Wednesday, December 28, 2016


The Limits of International Law Regarding War

The civilized nations have generally agreed that waging an aggressive war, a war of conquest or genocide, is an international crime. Likewise, we agree that defending one's nation against such a war, that is, waging a defensive war, is not a crime. Some of the conventions have gone on to declare that those waging an aggressive war can never legally obtain new land from the country attacked. OK.

But we have never been able to agree what to do about land gained by a country while waging a defensive war.

Let's look at examples from last century.

The Nazis waged a war of conquest against Poland beginning on September 1, 1939. The Nazis also waged a war for lebensraum against the USSR beginning on June 22, 1941. (Big mistake that). Poland is an easy legal case. They get back all the land the Nazis took and more than that, they get part of East Prussia as a sort of restitution.

The USSR also got part of East Prussia, but they also got more, namely, all the land they liberated from the Nazis with the exception of Austria.

I'm OK with Germany losing land to countries it invaded which countries fought back and eventually won. I'm not OK with the USSR keeping control of the sovereign nations they liberated from Nazi occupation. Obviously, you're punishing the countries invaded by Germany for losing to Germany, not punishing Germany, by allowing the Soviets to remain occupying the countries until there was no USSR any longer. This is so obvious that even as dense a fool as John Kerry could probably grasp it.

So what about Israel?

The Jews helped the Allied powers in WWI against the Ottoman Empire which was allied with the German and Austro-Hungarian Empires, which three were the bad guys. The bad guys lost land and the entities who helped defeat the bad empires were rewarded. The English and a few French troops occupied the middle east after the war but the diplomats of England and France also tried to establish actual sovereign nations out of the former provinces of the Ottoman Empire (just as they created European countries out of the former Austro-Hungarian Empire). The Jews didn't get a lot right then, other than a League of Nations Mandate, but they were busy returning to the homeland the Romans had turned them out of 1800 years earlier, buying up land, and generally sprucing up the place. That's the notorious evil of Zionism. One clear example of a people getting land for helping defeat the Turks was the establishment in 1946 of the Hashemite Kingdom of Transjordan from the Emirate of Transjordan established in 1921. We'll just call it Jordan now.

During WWII, the Arabs in the middle east, (apparently not the Hashemites, but certainly the Mufti of Jerusalem) threw in with the Nazis. There were Arabs serving in one or more of the three Muslim Waffen SS divisions during the war. The Nazis lost and the Arabs suffered a loss of land for supporting the Nazis.

Part of that loss was the founding of a Jewish state in the British Mandate of Palestine, as it is commonly called after the League of Nations disbanded in utter failure. That took place on May 14, 1948. Immediately, five Arab armies invaded Israel intent on destroying the new country and driving the Jews into the sea. I'm going to call this an aggressive war. The Arabs, to nearly everyone's amazement, lost. But Egypt seized the Gaza strip and Jordan seized the West Bank.

Now according to international law, neither Egypt nor Jordan could legally keep these territories which were prizes from those nations' aggressive war. Moving on.

Another aggressive war by some of the same nations waging the '48 war started June 5, 1967 and again Israel won and took over all of Jerusalem, Gaza and the West Bank. They also took the Golan Heights and the Sinai Peninsula. They gave the Sinai back to Egypt after a peace treaty. Never give up the Golan!

So, what does Israel have to do with land it acquired fighting a righteous defensive war? Nobody knows. In this particular case, Gaza and the West Bank were illegally occupied by countries who took them in an aggressive war and then lost them in a subsequent aggressive war. But the question, who is the rightful owner of these lands, has no clear answer.

People who tell you that Israel's occupation of the West Bank and of the Jewish quarter of Jerusalem is illegal don't know what they're talking about or are straight up anti-Semites.

In response to Israel's refusal to be wiped off the face of the earth, most Arab nations expelled most of the Jews living within those nations, creating what I call Judenrein territory, which is a Nazi concept. Although some Arabs were kicked off their land in Israel in '48, most left of their own accord confident that the five armies would soon destroy Israel and the Arabs could return to a Judenrein area.

Israel did not kick out all the Arabs living in its UN mandated territory, that is, it did not create an Araberrein territory out of Israel. 20% of Israeli citizens now are of Arab descent and they have full rights and participate fully in the state (except they are not required to serve in the Israeli Defense Force). The Arabs in the West Bank are not Israeli citizens. God alone knows what nation they are citizens of because Palestine is not now and has never been a country.

For some reason I can't understand except to throw my hands up and say anti-Semitism, bitter mental midgets like John Kerry and our current President seem to think that no Israelis can live in the Jewish Quarter of Jerusalem or on the West Bank. They throw in with the Nazi concept of Judenrein territory. Who wants to be on the side of the Nazis? You can make your own decision about what Israel should do here but I hope it is an informed decision and not merely aping the lefty meme that Israel is bad whatever it does. It's not.

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Yes. The recent events have encouraged me to refresh my recollection about the Mandate.

When the British Mandate was divided, the Jordan River/Dead Sea was the original border between the new states of Israel and the Kingdom of Jordan.

So. If the "occupation" of the West Bank by Israel is illegal, then so was the "occupation" of the West Bank by Jordan. They cancel each other out, so return to the original border line.

If the "occupation" of the West Bank by Jordan was legal (and no one said it wasn't), then the "occupation" of the WB by Israel is as well. See above.

But those who will grant no legitimacy to Israel, and will forgive all transgressions by the Palestinians, et al., will never acknowledge that consistency.
Well said.
This video was really interesting. Being a lawyer, you may be more inclined to watch for ~45 minutes than most of my acquaintance, who would click it off after that many seconds, I suspect. I'd really like to have someone (not yourself, necessarily) more versed than I in international law (a ground-level threshold) to watch it & let me know whether it's just fancied-up Israeli propaganda or actually & accurately reflects current law. BTW, Kontorovich gets into the weeds re: occupation of land through offensive v. defensive war.

I'll take a look. Thanks very much. Happy New Year!
Back atcha.
The talk you sent me a link to was excellent, and not just because he agreed with just about everything I think on the matter, although there is that.
Yah, validation of one's opinion has a nice feeling to it.... ('Tis why we seek "confirmation bias," no?)

Kontorovich's resume is here, if you've not already looked for it:

So, evaluating it with your keen lawyerly & incisive mindset, it made good sense to you?

I was hoping that my agreement with his lecture wasn't only because my sympathies lie in the direction of Israel, but because it made logical & legal sense.

The thing that energized my current political interest was the 2000 election litigation because I could read the briefs and opinions online and, based on years of experience reading those things, tell which were sound and which were bullshit. I remember racing home from work each day to read online the ever growing bulk of legal discussion. It was exciting, at least to me. I still have an ability to cull the chaff from the wheat in legal arguments and Kontorovich's arguments and analysis regarding Israel were 100% wheat, perhaps even enriched wheat.
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