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Dershowitz, the ICJ and the Jim Crow Era

In a recent editorial, Harvard law professor Alan Dershowitz compared the International Court of Justice to the white courts of Mississippi during the Jim Crow era. Dershowitz believes that the Court unfairly singled out Israel for human rights violations. He maintains that the ICJ is inherently biased against Israel because undemocratic nations are disproportionately represented in the UN and the Court, while Israel is excluded from the potential pool of International Court of Justice judges (failing to note that Palestinians are similarly excluded). Thus, he concludes that the ICJ is precluded from objectively examining the legal issues before it where Israel is concerned and therefore, Israel has no obligation to follow the advisory opinion which held that Israel should tear down the barrier and pay Palestinians compensation for all damages.

As usual, Mr. Dershowitz has it backwards. He would like to place Israel above the law in the same way that the courts of Mississippi tried to place white citizens above the law who blatantly and wantonly violated the rights of African Americans. Let’s not forget that in the past four years, three times as many Palestinians have been killed by Israeli violence, the homes of more than 3,000 Palestinians civilians have been destroyed (according to Amnesty International) and that 20,000 people have been made homeless as a result. To date, Israel has built more than 150 settlements outside of its legally recognized territory — and seeks to make additional “security” decisions based on those illegal settlements by building a “security barrier.”

Contrary to Mr. Dershowitz assertions, all human rights organizations and virtually all democratic and non-democratic countries agree that Israel’s conduct during the course of its 37 year occupation has blatantly violated the rule of law. What rule of law? The law of occupation as defined by the Fourth Geneva Convention, the Hague Convention, and many other international treaties. It was the atrocities of World War II that led to the development of this highly specific body of law regarding the permissible conduct of an occupying power during the course of an occupation. The subject of the exploitation of occupied (European) territories was significantly dealt with during the trials of Nuremberg.

Any occupying power (not just Israel) is prohibited from annexing territory that it occupies (East Jerusalem, the West Bank, and Gaza), building civilian settlements in occupied territory, making security decisions based on those illegal settlements, demolishing civilian homes, engaging in practices of collective punishment, wantonly killing civilians, denying access to medical care, torturing prisoner detainees, deporting residents from the occupied territory, and expropriating the land and water resources of an occupied population. After tirelessly passing decades of Security Council and General Assembly Resolutions on various aspects of the illegal conduct of Israel’s occupation — and without any accountability from Israel — the ICJ was finally consulted on the legal consequences to Israel for building the wall.

Almost all the judges found the International Court to have jurisdiction and competence to hear the case, regardless of their country of origin (democratic or not). The ICJ ruling simply rejected Israel’s self-serving attempts to avoid its responsibilities under international law — while it colonized, annexed, and exploited the Palestinian people and their land. Even the lone dissenting American judge found Israel’s practice of building settlements in occupied territory to be highly objectionable. If Israel wanted to build a wall to protect itself from attacks, the wall should have been built on the Green Line — virtually all parties and judges agreed that Israel had a right to build the security barrier in its own territory, not on Palestinian land.

A court presiding over an apartheid society better characterizes the Israeli Supreme Court in contrast to the International Court of Justice. While three million Palestinians live under Israeli military jurisdiction, Israelis (including settlers) live under Israeli civil and criminal jurisdiction clearly an apartheid state of affairs. Even Israeli settlers are authorized by Israeli military jurisdiction to arrest any Palestinian, need I say more.

Beyond that, remember, Israel is a Jewish democracy, not a liberal democratic society — the distinction being that a liberal democracy is equally accountable to all of its citizens regardless of their race or religion. Israel has no constitution. The protection of the non-Jewish minority is subject to the whim of the majority in their system of parliamentary supremacy. In Israel, there is rampant discrimination against non-Jews in all aspects of society including their education, employment, housing, and indeed the ability to become a citizen — where any Jewish person can become a citizen, but Palestinians are denied a right of return to their homes that they lived in prior to the 1948 war. Candidates for political office running on a platform of equality for all Israeli citizens can be seen as traitorous and subject to disqualification of their candidacy for “threatening” the Jewish state.

In addition, the Supreme Court of Israel is not a co-equal branch of authority with a Congress and the Presidency as in the United States.

Thus, the ability of the Israeli Supreme Court to overturn racist or unjust laws is subordinate to the will of the Israeli Knesset. I am not suggesting that we are better off without the Israeli Supreme Court — as the court is perceived as “liberal” and “progressive” within the context of Israeli society. However, make no mistake, the Israeli Supreme Court is highly deferential to the testimony and interests of the Israeli military and rarely follows international standards of human rights, particularly when it comes to Palestinians in the Occupied Territories. Many, if not all, of the above practices have been approved by the Israeli Supreme Court as security measures.

In America’s ugly past, the Jim Crow courts of Mississippi turned a blind eye to the rule of law by allowing white citizens to exploit African Americans through a reign of terror that affected every aspect of their lives. Similarly, Mr. Dershowitz would like Israel to continue to have free reign to deal with the Palestinians as it sees fit, subject only to its own legal interpretations (Sheriff Bull Conner, the White Knights, and Governor Barnett would have loved to play by these rules), however self-serving or limited such interpretations may be in terms of international legal standards of decency. Thankfully, the ICJ saw through the endless rationalizations of Israel’s human rights violations and scored a major (even if only symbolic) victory for justice, the rule of law, and the Palestinian cause.

SHERVAN SARDAR is a lawyer in Washington DC and has a Master’s degree in international affairs from American University.

 

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