Israel And International Law

Posted 10/3/2005

By Louis Rene Beres


A pertinent examination of John P. Grant and J. Craig Barker,

 Encyclopedic Dictionary of International Law, Second Edition, Dobbs Ferry New York,

 Oceana Publications Inc., 2004, 617 pp.



 Looking over the expanding landscape (one might also say "wreckage") of Israel`s constant security dilemma, few people ever take the trouble to examine this critical matter jurisprudentially. Yet, Israel`s always-problematic fate is dependent, at least in part, upon prevailing and adversarial interpretations of international law. This binding set of rules and procedures impacts critical Israeli policies on both war and peace. It follows that it can now be enormously helpful for us to review some of the key concepts and principles operating under contemporary international law with particular reference to Israel.


 A good place to begin this review is John P. Grant`s and J. Craig Barker`s Encyclopedic Dictionary of International Law. True to the publisher`s claim that it represents a "one-of-a-kind desktop reference on international law," this outstanding book offers clear and informed views of international organizations, diplomatic law, criminal law, human rights, environmental law and economic law. To be sure, it is not in any way focused on Israel. Yet, on this topic, which is of obvious interest to The Jewish Press, the reader would be especially well-advised to consider the lucid entries concerning terrorism; perfidy; genocide; and self-defense.


 With respect to terrorism, all who witness the unending murders of Israeli civilians by various Palestinian terrorist organizations should carefully note the following: "The global UN conventions (on terrorism) share a number of common features: the definition of the proscribed terrorist acts; the obligation to make these acts criminal, subject to each State`s jurisdiction and to severe penalties; the obligation of each State to investigate any allegations and to extradite or prosecute an alleged offender; the facilitation of extradition....the obligation to cooperate...."


 Why, we must ask, are these fundamental (international law calls them "peremptory") legal expectations routinely ignored whenever Israel is the victim? Why have the Oslo Accords and the "Road Map" not enforced any of the most minimal rules of "extradite or prosecute" in matters concerning Israel? Why has the Palestinian Authority never extradited terrorists to Israeli legal jurisdiction? NEVER.


 With respect to Perfidy, the reader may consider Encyclopedic Dictionary`s reference to Art. 37(1) of Protocol I Additional to the Geneva Conventions of 12 August 1949/8 June 1977. Here, it is declared, among other things, that perfidy is committed whenever there is underway "feigning civilian, non-combatant status and feigning protected status by the use xof signs, emblems or uniforms of the UN or of neutral and other States not parties to the conflict." Often, to be sure, we have witnessed Palestinian terrorists shamelessly taking refuge among civilian populations and also the routine Palestinian abuse of Red Crescent ambulances and emblems for the transport of terrorists. Perfidy in its several forms is a serious violation of the Law of War (specifically, a "Grave Breach") and should be identified as such, wherever Israel`s terrorist enemies go well beyond the still-permissible ruses of war.


 Regarding GENOCIDE, the book`s entry — again in generic terms, not specific to the Jewish State — makes it unambiguous that many of Israel`s State and non-State enemies seek much more than a political or military victory. In terms of the listed Convention on the Prevention and Punishment of Genocide, which entered into force on 12 January 1951, genocide means any of series of listed acts that are "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such..." By extrapolation, there can be no doubt that both Palestinian practices and Iranian policies calling for the elimination of Israel are authentically genocidal. Significantly, from the standpoint of international law, these practices and policies are entirely undisguised.


 Finally, the Grant and Barker book offers the Jewish Press reader an entry on self-defense. Although this entry is entirely too brief in view of its existential gravity, it does properly identify two clear expressions of self-defense pertaining to Israel`s essential rights under international law: The longstanding customary right of "anticipatory self-defense" and the conventional right codified in the UN Charter at Art 51 allowing for certain uses of force after an attack has already been suffered.


 Throughout its brief life-history, the State of Israel has had to invoke both expressions of self-defense under international law, and not always with appropriate support from the international community. For example, when elements of the Israel Air Force (IAF) expertly destroyed the Iraqi Osiraq nuclear reactor on June 7, 1981 with a total of one casualty — a preemptive action that undoubtedly saved thousands of American and Israeli lives during the later Gulf War in 1991 ("Operation Desert Storm") — the UN voted to condemn the raid as "aggression." Even President Reagan, speaking publicly at the time, refused to support the Israeli raid as lawful self-defense.


 Here, everyone who holds that Israel is entitled to the same rights under international law as every other state, can now argue persuasively that the preemptive destruction of Osiraq was, in fact, an incontestably law-enforcing action. Once the doctrine of anticipatory self-defense is authoritatively defined and articulated — and once political and geopolitical factors are removed from the consideration — this conclusion follows directly.


 To summarize, the Encyclopedic Dictionary of International Law is not, in any intended way, about Israel or Israel`s position in world politics. But its entries are very carefully researched and creditably described. This is important for all who have seen Israel unfairly accused under international law; for all who now care to properly defend Israel under relevant norms of international law; and for all who have been searching for a single, solid and comprehensive volume from which jurisprudentially sound arguments can be distilled and applied.


LOUIS RENE BERES (Ph.D., Princeton, 1971) is a professor of international law who has published widely on Israel and international law. Some of his law journal articles on this subject have been co-authored with Hon. Zalman Shoval, Israel`s former Ambassador to the United States. His article in defense of the Osiraq raid, co-authored with former IAF Chief of Planning, (COL/Res.) Yoash Tsiddon-Chatto, appears in the volume Israel`s Strike Against The Iraqi Nuclear Reactor 7 June 1981, Menachem Begin Heritage Center, September 2003, Jerusalem, pp. 59-60. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.

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