Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations [...]]]> via LobeLog

by Mitchell Plitnick

Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations should avoid repeating “past mistakes,” said Lavrov.

More importantly, Lavrov illustrates just how broken and vaporous the system of “international law” is when it comes to conflict and protecting civilians. “The use of force without the approval of the United Nations Security Council (UNSC) is a very grave violation of international law,” he said. And there is no question that he is correct.

An intervention in Syria requires the approval of the Security Council in order to be comply with international law. Such authorizations are, quite naturally, exceedingly rare. Not only does it require a majority vote in the Council, but, more importantly, all five permanent members of the Council (the US, Russia, China, Great Britain and France) must also agree. Any one of those countries can exercise its right to veto any resolution before the Council.

The idea, in 1945, made some sense. In the post-World War II era, there was still some question as to whether the US and USSR would perhaps build on their wartime alliance and find a way to work together, but it seemed unlikely. An incentive to maintain some sense of order in the world by working together on such matters and being able to block one-sided moves might have seemed sensible. It’s even worked out that way from time to time. But for the most part, it’s been a recipe for paralysis and a means to prevent action on matters of global concern, rather than to promote it.

The most obvious example of this is the matter on which there has been, by far, more Security Council vetoes than any other: Israel’s occupation of territories captured in the 1967 war. From 1946-1971, the USSR was the overwhelming leader in Security Council vetoes; no other country was even close. These were, of course, mostly Cold War-related resolutions that directly or indirectly took aim at Soviet actions and policies in various parts of the world. Since then, the overwhelming leader has been the United States, with the clear majority of those vetoes being made on behalf of Israel, protecting its occupation and concomitant violence and settlement expansion.

Indeed, in recent years, the problem has gotten so bad that most resolutions regarding Israel-Palestine have been withdrawn in advance, knowing the US will veto as a matter of course. The matter reached its ultimate absurdity in 2011, when the Obama administration vetoed a UNSC resolution that stated nothing at all that was not already official US policy. But the veto was expected and required. The fact that it was such a moderate resolution raised fears among AIPAC and its various fellow travellers in the Israel lobby, and there was a lot of public pressure on Obama to veto. But there’s no reason to think he wouldn’t have done so anyway.

Politics and power, not international law, govern international matters. The fact is that legality will have no bearing on the US decision to attack Syria or refrain from taking action. The decision will be based on strategy and politics.

The system of international law is irreparably broken. Ultimately, any system of law depends entirely on the ability of the judicial body to enact penalties and sanctions on lawbreakers. Such penalties don’t exist for the United States, nor for Russia or China or the other members of the Security Council. Britain and France are more compliant with international law than the others, but this is due not to fear of censure but because their own situations (including widespread European support for abiding by international law, as well as the experience of the two World Wars and the end of colonialism, the latter having removed a lot of European disincentives toward international law) push them in that direction.

Indeed, it is worth asking this question: if one believes that intervention in Syria is needed to stop what is already a humanitarian disaster from getting much worse, should international law be ignored in doing so? It seems inescapable that the answer to that question is yes, and one is then left with only the question of whether military intervention will help or hurt the millions of Syrians in the crossfire.

But at what point can we claim with reasonable certainty that the moral imperative trumps the law? Particularly in a hypothetical world where the law actually matters, where should that line be drawn? In point of fact, few people are so naïve as to believe that military intervention ever occurs for purely humanitarian reasons. It is generally done in order to pursue the invading country’s interests, and if some humanitarian good is done on the way, well that is just fine. And most of the time, the humanitarian interests are only a cover for other goals; the situation is often oversimplified so the public will support the intervention, which is sometimes vastly distorted.

In this instance, it is Russia warning the United States against violating international law, but the US has played the same game on many occasions — the 2003 push for a UN imprimatur for the invasion of Iraq being perhaps the most prominent and revolting instance.

The alternative to a world governed by international law is a world where might makes right. That is, indeed, the world in which we live. The point here is not that international law should be done away with. On the contrary, it must be strengthened exponentially. A legal system that can enjoy at least some insulation from the whims of politics, both domestic and international, is crucial, and the International Criminal Court and International Court of Justice have at least some of that. But more importantly, there must be a mechanism where even the most powerful country can be held accountable for violating the law.

Such a system will never be perfect, of course. Even in the realm of domestic law, we regularly see differences in how it is applied and defied by the rich and the poor. But even the wealthiest individuals have to at least consider their actions when breaking the law. Some system where powerful actors are treated the same as everyone else must be put into place. The answer to how that can be achieved is for better minds than mine, but asking the question is the first step.

Other aspects need revision or at least revisiting as well. Sovereignty is a crucial principle, without a doubt, but it is also used by tyrants to shield themselves from, for example, reprisals under international human rights law. The debate over intervening in Syria following alleged chemical weapons use by the Syrian government is inherently related to the current system of international law, which is broken far beyond the point of having any effectiveness. In many ways, it is an obstacle. It needs to be rebuilt, before more Syrias confront us.

by Mitchell Plitnick

Some days, it must be really difficult to be the State Department’s spokesperson. It doesn’t seem like a bad job to have at all, but on certain questions it’s impossible to not look like an idiot. A lot of those questions are connected to de facto policies which differ [...]]]> via LobeLog

by Mitchell Plitnick

Some days, it must be really difficult to be the State Department’s spokesperson. It doesn’t seem like a bad job to have at all, but on certain questions it’s impossible to not look like an idiot. A lot of those questions are connected to de facto policies which differ from de jure ones. And there is no better example of that than US policy on Israeli settlements.

Back in the early years after the 1967 war, the United States made it clear that the settlements were illegal according to international law. As recently as 1978, the State Department legal adviser confirmed that all Israeli settlements beyond the Green Line are illegal, and through the Carter administration, this was explicit US policy. That policy has never been explicitly revoked, but beginning with the Reagan administration, de facto policy has been ambiguous. Reagan began the trend when he stated that while the settlements were ill-advised, provocative and that further settlement was not necessary for Israel’s security “I disagreed when, the previous Administration refereed to them as illegal, they’re not illegal.  Not under the U.N. resolution that leaves the West Bank open to all people—Arab and Israeli alike, Christian alike.”

The problematic nature of Reagan’s statement — implying that “Arab” equals “Muslim” and “Israeli” equals “Jew”, and more importantly, citing the “U.N. Resolution”, which is not the basis for the illegality of the settlements (the Fourth Geneva Convention is) — notwithstanding, this was the beginning of the US’ refusal to label settlements illegal, terming them instead, at most, “illegitimate.”

The problem for spokespeople arises when they have to parse what that means. Last Monday, in Colombia, Secretary of State John Kerry made what turned out to be an interesting statement. “As the world, I hope, knows, the United States of America views all the settlements as illegitimate,” Kerry said. The use of the word “all” might have worked in Reagan’s day, even in Bill Clinton’s. But today, when the US has allowed Israel to assert that certain settlements are essentially guaranteed (the so-called “settlement blocs” of Gush Etzion, Ariel and Ma’ale Adumim) that little word carries heavy implications.

Israel insists that it’s okay to build in the settlement blocs and the Palestinians should have no problem with that because they’re going to keep them anyway. Israel bases its case on the fact that they have repeatedly stated this publicly without being contradicted and on George W. Bush’s letter to Ariel Sharon in 2004. While that letter did not explicitly state that Israel should keep the blocs, it profoundly altered the diplomatic landscape by promising that the borders between Israel and the envisioned Palestinian state would not be the same as those that existed in 1967 and that alterations would reflect the changed demographics in those, at that time, 37 years. Israel took that to mean it would keep the blocs, and no one, other than some Palestinians (and not the lead spokespeople at the time) said otherwise.

So, when Kerry said all the settlements were illegitimate, it prompted AP reporter Matthew Lee to enter into the following exchange with spokeswoman Jen Psaki:

QUESTION: He said the United States doesn’t see all of the settlement activity as legitimate. Is it correct that – is that correct, that all settlement activity is illegitimate? And I don’t want to get into this illegitimate or illegal, because as far as I’m concerned it’s a distinction without a difference. Does the United States believe that all Israeli settlement activity along – and we can include in that East Jerusalem construction – is all of it illegitimate?

MS. PSAKI: Well, our position on Jerusalem has been clear and has been consistent for some time, which is that we believe it is a final status issue in terms of the discussion of that – of Jerusalem, right?

QUESTION: Mm-hmm.

MS. PSAKI: That is part of the discussion. We have, of course, expressed concerns about construction in East Jerusalem. That hasn’t changed. Our position on settlements we have stated a number of times, and I just stated, and that has not changed either.

QUESTION: Okay. So you do not regard the construction in East Jerusalem as illegitimate. Is that correct?

MS. PSAKI: Well, I think I just stated what we – what our longstanding position has been on construction.

…

QUESTION: But it’s not – hold on, Said. But it’s not that it’s illegitimate?

MS. PSAKI: I don’t have anything more than what I just stated.

QUESTION: Because it is a final status issue?

MS. PSAKI: It is a final status issue that we discussed and worked through.

QUESTION: So one of the questions – okay. So one of the questions that I had that Marie said she would take yesterday –

MS. PSAKI: Mm-hmm.

QUESTION: – was about the 900 homes that were announced for construction in East Jerusalem. Is it fair to say you do not regard those as illegitimate?

MS. PSAKI: Well, we – in terms of those specific – that specific announcement –

QUESTION: Right.

MS. PSAKI: – you know we oppose any unilateral action. Certainly we would include this, that attempt to prejudge final status issues, including the status of Jerusalem. That’s where that building is taking place. That’s our view on it.

QUESTION: Okay. So you’re opposed to it, but you don’t say that it’s illegitimate?

MS. PSAKI: I think you know our position.

QUESTION: Okay. So in terms of illegitimacy then, this legitimacy issue, are existing settlements illegitimate in the eyes of the Administration in the West Bank? Settlements in the West Bank that currently exist now, are they illegitimate, meaning that they should not be part of Israel once there is a peace agreement?

MS. PSAKI: Well, obviously, the question of borders will be worked through and is part of the discussion that will take place and will be ongoing in the weeks and months ahead.

QUESTION: So are existing settlements illegitimate?

MS. PSAKI: Well, we have concerns about ongoing continued settlement activity.

QUESTION: Okay. Do you understand that there’s a serious problem here? Because if you talk about – if all you’re prepared to say is that you don’t accept the legitimacy of continued settlement activity, you are only calling illegitimate settlements that have not been announced, settlements that are, say, a twinkle in the Housing Minister or whoever’s eye. Once they are actually announced or built, you stop calling them illegitimate, and they – and you start saying that that’s a – that’s something to be decided between the parties. Okay?

MS. PSAKI: Well, this has been our position for a number of years.

QUESTION: That’s – well, right. But –

MS. PSAKI: So –

QUESTION: And I’m surprised that no one, and especially me, has picked up on this before, because you have essentially – you don’t oppose settlements at all, because once they’re built or once they’re announced, once plans for them – plans to build them are announced, you’re not opposed to them anymore, because it’s something for the parties to decide whether they’re legitimate or not.

MS. PSAKI: Well, certainly it will be – a big part of the discussion will be that process moving forward.

QUESTION: Right. Do you understand the problem? Do you understand the –

MS. PSAKI: I understand what you’re conveying, Matt. I’m happy to talk back with our team and see if there’s any more clarification we can provide.

QUESTION: Okay. So tell me, am I wrong in thinking that the United States has no position at all except that it is to be decided by the parties on the legitimacy or illegitimacy of settlements that exist in the West Bank today?

MS. PSAKI: I believe you are wrong, Matt. We’ll get you some more clarification.

QUESTION: You believe I’m wrong? Okay.

MS. PSAKI: We’ll get you some more clarification.

QUESTION: Jen –

MS. PSAKI: Mm-hmm.

QUESTION: – in fact, your longstanding position, going back all the way to 1967, and through George Herbert Walker Bush when he was representative at the United Nations, and on to Andrew Young, and on and on and on, that the settlement, that Jerusalem – East Jerusalem, the West Bank, all territory occupied is contrary to the Fourth Geneva Convention, and any alteration stands contrary to that, that you will not support. That is your position, not to reconcile yourself to the facts on the ground, as has been suggested.

Earlier, Lee said to Psaki “Back in 1978, President Carter said that, quote, ‘We don’t see these settlements as being legal.’ Why can’t you say that they aren’t legal?” Psaki, of course, had no answer.

Ultimately, the only people making the argument that the settlements are legal are the Israelis and a handful of apologists who try to bend and twist international law into an interpretation that fits their needs. Otherwise, there is virtually universal agreement that all settlements beyond the Green Line are illegal. Technically, that is also the US position, since there has never been any official statement from a government representative charged with understanding and interpreting international law to reverse the conclusion reached in 1978. But in reality, the political upheaval that would ensue from re-stating that position makes it impossible to do so.

This was made even more interesting when, on August 12, the Washington Post’s internet edition apparently misquoted Kerry saying that the settlements were illegal, rather than illegitimate. When I saw the original version I almost fell over. Had that occurred, it would have been a major game-changer. Quickly, however, the Post corrected the error. I’m sure it was, indeed, an error, because I cannot imagine Kerry actually saying that.

Yes, I cannot imagine the US’ Secretary of State stating what remains the official legal interpretation as set forth by the State Department’s legal adviser and which, outside the US and Israel, is nearly an absolute consensus view. Interesting, even the most pro-Israel of Presidents, be it Reagan, George W. Bush, Bill Clinton or Barack Obama, has seen the settlements as a serious problem. They would all have liked to see Israel put a halt to them. But when George H.W. Bush, who, during his time as Ambassador to the UN, explicitly stated the settlements were illegal and acted to slow them, he was called anti-Israel. And we can all recall what happened when Obama asked Benjamin Netanyahu to freeze settlements so peace talks could continue (and, no, despite Bibi’s statements, the freeze never really happened — as Lara Friedman of Americans for Peace Now explains here).

These are the results of a schizophrenic policy, where the policy as enacted nearly opposes official statements of it. Good luck to Jen Psaki trying to explain it.

Photo: A new neighbourhood under construction in the West Bank’s Ariel settlement. Credit: Pierre Klochendler/IPS