RSS FeedA Legal Obligation to Assist Iran
Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites. But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.
Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them. Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.
In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,
Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,
1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;
2. Calls upon Israel to refrain in the future from any such acts or threats thereof;
3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;
4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;
5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;
6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;
7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.
Iraq’s new government is seeking reparations from the 1981 attack. Sadr MP, Nasser al-Rubaie, recently stated,
According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.
But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.
The 2002 National Security Strategy of the United States of America (NSS) states,
A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.
The 2006 revision retains the ability to act preemptively. But there is one important distinction between the U.S. and Israel that differentiates these policies. The NSS is based on Article 51 of the U.N. Charter,
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not. Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.
The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946). The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.
Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community. It is also largely acknowledged as the primary cause of WWI.
Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,
The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.
But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause. He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.
As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage. He states,
In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.
As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.
Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.
My Fourth Year of Law School
From the October 2009 issue of Amicus Curiae
Many law students find law school to be so painful that few can understand or relate when I say I actually enjoy the ordeal. They would probably understand even less if I told them that I enjoy it so much that I actually subjected myself to an extra semester of it voluntarily, and not for an LLM.
This is the story of my 2L summer.
I had the opportunity to work for a local law firm during my first year and through my first summer. I had a pleasant enough experience, but I learned all that I could as a law student in that context. For my next summer I decided to do something different.
Most of my time this summer was dedicated to consulting and writing projects. My work projects took me to several locations, including Calgary and B.C. While on the West Coast, I also managed to catch a federal political convention.
Some of my friends outside of law already joke that I do law school on the side. I figured I could probably pick up some legal experience this summer while I was running around. I checked out some summer law abroad programs, and registered for ABA-approved courses at UofT, Bar Ilan in Israel, and Universidad Autonoma de Guadalajara in Mexico.
Before you get any smart ideas, keep in mind that Western doesn’t accept summer transfer credits, even though many other Canadian law schools do. I’m not saying that they should, but if they did I would have graduated before my January term even began. Yes, it was a pretty intense summer.
The trip to Israel had some personal reasons behind it, in addition to my other activities. During my last trip there about 10 years ago I stayed in (primarily Arab) East Jerusalem and the Territories. I enjoyed a rather privileged lifestyle in the primarily Jewish West Jerusalem, staying in Golan resorts overlooking the Galilee, driving through the Negev desert, floating
in the Dead Sea, and swimming on the beaches of Tel Aviv. The tensions within a very complicated country were highlighted with a visit to the assassination site of Yitzak Rabin.
My last summer destination was Mexico. After an unexpected stop in Monterrey when someone decided to have a baby mid-flight, I arrived at my destination in Guadalajara. I soaked up a lot of local culture during my stay including assorted local crafts, Mexican ballet (sans any sign of tutus), Lucha Libra wrestling, and horseback riding along Lake Chapala.
But it seems that politics and law is inescapable no matter where you go. Prime Minister Harper, President Obama, and President Calderon were in town for the North American Leaders’ Summit. Calderon was even staying a few doors down from me at my five-star hotel. One of the major issues on the agenda for them was the North American Free Trade Agreement (NAFTA), which was becoming increasingly contentious to citizens of all countries during the current economic turbulence.
So what exactly did I study while I was running around the world? Most law abroad programs focus on international legal issues, for obvious reasons, so there were courses on the International Criminal Court, environmental law, international economics and NAFTA, cyberspace law and human rights. But I also got some specialized training in Jewish law, holocaust law, and national security issues that I probably would not get anywhere else.
Some of the faculty I studied with included world-renowned rabbis, someone who worked on the Rome Statute through an NGO, and even the infamous Kenneth Starr from the Clinton-Lewinsky case. Starr held a special session to discuss his role in Proposition 8, the same-sex bill that was shot down in California last year.
There is one key lesson unrelated to my summer courses that I would like to impart and share with others. In the summer of your second year you will typically be applying for your articling position. I was extremely fortunate that it worked out for me, but I would not recommend taking your interview call on a Tel Aviv beach, actually doing the interview on a Mexican cell phone, and skipping the law firm reception entirely to tour a Spanish cathedral.
You’ll have a hard time making an impression and competing with candidates who actually bothered to be in the country to interview in person.
And no matter how many excuses you make, or how many times you show them this article, they’re just not going to buy that someone voluntarily subjected themselves to additional law school that they won’t get credit for.
Goldstone Report Could Lead to ICC Charges
The report by Justice Richard Goldstone on the Fact Finding Mission on the Gaza Conflict, released yesterday, is raising some interesting legal questions.
The report concluded that both Israel and the Palestinians had committed war crimes, and possibly crimes against humanity. The most obvious question people are asking is the effect of this report on the International Criminal Court (ICC).
The Israeli media has stated that the ICC has no jurisdiction over Israel, as a non-signatory to the Rome Statute. Israeli legal scholars have generally taken a similar position, but this appears to be flawed.
Foreign state denies Canadians entry because of names
Israel targets Palestinian-Canadians
Since Americans appearing to have Palestinian heritage are hit also, the US Administration is twisting Israelis’ arms to change the policy. Predictably, the Canadian government is silent.
Israeli Prof Thinks Boycott Only Way to Save Country
Prof. Neve Gordon of Ben-Gurion University, a third-generation Israeli who suffered severe war wounds resulting in physical disabilities, has come out with a strange proposition. The only way that Israel can save itself from what he considers its destructive path is by pressure from the outside world:
I am convinced that outside pressure is the only answer. Over the last three decades, Jewish settlers in the occupied territories have dramatically increased their numbers. The myth of the united Jerusalem has led to the creation of an apartheid city where Palestinians aren’t citizens and lack basic services. The Israeli peace camp has gradually dwindled so that today it is almost nonexistent, and Israeli politics are moving more and more to the extreme right.
It is therefore clear to me that the only way to counter the apartheid trend in Israel is through massive international pressure. The words and condemnations from the Obama administration and the European Union have yielded no results, not even a settlement freeze, let alone a decision to withdraw from the occupied territories.
I consequently have decided to support the Boycott, Divestment and Sanctions movement that was launched by Palestinian activists in July 2005 and has since garnered widespread support around the globe. The objective is to ensure that Israel respects its obligations under international law and that Palestinians are granted the right to self-determination.
Of course his use of the adjective, “apartheid state,” is not without controversy, and has resulted in charges of being anti-Israeli. His response? You just don’t agree with what I say.
However, earlier this year he opposed an international boycott, prefering pressure within Israel and the importance of the Israeli people in making a decision.
Why a shift on this issue?
I say this because Israel has reached a historic crossroads, and times of crisis call for dramatic measures. I say this as a Jew who has chosen to raise his children in Israel, who has been a member of the Israeli peace camp for almost 30 years and who is deeply anxious about the country’s future.
Impunity
BBC: Paralysed girl’s story reflects Gaza’s plight
Constitutional Lessons from an Israeli Supreme Court Justice
I had the opportunity to hear one of the Chief Justices speak at the Israeli Supreme Court today. He explained some of the basics of the Israeli judicial system, and shared some of the challenges that they currently face.
Unlike some jurisdictions, Israel has had no problem drawing on international law for their domestic discourse. For example, when developing their position on freedom of expression, they looked to the most robust and liberal legal discourse on the subject and borrowed freely from American case law.
As a Jewish state they also do use some Jewish religious law, although in a more limited fashion. All family law in Israel is conducted under separate religious courts for their respective adherents. The Supreme Court is primarily a court of appeal for criminal and civil cases.
But the Israeli Court also acts as a court of first instance for human rights issues. The history of this structure goes back to the British Mandate, when the British did not want complaints of this nature brought to the lower courts, which were staffed by Arabs and/or Jews, and instead staffed this court by judges brought for short terms from Britain.
Michael Yadegari Gets In The Mind of Israel
I’m doing a law program in Israel right now with an interesting guy – Michael Yadegari, a Persian-Jewish law student from Los Angeles who did this program last year.
He is currently a JD/MBA student at Chapman University in Orange, CA and President of the Jewish Law Students Association and founder of Chabad at Chapman.
He spent his time here putting together a documentary, In the Mind of Israel, a non-partisan compilation of first-hand accounts about why Israelis, both Jews and Arabs, live in their country.
The video presents a vast diversity of perspectives and positions, representing a diversity of opinions that we rarely see outside of Israel. He interviews ordinary Israelis, members of parliament, soldiers, law professors, and students.
There are some political implications of the film, including options towards a peace process. Those interviewed express controversial views from across the political spectrum, and helps highlights some of the enormous challenges Israel has within itself in determining what course of action to take for the future. It includes some pretty strong statements, including,
The Arabic (sic) needs to die.
Others claim that Israeli politicians use the Palestinian issue for their own ends, and are not really interested in resolving the problem at all. One Arab truck driver emphasizes that they already live together, and collective cooperation towards a solution is certainly possible.
Israel is not a monolithic country, but this film does help give a glimpse into the very complicated minds of those who live there. Perhaps even more important than an international audience seeing this would be for Israelis themselves to talk to each other and resolve their differences, educate one another about misunderstandings, and move beyond the historical obstacles that have hindered progress thus far.
You can purchase a copy of the film here.
Comfortable in a kippa or a kaffiyeh
Published in today’s Star and reproduced here at the request of the authors.
Apartheid or no apartheid, what is going on across Canadian university campuses this week is not a mature and helpful way to promote dialogue and raise awareness.
In the standoffs that result year after year during this week, the people involved on both sides further alienate the public at large. For Osgoode Hall Law School students, this week means trying to avoid all the protests and counterprotests taking place around York University’s campus.
Thankfully, there are no protests at the law school and no posters to be found on any of its walls. The law school accommodates all of us so that everyone who walks around feels comfortable no matter his or her religion, political views or nationality.
As Osgoode students, we find the events at York to be strange. There is no discussion taking place, but rather two sides screaming at each other.
It is no surprise that these encounters frequently end with the police being called and both sides being charged by the university. It would be truly devastating if somewhere down the line these encounters result in violence or someone being seriously hurt, if that has not already happened.
At Osgoode Hall, the Jewish Law Students’ Association and Muslim Law Students’ Association may have different agendas and goals but we are all friends with each other. We do not all have to agree with each other’s views to respect one another.
When friends discuss politics, even such hot topics as Israel and Palestine, you are more open to listen to the other side and hear the points they are making. No megaphones, no flags, just two groups listening to what the other has to say.
Often, members of our associations have admitted that they have had to rethink certain issues and change certain opinions they held due to some of these open and collegial discussions.
Apartheid Week only seeks to divide the campus more than it already is. Whereas the JLSA and MLSA are open to working together to try to host events that speak to the students’ common goals, such as finding lawyers to come talk to our groups about difficulties maintaining our religious practices in the workforce, or issues of keeping kosher and Halal at law firms, the thought of something like this taking place at York is worrying.
Additionally, Osgoode Hall offers courses in both Jewish and sharia law. One need not be of any specific nationality or religion to attend, and it would not be considered strange if anyone took up the offer.
By learning about the history and background of the other, we see that other as a human being rather than part of an ideology, and the debate suddenly becomes more humane. The way that Israel Apartheid Week is conducted only seeks to exploit the differences between us and does not focus on any of the good that we can do together or that can be achieved by having proper discourse in a responsible, academic setting.
Until the activists on both sides of the debate realize this, nothing will be achieved and emotionally charged students will continue to yell and scream at each other while not being heard and achieving nothing.
Debate is never futile, but what goes on at York’s campus can hardly be referred to as anything resembling a debate. This only seeks to increase animosity between the two sides while ignoring the good that we can do together.
Let both sides cool off, and when they are ready to have a true dialogue, let it take place in a civil forum. Right now nothing is being gained, and so much is being lost.
We are thankful that the law school is a place where we can be comfortable walking around in both kippas and kaffiyehs, and where the two groups can talk and consider each other as friends.
We may be somewhat divided on the issue of Israel and Palestine, but we realize that there are reasonable arguments on both sides of the debate, and have tried to come to an agreeable position.
While this will not bring peace to the Middle East, it fosters an environment where everyone feels comfortable about who they are, something that is wholly lacking at York University currently.
Joseph Juda is co-president of the Jewish Law Students’ Association at Osgoode Hall Law School. Ahsan Mirza is president of the Muslim Law Students’ Association at Osgoode Hall Law School.
Phyllis Bennis on Israel and International Law
Phyllis Bennis, Senior Analyst at the Institute for Policy Studies, and author of Before and After: US Foreign Policy and the September 11 Crisis, Challenging Empire: How People, Governments, and the UN Defy US Power, and Understanding the US-Iran Crisis: A Primer,
Calling a TV station pro-Hamas does not make it a military target
CUPE Seeks to Ban Israeli Academics from Ontario Campuses
In the latest idiotic move by CUPE, the union representing striking York University graduate students and contract faculty, the university workers committee will be lobbying in favour of banning Israeli academics from Ontario campuses due to the escalating crisis in Gaza.
Sid Ryan, president of CUPE Ontario, said that:
“Israeli academics should not be on our campuses unless they explicitly condemn the university bombing and the assault on Gaza in general. It’s a logical next step, building on policy adopted by our provincial convention in 2006.”
The previous policy that Ryan refers to is Resolution 50, which favored divestment and boycotting of Israeli and Israel-related companies (like Caterpillar and Hewlett Packard?).
According to a press release published on January 5, the union now seeks a ban on “Israeli academics doing speaking, teaching or research work at Ontario universities.”
Ryan, who failed to see the irony in his own words, told the Globe and Mail that:
“Attacking an institution of learning is just beyond the pale. They deliberately targeted an institution of learning. That’s what the Nazis did.”
The solution that CUPE proposes to this “attack on an institution of learning” is, of course, to attack academic freedom.
Prof. Costanza Musu, who presently teaches International Relations courses at the University of Ottawa, points out the obvious absurdity and academic harm inherent in CUPE’s position:
As professors we have a duty to teach our students to think autonomously, analyze information critically and listen to others’ opinions. As someone who teaches the Arab-Israeli conflict I cannot think of any more useful pedagogical tool than integrating in my classes lectures (as well are readings, or should articles and books be boycotted too?) by people from both sides in order to expose students to different points of view and narratives… I cannot fathom how I would be fulfilling my duty as a professor if I decided to stop inviting Israeli speakers and to prevent students from listening to them and form their own opinion.
…
What about those who might teach information technology, or neurosciences, or astrophysics? They would have to stand in front of their audiences and start their talk with a short speech in condemnation of the Government of Israel?
Prof. Emanuel Adler, chairman of Israeli Studies at the University of Toronto, echoes Musu’s concerns:
“Students should receive the message that the situation is very tragic for both Israelis and Palestinians, but the conflict and the violence should not be brought inside the university… If there is a place that some solution should come out of other than government it should be a place where creativity can lead to a peaceful resolution of conflict.”
The other problem with CUPE’s proposal is that they seek to ban academics on the basis of national origin. Fortunately, CUPE has no actual power to hire or fire academics on University campuses. If they did, this would smell like a human rights violation.
For now, this just smells like stupidity.
Say what you will about the Israeli-Palestinian conflict; unions should stick to representing their workers, not meddling in international politics.
h/t to Eivor Cormie at the University of Western Ontario.
Israel and Syria Engaged in Fresh Peace Talks
Israel and Syria are publicly engaged in a new round of peace talks aimed at ending the bitter conflict between the nations that has been going on for half a century.
Israel, Syria, and Turkey have all publicly confirmed that peace negotiations have been taking place. Turkey is acting as a mediator between the two countries.
Herb Keinon of the Jerusalem Post writes that the significance of today’s announcement is not that talks are taking place (he points out that both countries had been hinting at negotiations at least since March), but that they are taking place publicly.
Keinon writes:
“Israel, at least until Wednesday, did not want to give Syria a photo opportunity to help it out of its isolation.
The question that needs to be asked now is what changed? One explanation preferred in Jerusalem is that the preliminary talks that have been taking place have convinced Israel that Damascus is indeed interested in substance, and not just form.”
Many Mideast commentators remain skeptical, and with good reason.
Ehud Olmert, the impugned Prime Minister of Israel, is currently embroiled in a corruption probe; it is the fifth such probe since he took office just two years ago. Opposition critics have charged that today’s announcement is aimed at diverting attention away from the government’s political problems.
The Associated Press quotes Yuval Steinitz, a member of the Knesset representing the Likud Party as saying:
“Evidently the prime minister is so corrupt that he is not only taking cash money in envelopes but he is ready to trade … our most vital interests in an attempt to save himself from criminal investigation.”
Furthermore, this is not the first time that the two countries have attempted to reach a peace settlement. Talks broke down in 2000 over the contentious piece of land known as the Golan Heights. The area sticks out like a finger from North-Eastern Israel.
This elevated region is of great strategic significance, in that it overlooks Lebanon, Syria, and to a lesser extent, Jordan.
In the 2000 talks, Israel was apparently willing to relinquish partial control of the Golan Heights, which is home to roughly equal numbers of Israelis and Druge Arabs that consider themselves Syrian. However, the talks came to a head over control of a small strip of the Golan which borders the Sea of Galilee.
The Sea of Galilee is Israel’s largest freshwater lake. Control of water resources is of increasing strategic significance all around the world, and the Middle East is certainly no exception. Not surprisingly, this will be a difficult bargaining point in this round of talks.
Nevertheless, it’s fair to say that both sides want peace, and the fact that talks are being conducted publicly is a very positive development. I remain optimistic.
