international law and many of the treaties on the issue are regarded as reflecting customary international law. Democratic states, including Israel, incorporate these rules into the standing instructions and military manuals of their armed forces. However, regarding Israel there has been a recent attempt to invent two new rules:
Proportionality in combat
The law of armed conflict recognizes the requirement of proportionality in two contexts. First, it is prohibited to attack a military target if it will cause civilian casualties that are excessive in relation to the military advantage to be obtained.46 Second, measures of self-defense must be proportionate to the threat.47 However, regarding Israel a new rule seems to have been developed: that in actual combat Israel must not use weapons that are not proportionate to the weapons used by terrorist groups. Regarding other states, there is no such rule; on the contrary, all armies try to concentrate superior forces and arms against enemy positions and forces. This universal military practice, however, does not prevent Israel from being accused of using “disproportionate” force in actual combat situations.
Civilian casualties
Civilian casualties are, unhappily, a common feature of armed conflicts. This is particularly true where an enemy places its weapons among civilians, as do Hamas in Gaza and Hizbullah in Lebanon. It is a violation of the laws of armed conflict to deliberately target civilians, and a state may be liable for reckless or negligent targeting. However, as far as Israel is concerned, any enemy civilian casualties are presented as the result of a “war crime,” even though it is acknowledged that Israel takes immense steps to try and prevent and minimize civilian casualties.48
Self-Defense Only against Attacks from States
Perhaps the most flagrant attempt to manipulate international law against Israel was the International Court’s majority decision that Israel had no right of self-defense against terrorists operating from the territories under control of the Palestinian Authority. The court decided that it would not even examine whether Israel’s security barrier was a legitimate act of self-defense against acts of terrorism. The court based its decision on its interpretation of Article 51 of the UN Charter, which recognizes the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” The court interpreted Article 51 as requiring that an attack must emanate from a foreign state, although there is no mention in the UN Charter of such a requirement.
The court consequently brusquely determined that “Article 51 of the Charter has no relevance in this case.”49 Its conclusion was that Israel had no right of self-defense whatsoever against terrorist acts emanating from territories under the control of the Palestinian Authority. The British, Dutch, and U.S. judges on the court were the only ones who refused to concur with this startling ruling.50 This strange dictum of the court has not been followed by other states, and one academic writer notes that “State practice strongly suggests that the international community has recognized a right to use force in self-defense targeting nonstate actors in foreign territory to the extent that the foreign state cannot be relied on to prevent or suppress terrorist activities.”51
Conclusion
Israel has a strong record of complying with international law and its judicial system ensures that it will continue to do so. The essence of any legal system, however, is that law applies equally to all. This principle is being undermined by the attempts of Israel’s foes and detractors to manipulate international law as part of their lawfare against Israel. Devising tailor-made rules of international law for application only where Israel is concerned undermines international law and can have an insidious and corrosive effect on the rule of law in general.
*     *     *
Notes
1 “Except for certain internal matters, such as the budget, the Assembly cannot bind its members. It is not a legislature in that sense, and its resolutions are purely recommendatory.” “The Assembly is essentially a debating chamber.” Malcolm Shaw, International Law, sixth edition (2008), p. 1212.
2 UNGA Resolution 194 (III), UN GAOR, 3rd session, part I, 1948, Resolutions, pp. 21-24.
3 Israel was not a member of the UN at the time.
4 Article 11 of UNGA Resolution 194 (III), UN GAOR, 3rd session, part I, 1948, Resolutions, pp. 21-24.
5 Prosper Weil, “Towards Relative Normativity in International Law,” 77 American Journal of International Law 413 (1983).
6 “Most Council resolutions contain only exhortations or recommendations.” “A Chapter VII resolution has therefore become shorthand for a legally binding measure.” Anthony Aust, Handbook of International Law 2005 (2009), p. 214.
7 For example, “Europe is ultimately taking part in the subjugation of the Palestinians by funding Israel’s illegal occupation.” http://www.counterpunch.org/2013/03/13/funding-and-denouncing-israeli-occupation
8 In a case submitted by the PLO against the French company that built the Jerusalem light rail, the French Court of Appeal recently reconfirmed that occupation is legal. http://fr.slideshare.net/fullscreen/yohanntaieb3/decision-de-lacourdappel/1; : http://www.israel-flash.com/2013/04/la-cour-dappel-de-versailles-olp-c-alstom-et-veolia-conclut-que-loccupation-par-israel-nest-pas-illegale/#ixzz2QWVjg6eB
9 S/RES/1483 (2003). http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N03/368/53/PDF/N0336853.pdf?OpenElement
10 Article 5-(d)(ii), Convention for the Elimination of All Forms of Racial Discrimination 1965, entered into force 4 January 1969, 660 UNTS 195; Article 12(4), International Convention on Civil and Political Rights 1966, entered into force 23 March 1976, 999 UNTS 171.
11 American Convention on Human Rights 1969, entered into force 18 July 1978, 9 ILM 673 (1970); European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, entered into force 3 September 1953, 213 UNTS 221; Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1963, entered into force 2 May 1968, ETS 46.That the right of return is restricted to nationals is also reflected in the “Declaration of Principles of International Law on Mass Expulsion,” 62 International Law Association Conference Report 13 (ILA 1986), Articles 1, 2, 3, 7.
12 See, e.g., Oriol Casanovas, “La Protection Internationale des Réfugiés et des Personnes Déplacées dans les Conflits Armés,” 306 Recueil des Cours 2003 (2005) 86.
13 Refugees Background, Palestine Liberation Organization, Negotiations Affairs Department, Permanent Status Issues. http://www.nad-plo.org/permanent/refugees.html
14 Those criticizing the construction tend to use the word “wall” and call it a “separation wall” though in fact only a tiny fraction of the total length of the barrier (less than 3 percent) is actually a thirty-feet-high concrete wall. One organization has published a three-hundred-page treatise “proving” that Israel is applying apartheid. Occupation, Colonialism, Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian territories under international law, Democracy and Governance Programme of the Human Sciences Research Council of South Africa. http://www.hsrc.ac.za/Media_Release-378.phtml
15 For examples of other democratic states that have built similar fences see: http://www.jewishvirtuallibrary.org/jsource/Peace/fence.html
16 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004.
17 See this author’s critique of the court’s ruling on the issue, R. Sabel, “The International Court of Justice Decision on the Separation Barrier and the Green Line,” Israel Law Review 38, 1-2 (2005), p. 316.
18 http://www.africanaencyclopedia.com/apartheid/apartheid.html
The Statute of the International Criminal Court defines apartheid as one of the crimes against humanity, being “inhumane acts….committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” (Article VII of the Statute of the ICC).
19 http://www.merriam-webster.com/dictionary/apartheid
20 Prohibition of Mixed Marriages Act, Act No. 55 of 1949.
21 South African Immorality Amendment Act, Act No. 21 of 1950; amended in 1957 (Act 23).
22 South African Bantu Building Workers Act, Act No. 27 of 1951.
23 South African Native Labour (Settlement of Disputes) Act of 1953.
24 South African Bantu Education Act, Act No. 47 of 1953.
25 South African Extension of University Education Act, Act No. 45 of 1959.
26 South African Reservation of Separate Amenities Act, Act No. 49 of 1953.
27 “Israel has made itself into a white colonial settler state, mimicking South Africa before the end of apartheid.” Lisa Rofel, Anthropology, UC Santa Cruz. http://www.arabicnews.com/ansub/Daily/Day/060609/2006060907.html
28 The Palestinian grassroots Anti-Apartheid Wall Campaign. http://www.stopthewall.org/downloads/pdf/4PageFactSheetOctober9.pdf
29 Daryl J. Glaser, “Zionism and Apartheid: a moral comparison,” Ethnic and Racial Studies 26, 3 (2003), pp. 403-421,403, 408.
30 http://www.geocities.com/savepalestinenow/internationallaw/studyguides/sgil3k.htm
31 1949 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 656 UNTS 304, Article III, paragraph 2.
32 Article VI, paragraph 8, ibid.
33 Article VI, paragraph 9, ibid. Article 5(2) of the Israeli-Egyptian Armistice Agreement has an even more explicit disclaimer, which states: “it is not to be construed in any sense as a political or territorial boundary and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”
34 While the Israel-Jordan Peace Agreement does not explicitly state that it supersedes the Armistice Agreement, the two agreements are patently incompatible.
35 Article 3(1), 1994 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan. Annex I (a) Article 2 (A)(7) of the treaty provides that the section of the boundary separating Jordan from the West Bank is marked on the map as an “ administrative boundary between Jordan and the territory which came under Israeli Military government control in 1967.”
36 Written Statement of the League of Arab States, January 2004, paragraphs 1.2, 5.15.
37 Separate Opinion, Judge Al?Khasawneh, paragraphs 10, 11.
38 C/2004/03, paragraph 35.
39 Article 42 of the 1907 Hague Regulations.
40 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, paragraph 78.
41 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), decision of 19 December 2005, Para.173.
42 ICRC, Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro Legal adviser, ICRC, Summary, Article 1. http://www.icrc.org/eng/resources/documents/publication/p4094.htm
43 ICRC,Occupation and Other Forms of Administration of Foreign Territory, Report prepared and edited by Tristan Ferraro Legal adviser, ICRC, p. 48.
http://www.icrc.org/eng/resources/documents/publication/p4094.htm
44 See on this issue Dore Gold, “Legal Acrobatics: The Palestinian Claim that Gaza is Still ‘Occupied’ Even After Israel Withdraws.”
http://www.icjs-online.org/indarch.php?eid=490&ICJS=2394&article=536
45 See, e.g., http://www.icrc.org/eng/where-we-work/middle-east/israel-occupied-territories/index.jsp
46 Article 51 (5) (b) of 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts.
47 The Caroline Case, J. Moore, Digest of International Law 2, p. 412 (1906).
48 See, e.g., the Report of the UN Fact Finding Mission on the Gaza Conflict (A/HRC/12/48) (2009) The “Goldstone” Report.
49 I CJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, paragraph 139.
50 Separate opinions of Judges Higgins, Buergenthal, and Owada, ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004.
51 Kimberly N. Trapp, “Back to Basics: Necessity, Proportionality and the Right of Self-Defence Against Non-State Terrorist Actors,”56 International and Comparative Law Quarterly, pp. 141, 156 (2007).

– See more at: http://jcpa.org/article/manipulating-international-law-as-part-of-anti-israeli-lawfare/#sthash.0xVY4yJ5.dpuf

Is the Obama doctrine the new American doctrine?

 Shmuel Rosner Jewish Journal of Los Angeles 3-14-16

http://www.jewishjournal.com/rosnersdomain/item/is_the_obama_doctrine_the_new_american_doctrine

A.

The Obama Doctrine by Jeffrey Goldberg is an enviable achievement. If you have the time to read just one article this week – read this one. If you have the time to read just one this month – still this one. If you have the time to read just one this year – well, we have a long way to go until the end of the year, but it still might be this one.

The Obama Doctrine by Jeffrey Goldberg is also a troubling achievement. Many pundits have already parsed some of the problematic details and pointed to the many concerning statements made by President Obama in this long interview. But the most troubling aspect of the article is the fact that it appeared now, rather than a year from now. A President of the United States who still has a year of presidency ahead of him decided that the time to insult world leaders and show his disdain for countries and peoples around the globe is now. He does not much care what the Prime Minister of Britain might think as he reads this article. He does not much care how the Saudis react to this blunt statement of inattentiveness. He does not consider the feelings and fears of Ukrainians.

This is the same President that faked insult when Prime Minister Netanyahu of Israel dared to accept an invitation to speak in Congress – the same President that complained about the “breach of protocol” on Netanyahu's part.

B.

There’s a wonderful line in Love and Kisses, the short sweet song by Sam Phillips. It reads: “History is written to say it wasn’t our fault, wasn’t our fault.”

Reading the Obama interview, this line kept playing in my head. Libya is not Obama’s fault – it is Cameron’s and Sarkozy’s. Palestine is Netanyahu’s. Ukraine is either Bush’s fault (he did not respond in Georgia) or just the fault of unfortunate geography. Afghanistan – it is the Pentagon that “jammed” Obama on a troop surge. Syria – the stakes for other players were higher, so the US was unable to change much. The Saudis need to learn to “share the neighborhood” with Iran and have nothing to complain as long as they treat women the way they do (because the Iranians treat their women exactly as Obama expects).

Goldberg’s history was written to say it wasn’t Obama’s fault.

C.

Niall Ferguson responded to Obama’s interview by penning the following observation: “Power corrupts in subtle ways. It appears to have made Obama arrogant.” There’s no better way to describe it: Obama respects no one. As Daniel Drezner noted: “The essay is shot through with disdain from both the president himself and his White House staff about the opinions and judgments of the array of foreign policy think tanks and institutions in Washington.” But it is not just think tanks that the President has no respect for: it’s most of the leaders of Europe, and the leaders of all Arab countries, and, of course, Prime Minister Netanyahu, who deserves “his own category.”

I wonder why – why does Netanyahu ,of all leaders, deserve a special “category?” Obama, writes Goldberg, “has long believed that Netanyahu could bring about a two-state solution that would protect Israel’s status as a Jewish-majority democracy, but is too fearful and politically paralyzed to do so.” Suppose that this is true – and of course it isn’t – but suppose that this is true: does it justify a special category? Is Netanyahu the only leader that has failed to achieve a goal Obama finds worthy because of fear and political considerations? Even the article itself counts similar faults in other leaders. But these leaders do not get to be made special.

D.

If you are a leader of a country in the Middle East and you read The Obama Doctrine, there are two questions you must ask yourself:

1. What happens in the long months until Obama departs from the presidency?

2. What happens after Obama departs from the presidency?

The first question is important: Obama still has power to make things happen. He can still impact the trajectory of the Syrian war, he still needs to decide how to act following Iran’s missiles tests.

The second question is more important, and much broader in nature. It is essentially the question: is it Obama or is it America? In other words: is Obama the exception and when his term ends the US will go back to its traditional foreign policy – or maybe this president heralds a new era in American foreign policy?

E.

Translate the first question to Hebrew and what you get is this:

Will Obama use his last year in office to teach Israel – or Netanyahu – a lesson and move forward with a plan that will complicate Israel’s situation vis-à-vis the Palestinians? A couple of days ago, a New York Times story suggested such a possibility, and the Goldberg interview makes any hope for Obama being hesitant vanish. He no longer cares what other people or countries might think of him.

On the other hand, the interview also makes his insistence on advancing the Israeli-Palestinian peace process even more puzzling than it was before. Obama chose not to do anything about Syria because “the danger to the United States posed by the Assad regime did not rise to the level of these challenges” – but chooses to do something about Palestine (which is clearly of even lower significance to the direct interests of the United States)?

F.

Translate the second question to Hebrew – the long term question - and what you get is much more complicated:

If Obama is an exception, then all Israel has to do is let his term lapse and wait for Clinton or Trump to hopefully make things better. Eight years of Obama are a long time, but if the basic contours of the US-Israel alliance have not changed as a result of it, the damage done to these relations by Obama are manageable.

On the other hand, if Obama’s approach to the world is a manifestation of what a majority of Americans want – then Israel has a long-term problem that it will need to address. In short: the need to reduce its reliance on American support and find ways to compensate for the void that will be created by America's absence.

THE ATLANTIC

The Middle East Is Unraveling—and Obama Offers Words

• An accounting of the president’s actions and inactions
• HISHAM MELHEM MAR 11, 2016
• 
  

Jeffrey Goldberg has conducted the most extensive autopsy of President Obama’s foreign policy—and revealed that it is based on the doctrine that the best leader is the one who leads the least, and contemplates and talks the most.

Obama is an impressive wordsmith. The most important milestones in his political career, before and after he became president, have been well-crafted speeches. He has lived by words—eloquent, searing, soaring, contemplative words—to the point where he might equate words and concepts with what the ancient Greeks called praxis, or practical action. In Obama’s world, sharp words can be almost as effective as sharp swords.

Goldberg’s article delves into some of these pivotal speeches: the Cairo speech, the speeches on the Arab uprisings, addresses on combatting terrorism and the agony of Syria. Most of the pledges contained in these speeches ring hollow now; instead of ushering in a “new beginning” with the Muslim world, Obama’s relations with Pakistan, Turkey, and the Arab states are strained and characterized by mutual contempt. Obama told those Arabs struggling non-violently for basic rights such as free speech, gender equality, the freedom of peaceful assembly, and the right to choose their leaders that “our support for these principles is not a secondary interest.” But as I have written, when Obama “looked at the enormity of the challenges posed by the Arab uprisings, particularly when they became more violent, he simply flinched.” Obama did inherit a dysfunctional Arab state system and fraying civil societies, yet his own ill-conceived actions and inactions have contributed significantly to the great unraveling of the Middle East.

In these speeches, as in Goldberg’s article, Obama comes across as a scholar who oscillates between providing compelling analysis of the problems and trends he is confronting or anticipating, and a tireless sophist and procrastinator weaving elaborate excuses and justifications for dithering and hand-wringing. His explanation of his passivity regarding Russia’s rampaging in Ukraine and Syria is rooted in denial. Obama has convinced himself that President Vladimir Putin’s military intervention in Syria came “at enormous cost to the well-being of his own country.” He believes the Russians “are overextended. They’re bleeding.” Yes, Russia’s economy is contracting, and Putin is in charge of an autocratic oligarchy. And yet Russia has filled the vacuum Obama helped create in Syria when he failed to act on his promises and deliver on his threats. The Russia-Iran-Assad regime axis is the one determining the tempo of military operations and diplomatic maneuvering in the Syrian theater, not the United States and its allies. Putin has diabolically exploited the Syrian refugee challenge in Europe to weaken the institutions of the European Union and to divert Europe’s attention from his predations in Ukraine. Because of Obama’s dithering, Syria’s war has metastasized into a Middle Eastern and European crisis.

What is most jarring is Obama’s tendency to distort the views of his detractors to the point of dissembling by reframing their original positions. He perfected this formula on critics of his maddening approach to Syria, including senior members of his administration, by belittling their proposals for establishing no-fly zones, or protected safe havens in Syria, as “half-baked” ideas or “mumbo-jumbo” proposals. Obama told Goldberg that his critics say, “You called for Assad to go, but you didn’t force him to go. You did not invade.” But Mr. President, who asked you to invade Syria? Could you please name one serious critic who said so? Obama speaks expansively and derisively about the “Washington playbook” and what he describes as the foreign-policy establishment’s “credibility” fetish; the playbook, according to Obama, tends to prescribe militarized responses to different crises in order to maintain America’s credibility. But credibility, particularly for a great power, is the coin of the realm. And it need not be purchased by force every time.

Obama boasts that he is “very proud” of the moment, on August 30, 2013, when he retreated from his threat to punish the Assad regime militarily following its mass murder of more than 1,400 innocent Syrian civilians, many of them children, with chemical weapons. He may view that date as his day of liberation from promises he made to help people who have been at the receiving end of weapons of mass destruction. But for millions of Syrians, August 30, 2013 is a day that shall live in infamy.

Obama is right to be resentful of America’s Sunni Arab allies, who foment sectarianism and anti-Americanism and help radical jihadists who are wreaking havoc in Syria and Libya. His frustration with Saudi Arabia, Qatar, and Egypt is well-known. Obama’s retrenchment from the Middle East reflects deep disillusionment with the region.

But it also reflects disdain for an Arab world that should be avoided. Obama ignores those states seeking tepidly to implement reforms and fight terrorism. He coldly and correctly diagnoses the ills of the majority of Arab states: predatory autocratic regimes, violent Islamist groups, diminishing civic traditions, rampant sectarianism and tribalism. But he does not see any ray of hope or promise in this bleak scene. It is as if the Arab world is inhabited only by angry Arab youths “thinking about how to kill Americans,” and totally bereft of decent Arab men and women, like those millions who marched and struggled against tyranny and called for freedom, empowerment, dignity, and modernity. He laments that if the U.S is not talking to the young people of Asia, Africa, and Latin America “because the only thing we’re doing is figuring out how to destroy or cordon off or control the malicious, nihilistic, violent parts of humanity, then we’re missing the boat.” It is as if the president of the United States is declaring a whole generation of Arabs as the devil’s rejects; it is as if he wants to have large swaths of the Middle East quarantined indefinitely.