One of the most powerful objections one could raise to the critique I’ve been making regarding Israel and international law would be that it is a “shooting the messenger” – style argument. “So what if the institutions condemning Israel as being in violation of international law are flawed or even corrupt?” the argument goes. “If Israel is guilty of what they say, then it shouldn’t matter who is making the accusations.”
This is actually a strong argument, which also implies another one that says it doesn’t matter if other nations (including Israel’s accusers) are guilty of even greater human rights “crimes,” since the question under discussion is Israel’s guilt (or innocence) of the charges.
Israel’s supporters need to treat this argument with respect since Israel does not stand alone with regard to the developing framework of international institutions and rules, so should not be quick to dismiss the entire edifice as illegitimate.
In order to counter this argument, one would need to demonstrate that there exist objective standards for judging whether these accusations are unfair or not. And fortunately, we can go back to our original discussion of the nature of law to find such standards.
If you recall, this analysis began by describing the rule of law (based on consent and enforcement) representing a pact between generations to believe (and raise their children to believe) that the law is fair and thus worth preserving. And there are some situations which have reasonably shaken this belief, (regardless of the societies in which these situations have emerged).
The first is inequality before the law. After all, the law is meant to be impartial (and blind), applying equally to rich and poor, aristocrat and worker, well-connected and isolated. And if it can be demonstrated that law is applied unequally on a systematic basis, that is a strong foundation for challenging its legitimacy.
Inequality before the law can take two forms: a law that can clearly be applied to many instead being applied to just an unfortunate few. Alternatively, law can be written so selectively and precisely that it is designed to prosecute just a few specific individuals or groups. The non-stop (and systematic) condemnation of Israel by international bodies made up of nations far more guilty of the crimes they accuse Israel of committing fall into the former category. And the increasingly narrow definitions of “Occupation” (which didn’t apply to Jordan and Egypt when they occupied the West Bank and Gaza, but are now considered the worst crime on the planet, just short of genocide) is an example of the latter.
The other principle that can be used to demonstrate the fairness vs. unfairness of law is the notion of selectivity, in this case selectively enforcing parts of a law while ignoring important components (such as context, qualifiers or additional obligations) found elsewhere in the same law.
For example, Israel’s accusers routinely claim the Jewish state is in violation of United Nations Resolution 194 which states that “refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date,” to support the so-called “Right of Return” of Palestinian refugees. But even within this sentence, 194 is meant to apply only to those refugees wishing to “live at peace with their neighbors,” which immediately highlights that it might not apply to refugees who refuse to this day to acknowledge their neighbor’s (Israel’s) right to exist (much less live at peace with her).
Similarly, Article 13 of the UN’s Universal Declaration of Human Rights (which states that “(1) Everyone has the right to freedom of movement and residence within the borders of each state; and (2) Everyone has the right to leave any country, including his own, and to return to his country”) is also frequently invoked to “prove” Israel is in violation of the law by not allowing Palestinians an unlimited right of return. But the legal ambiguity of the territory under dispute in the Arab-Israeli conflict (coupled with the fact that “Palestine” is not a state, and thus cannot be a party to the Declaration), means that this freedom of movement and return can equally be applied to both Jews and Arabs, rather than selectively applied to Arabs alone.
Both strands of unfairness (inequality and selectivity) come together when you look at the aforementioned Declaration of Human Rights in its entirety. For reading through all 30 articles of the Declaration, one is struck by how one region in the world more than any other: the Arab Middle East, exists in contravention to almost every one of these principles: from freedom of the individual to representational government to freedom of religion, peaceable assembly, and equal rights before the law. Yet those who most aggressively flog the distorted reading of just one article of the Declaration are the most passive with regard to the clear meaning of the Declaration as a whole applied outside of Israel’s borders.
BDS advocates making this or that accusation of illegality are free to use their free speech rights to do so (as long as they don’t mind other people using their free speech rights to point out the BDSers inaccuracy and hypocrisy). But accepting newly-devised or newly-developing international law that is supposed to transcend the laws of nation states requires that evolving legal framework prove itself to be at least as good as the national law (especially national law based on the twin pillars of consent and enforcement) it is meant to replace.
Israel, its friends and supporters obviously have their work cut out for them ensuring that new laws are not invented or selectively enforced at their expense. But those who truly believe the emergence of international law to be a positive trend have an even greater obligation to fight the exploitation of this emerging field by ruthless state actors. For if international law turns out to be just another means by which the powerful and numerous can torture their smaller and less powerful rivals, it will join the League of Nations but as an even greater (and costlier) noble failure.