Israel, Locke, International law, and the state of war

According to Locke, a society is chiefly valuable because it allows conflicts between individuals to be referred to a common judge. Without a common authority, any conflict can only be judged by each’s conscience according to its interpretation of natural law, and the attempt of each to enforce natural law will put the two in a state of war with each other.

International law is perhaps the best example of a very weak society. Although some common law exists which can be appealed to in conflicts, it is easy for states to avoid its enforcement as long as they have powerful friends, ideally a friend with a veto on the security council.

Israel’s position on the Occupied Territories is a rejection of the arbitration of International law, as I have argued above. Having rejected arbitration, it has put itself into a state of war with its opponents.

War, however, can be pursued by many means. Arms are just one way that force can be used between parties in the state of nature. In a sense, we could think of the UN statehood bid by Abbas a form of war against Israel, in the sense that Israel rejects the authority that the Palestinians are appealing to, and therefore insofar as this appeal is an exercise of force, and insofar as the Palestinians and Israel are in a state of war with each other (they recognize no authority which they can both appeal to), then any use of force puts them into a state of war with each other.

Israel tries to de-legitimize peaceful struggle against its policies, i.e. things like Boycotts and calls for Divestments and Sanctions, by calling them “economic warfare” – but maybe that is exactly what they are, and maybe we should support that. If there is no common authority which those who support the Palestinian cause can make an argument for and who’s decision Israel must obey, then must not they be in a state of war against Israel? Following this line of reasoning, might not armed struggle be but one form of war, and then even if the armed struggle ends, should we think the war is over? Maybe activists should embrace the idea of war, and while making arguments in favour of non-violence, emphasize that the arguments for non-violence must be grounded in the tactical considerations that non violent struggle is a more effective tactic of war against an enemy. In other words, non-violence could actually be more violent than violence, in the sense that it might be more effective at weakening and vanquishing the enemy.

Israel often appeals to its right to defend itself. But if it defends itself only because it is in a state of war, do not its opponents have the same rights? If Israel has the right of targeted killing of Palestinian militants, does that not mean Palestinian militants have the right of targeted killing of Israeli militants? And if every Israeli is in the army, then can even suicide bombing truly be considered “terrorism” anymore than a targeted assassination?

I don’t make this argument to support suicide bombing, but rather to oppose just as much the use of force against Palestinian militants insofar as they are engaged in defence of their territory and their communities. It may be imprudent for Palestinians to attack Israelis in the territories, but the argument from prudence is separate from the argument from right. It may be that Palestinians have the right to armed struggle in the territories against the occupier, but it may be that the best way to exercise this right is through non-violent resistance. This seems likely to me, but at the same time I believe strongly that it is up to Palestinians to make these decisions – the attitude of foreign activists who want to tell people engaged in struggle elsewhere what the most effective tactics are for them to pursue, is paternalistic and unfortunate.

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17 thoughts on “Israel, Locke, International law, and the state of war

  1. Israel’s position on the Occupied Territories is a rejection of the arbitration of International law, as I have argued above.

    Just to comment. Both sides reject the arbitration of international law.

    The Palestinians for example have rejected the UN’s positions that as of May 2003 all violence needs to stop (phase 1 of the roadmap to peace). They were declared in violation June 5 2003 after the Hadassah Ein Kerem hospital attack. Fatah refused to arrest Hamas bomb makers in 2003 then when Israel got into a gun fight with hamas they launched a suicide operation Aug 12th… The UN roadmap was seen as firmly rejected by the Palestinians in the January 2006 victory of Hamas in the elections.

    The Palestinians very much like the Israelis are happy when international law agrees with them, and not so happy when it doesn’t. But they have not shown themselves willing to obey the law even when they disagree.

    ____

    As for the right to war. Of course the Palestinians have a moral right to engage in a war with an enemy that seeks to undermine their existence. Every people has that.

    1. Palestinians might have rejected the arbitration of international law, but Palestinians since 1988 have not rejected what international law proscribes. Israel has never shown any willingness to accept a settlement based on international law, and they never will. What Israeli politician could accept to give up the holiest site in Judaism? But Israel has no right to the Western Wall, or any of the old city, under international law.

      1. I agree. Both sides reject International law. Israel is thrilled when the Palestinians get them out of the box by objecting to something.

        In terms of Palestinian rejection of international law. I’d say the big one is their insistence that their territory be Judenrein prior to them taking over. While international law prohibits the creation of permanent settlements once they have been created there is no requirement that they be cleansed. You aren’t supposed to under international law ethnically cleanse under any circumstances. The Palestinian policy for the last 80 years of killing any Jews (excluding pro palestinian activists) living in territory they get control of is a rather large violation. To pick a situation you are familiar with Kosovo does not get to push out the entire Serbian civilian population.

        And we know from Netanyahu, and Abbas has not refuted it, that this was a sticking point in the latest rounds of negotiations. Abbas demands that areas be completely Judenrein. That’s not a demand he is entitled to make and in theory it is not a demand Netanyahu is entitled to grant.

      2. Using the term “Judenrein” to describe the removal of illegal settlements in occupied territory is absurd, and not something I will respond to.

      3. The Roadmap simply isn’t international law; your argument is spurious. The law is clear, Palestinians have favoured a settlement based on the 67 borders since ’88, and Israel has consistently opposed such a settlement. Not all Palestinians are happy with such a settlement, so not all of their actions are consistent with it – but no Israeli actions are consistent with this settlement, not a single one.

  2. The Roadmap simply isn’t international law; your argument is spurious.

    Of course it is. UNSC 1515 explicitly makes the Roadmap the vehicle for achieving 242. You may not like international law, but that does not mean the Palestinians are complying with law when they ignore the Security Council.

    Palestinians have favoured a settlement based on the 67 borders since ’88

    Baloney. There is no evidence of any popular support for that position ever. For example: http://www.washingtontimes.com/news/2009/may/19/the-two-state-solution-mirage/

    Politically though we know that the Palestinians have consistently refused to sign every attempt at 242 based offers most importantly those endorsed by President Clinton. I agree that both sides play lip service to 242 while undermining it in practice.

    Using the term “Judenrein” to describe the removal of illegal settlements in occupied territory is absurd, and not something I will respond to.

    There is no such thing under international law as an illegal settlement there is illegal settling. Your issue is you don’t agree with International law, here either. International law is equitable and opposes all ethnic cleansing You seem to think ethnic cleansing is OK when towards Jews but not when done by the French towards Roma. The is sort of the Palestinian position where they have privileged aboriginal rights. But it is not international law.

    1. I’ll have to look more into the issue of the roadmap, but it is my understanding that since the Abbas-Dahlan coup, the PA has very much been “following the roadmap”, or at least doing all the things Israel wants them to do.

      I should have said “the Palestinian leadership”, not the Palestinians, which have and always will reject a version of the two state settlement in a way friendly to Israel because it means the annihilation of a fundamental right held by most Palestinians.

      “There is no such thing under international law as an illegal settlement” – this is ridiculous. Of course there are settlements and of course they are illegal under international law. That is one of the least controversial aspects of the conflict.

  3. since the Abbas-Dahlan coup, the PA has very much been “following the roadmap”

    Abbas is March 19, 2003.
    On June 5, 2003 there is a huge wage of terror attacks against Israel. The Road Map requires the PA to take active steps against these they refuse.
    June 29, 2003 the Palestinians push for the release of prisoners from Israeli jails, as a condition for peace. Adding additional conditions on threat of violence was a violation of the Road Map.
    April 14, 2004 The quartet declares the Palestinians to be in violation of the reciprocal concessions clause (i.e. negotiate in good faith). This is about their refusals on Land swaps. The quarter responds by

    a) Endorsing unilateral Israeli withdrawal in the absence of Palestinian cooperation.
    b) Explicitly endorsing the USA / Israeli position on the refugees.
    c) Explicitly requiring the Palestinians to negotiate on mutually agreed land swaps (i.e. clarifying this is a mandate not a desire).

    May 8, 2004 Abbas is cited again for violence violations which the quartet sees as having induced a date slip.

    etc…

    No. The Palestinians did not comply with the Roadmap. As an aside Israel didn’t comply on the settlement freeze and was cited in 2004. Israel denied the violation the US investigated and in 2006 published their conclusion that there had not been a settlement freeze in 2003. So both sides violated.

    I should have said “the Palestinian leadership”, not the Palestinians, which have and always will reject a version of the two state settlement in a way friendly to Israel because it means the annihilation of a fundamental right held by most Palestinians.

    I’m not sure about always will but other than that I agree. The Palestinians reject international law. Abbas IMHO would love to come into compliance but his population is unwilling to. If you are willing to accept that the neither side wants the ’67 borders and both act to undermine a ’67 borders settlement, we can move on. It was only the claim that this was something the Palestinians were willing to accept I am disputing.

    1. I agree that neither side wants the ’67 borders, but there is an important difference – on the Israeli side neither the population nor the leadership wants it, and on the Palestinian side the leadership but not the population wants it. Also, you can’t deny a difference in power between the two sides, nor that accepting the ’67 borders is a defeat for the Palestinians (they lose 78% of their land), and a victory for Israel (they gain peace and security with those they ethnically cleansed).

      1. I think the situation is that the
        Israeli government is official in-favor while unofficially strongly opposed;
        while the Palestinian government is officially opposed while secretly in favor. And I think that’s because the Palestinian government knows what a good deal they are, and considers their own population foolish to be prolonging negotiations while holding such a weak hand.

        In more detail.

        a) The Israeli people are mixed on the ’67 borders. They are generally opposed to a strict implementation but supportive of a looser implementation. That support has fallen drastically however since the 2nd intifada.

        b) The Israeli government is willing to pay lip service to and take official positions in support of the ’67 borders while acting to undermine them.

        c) The Palestinian government (PLO) is supportive of the ’67 borders in secret. They are willing to offer a little wiggle to make them happen. They face a hostile public though, and often in public they make demands which undermine the ’67 borders especially their interpretation of return.

        d) The Palestinian people are supportive of the ’67 borders but only if implemented strictly. They are hesitant to trade anything much for them. They consider the borders themselves to be a huge concession.

        e) The USA is supportive of the ’67 borders but not willing to risk the destabilizing effects of a genuinely independent Israel. So they pressure Israel towards settlement but not very much. They can get Israel to accept a bad deal for them, but not a terrible deal.

        i’ll respond to the rest in the next post.

      2. nor that accepting the ’67 borders is a defeat for the Palestinians (they lose 78% of their land), and a victory for Israel (they gain peace and security with those they ethnically cleansed).

        Actually, I can deny it and I will. The Israelis already have 78% of the land and have had it for 2 1/2 generations. They currently have another 13% of that rather directly, Area C. What the Palestinians get from the ’67 borders is all of Gaza and 1/2 the West bank back, plus huge chunks of Jerusalem.

        More importantly the Israelis don’t need peace from the Palestinians. The Palestinians need peace from the Israelis. What are the Palestinians going to do other than continue to be an annoyance? Conversely the Palestinians may not even exist as a people in 2213 if they don’t work something out.

        To paraphrase an old joke “ Those Palestinians are saying those kike bastards can’t throw us out of own country’. True, but they are saying it in Jordan, in Syria, in Iraq, in Lebanon“. The Palestinians consider their agreement to facts to be worth far more than it is. Because the USA wants stability in the middle east, and Israel wants USA arms sales, their agreement has been worth a lot. But what they are trading is their agreement. The Palestinians lost their country on the battlefields during the 20s, 30s and 40s. The allocation of land happened on the battlefield not at the negotiating table. The negotiations are just the Palestinians promising to let things calm down in exchange for them getting land, not losing land.

  4. Of course there are settlements and of course they are illegal under international law. That is one of the least controversial aspects of the conflict.

    It this is non controversial and obvious then you should have no problem finding an easy cite requiring dismantling of existing settlements and the removal of the Jewish population as being mandated by international law.

    Lets be clear. Everyone excluding the USA, Israel… agrees new settlements are illegal. But you and the Palestinians are claiming something much stronger that existing settlements are illegal and the population needs to be removed under international law… This is a Palestinian position that has been multiple times rejected. Condoleezza Rice having been the most explicit that such a claim would nullify the claim for a Palestinian state.

    I should mention that several important committees have even found that article 49 geneva convention doesn’t even apply to the Israeli situation at all. That neither of the two crucial criteria:

    a) A sovereign removed for a short period of time
    b) A displacement of occupying power’s people with no intention of permanent settlement as per German children at the end of World War II.

    are met by the israel case. The Jordanian sovereign makes no claim to the land and the displaced people are making permanent home. So I wouldn’t even go so far as to say that new settlements are clear cut and uncontroversial.

    1. The same case that decided that the apartheid wall was illegal confirmed that the settlements are illegal – all the settlements, anything over the ’67 line.

      “The information provided to the Court shows
      that, since 1977, Israel has conducted a policy and developed practices involving the establishment
      of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49,
      paragraph 6, of the Fourth Geneva Convention which provides: “The Occupying Power shall not
      deport or transfer parts of its own civilian population into the territory it occupies.” The Security
      Council has taken the view that such policy and practices “have no legal validity” and constitute a
      “flagrant violation” of the Convention. The Court concludes that the Israeli settlements in the
      Occupied Palestinian Territory (including East Jerusalem) have been established in breach of
      international law. ” http://www.icj-cij.org/docket/files/131/1677.pdf

      1. I think I was pretty clear what I was asking for.

        Settlements need to be dismantled, population must be transferred back to Israel. Which is the Palestinian position.

        That case says the wall needs to be dismantled not the settlements. The case argues that since the settlements were illegal Israel isn’t entitled to the same level of defensive acts.

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