Noam: Hey everyone, welcome to Wondering Jews with Mijal and Noam.
Mijal: I’m Mijal.
Noam: And I’m Noam and this podcast is our way of trying to unpack those really big questions being asked by Jewish people, by non-Jewish people about the Jewish story, about the Jewish people. We absolutely do not have it all figured out, but we try to learn together, to ask questions together, to wonder together, whether we figure it all out or not. It’s really about the process of wondering together and leaving every episode feeling like we’ve actually learned something.
Mijal: As we say every week, and we mean every week, we really enjoy and appreciate hearing from you. It really means a lot. So please feel free to send questions, suggestions, feedbacks, disagreement, pretty much anything. Email us at our new and improved email address, wonderingjews@unpacked.media. That’s wonderingjews@unpacked.media.
Okay, great. So now I want to talk a little bit about the show we’re going to have today and the guests we’re going to have today.
One of the things that I noticed in so many spaces, in so many of my friends and spaces post October 7th, is that many of us have developed a knee jerk reaction to any body that represents what I would think of in layman terms as like international law or like international human rights. I’m thinking here about the UN, the ICC, other bodies like that.
Many of us have developed a knee-jerk reaction thinking they’re out to demonize Israel. They’re completely unfair. There’s a lot of antisemitism in these spaces and we cannot trust them anymore.
And I really wanted to understand this better, partially because I both empathize with the reaction, the knee-jerk reaction of saying a lot of this is bad and rotten. And also when I think about it, I don’t know if I want to live in a world where I kind of trust international law and when I don’t have trust in any of that. So I wanted to have a bit of like a measured conversation to try to unpack this a little bit. What do we mean when we say international law? Who decides it? Who adjudicates it?
And how do we think about it in terms of Israel? This is a huge conversation.
So with this said, I am fangirling a little bit and I’m just so excited for our guest right now. I’m excited to welcome Natasha Hausdorff here. I don’t know about you guys listening, but I have seen a lot of clips of Natasha and heard her on different podcasts. And anyone right now who’s willing to go on world stages and speak up on behalf of Israel and the Jewish people is just a hero of mine. So, Natasha, really good to have you here.
There’s a very long bio of amazing things that I could say about you. But instead of reading that, I just wanted to ask if you could share maybe, you know, just three professional highlights so that we get to know you a little bit.
Natasha: Well, great to be with you both. Thanks ever so much for having me.
Everything that I’ve been doing in particular since the 7th of October has been, I’m afraid, alongside my day job. I am a barrister in practice in the UK. And in terms of three highlights, perhaps I’ll focus on everything that has happened since the 7th of October and the real privilege that I have had of being able to speak out on these issues and in particular the weaponization of international law against the only Jewish state.
I’d say one instance was contributing to a committee in the Houses of Parliament perhaps just over a year ago where there was a great debate about the meaning of the International Court of Justice’s Provisional Measures Order, the first one that it issued with respect to Israel in light of South Africa’s application alleging genocide at the International Court of Justice.
And unfortunately, the world and his wife was misrepresenting this provisional measures order as something that had found Israel plausibly guilty of genocide or had found that there was a plausible case of genocide, both of which were entirely wrong.
And one of the big disagreements I had was with a former justice here of the Supreme Court in the UK, Lord Jonathan Sumption, who was also dubbed Britain’s biggest brain by one of the leading newspapers. He told the committee that my position was barely arguable as I was explaining that all that the court determined was that the rights that South Africa was alleging were plausible, which meant they thought South Africa’s case fell under the Genocide Convention. Well, less than 30 hours after that exchange, the woman who wrote the order that we were discussing, Joan Donoghue, the former president of the court, came out on Hard Talk on the BBC and vindicated every word I’d been saying for the last five months previous to that.
Mijal: Wait, Natasha, before we get into details around genocide and Israel and all of that, you shared with us, you actually have a day job as a lawyer or barrister, the way you say in England, and you’ve been involved at levels of parliament in England. And also you’ve done some very public appearances, like the monk debates and others. Am I saying that right? The monk debate?
Natasha: The Monk, absolutely, we can certainly call that a highlight. I was privileged to share the stage with Douglas Murray as we took on Mehdi Hassan and Gidon Levy on the issue of anti-Zionism and antisemitism which as I know is something that you spent a lot of time unpacking on this podcast. So we were victorious in carrying the motion that anti-Zionism is antisemitism on that occasion, so for sure we can call that another highlight.
Noam: Natasha, can I jump in and ask you, I’m not a good debater. I’m actually terrible. So if you and I got in a debate about anything, if I asked you questions about Michael Jordan versus Kobe versus LeBron and who’s better, I feel like even though I feel like I probably know more than you about this, you would beat me in a debate. I just feel like that’s probably true. You agree, Mijal, right?
Natasha: Yeah.
Mijal: I agree, Noam. I have no question.
Noam: So my…
Natasha: We could have a good argument about it, I’m sure.
Noam: Okay, we can have a good argument. Okay. I see the style there. That was very kind and welcoming to the fact that I will get destroyed in that debate even still. But my question is like, what does it mean you won the debate?
Natasha: So on that occasion, they took a vote before and after, and we won both the majority, but there was also a swing in our favour amongst the undecideds, and I think probably amongst some of the people who voted against us before the debate began. But you’re absolutely right. From my perspective, just participating in these exchanges is winning because it’s about getting the truth out to as many people as possible. And it is about confronting the falsehoods that are being projected by the likes of Mehdi Hassan, the antisemitic notions that really take us back all the way to the ancient blood libels that are here in their modern form. So I think in any context and in any forum, being able to challenge that narrative that seems to be taking hold increasingly, it’s become the received wisdom in so many respects, for me that’s already winning.
But by the technical definition of the Monk debates, Douglas and I were also victorious on the night.
Mijal: That’s awesome. So Natasha, you’ve begun already to speak about the weaponization of human rights law. Can you give us a little bit of a primer?
Let me maybe say it the following way. As I was preparing for this conversation, I began to realize how much I don’t know. Because as an American citizen, I can roughly describe a little bit, you American law, where did it come from? I can think about, you know, when America was founded and the Constitution and the way that they describe, they derived their power from and the way that, you know, they set up the Supreme Court and Congress to think through the law and the way there’s state and federal mechanisms of enforcement. So I can, I can explain what American law is. But then when I sat back and I was like, wait a second, what is this thing called international law, like who’s in charge? Who determined it? Who gets to apply it? Is this only for states? Is this for everybody? Does everybody agree? And I started realizing how messy this is.
So do you think you can do a little bit of like a guide to the perplexed without going too deep into it, just like a couple of minutes describing in very broad terms, when we speak about international law, especially questions around humanitarian law. Can you give us a bit of a primer?
Natasha: Of course, I mean it’s important perhaps to highlight that there are many who say international law simply doesn’t exist. And that’s because they compare it with domestic legal systems. I mean, what you’re describing in terms of American law originated of course with the English common law system. But it is subject to enforcement through courts, through police, through prisons, if we’re looking at the criminal context. All of that is far more nebulous in the international arena.
And that is because international law is law that is agreed between states. So when I was at university and I first was studying international law, my professors were telling me that most states follow most international law most of the time and therefore it is legitimate. There is a legal system in the international arena. It’s something that we recognise, are books written about it. But it is definitely of a very different nature to the law that we would be familiar with in our everyday existences.
And because it’s more nebulous, it is also far more susceptible to abuse. If you think about the family of nations, there are law-abiding states where rule of law is prized, like the US, like the UK, but there are also despots out there, dictatorships, where rule of law isn’t seen as a curtailment on power as it is in Western liberal democratic states. It’s in fact seen as a tool by which to wield power—
Mijal: For the lay person, what are those bodies that represent international law? And is it only about saying the law or also about enforcing it?
Natasha: So we’re looking at both legal institutions but also political bodies like the United Nations. And it is difficult to maintain a proper distinction between those because there is a little bit of back and forth.
Two of the main sources of international law are treaty and custom. So treaty is like a contract that states enter into, a document that they sign themselves up to and bind themselves by. That can be bilateral, so two states entering into it or can be multilateral, there can be a convention that lots of states sign up to.
Custom is a very strange phenomenon. It emerges over time out of state practice. So if states are behaving in a particular way, essentially because they believe themselves to be legally bound to behave in that way at some point, we say custom crystallizes and the states are actually bound in international law to continue that behavior.
But in terms of the enforcement, we’re looking at very, very different situation to a domestic legal system. We essentially rely on states themselves to enforce law. If it’s coming from the International Court of Justice, that is a court that deals with states. It’s situated in The Hague in the Netherlands and it mediates disputes between states where it has jurisdiction to do so, either because states have signed up to a particular convention that gives the court that authority or because, for example, the General Assembly might ask the International Court of Justice to provide an advisory opinion, but basically its analysis as to what the law says on a certain subject, that’s not going to be legally binding, but it is authoritative and most states do take that into consideration when conducting themselves.
Mijal: So when the International Court of Justice was thinking about Israel and accusations of genocide, part of the reason it had jurisdiction to do so is because Israel had signed on to, is it what treaties or conventions? Right, that gave the International Court of Justice jurisdiction over these matters.
Natasha: Mmm, the Genocide Convention. Yeah, absolutely. And interestingly, that is probably why South Africa levy this calling untrue allegation of genocide against Israel because it was using it as a legal hook to bring Israel to the International Court of Justice because both South Africa and Israel are signatories to the Genocide Convention. So that’s right. And some people have been calling for Israel to come out of the Genocide Convention as a result because that would simply mean that the International Court of Justice did not have jurisdiction to consider this obscene allegation.
Noam: Natasha. First of all, I’m going to The Hague in like six weeks. So I want to know if there’s anything I should…
Mijal: What are you going there for, like for fun?
Noam: I figured I’m either going to Hawaii or The Hague. So I was like, you know what, let’s just go to The Hague this time. No, I’m an Aspen fellow. And one of the things that we’re doing is we’re going to The Hague and Amsterdam and going to spend some time there and understanding international law.Which I’m learning right now, I know again, like very, very little about. It’s amazing. You think you know something and then you start speaking to an expert and you’re like, you know nothing. But my question to you is, to what extent should and why should the Jewish world or Israel care so much about international law? And because I’ve heard people saying, you know what, we’re done with international law. We’re just done with it. Done. Done with it. Is that a ridiculous comment? Is that not a ridiculous comment? What’s your take on it?
Natasha: I think it’s an understandable comment because if you listen to the received wisdom on international law, Israel can’t win, right? It can’t defend itself, it can’t seek to recover its hostages, it can’t ensure that Hamas is never in a position to commit these atrocities of the 7th of October ever again. But that’s not in fact what international law says. So I think it’s really important to make a distinction but also for all of us, collectively, to educate ourselves on what is real international law and what is lawfare, an abuse of international law, the weaponization of international law against Israel in this public discourse, especially since the 7th of October.
Because, I you can say I’m just throwing international law out of the window, but I would argue that is detrimental to so many of the other aspects of international law that enable us to regulate our lives, interaction between law abiding states, international commerce. There’s a lot of good that comes out of the international legal order also.
So I think far better to understand what’s real international law and what is being made up and to push back against those falsehoods because categorically Israel is not on the wrong side of any of these international law debates. in fact a beacon, light unto the nations, if you will, in upholding international law and in setting standards which are practically impossible for other law-abiding states to emulate.
Mijal: What you’re offering right now is you’re saying, really, in theory, international law is not just good, it’s necessary. Instead of throwing the baby with the bathwater, we should continue to insist on it and learn about it and push back against lawfare.
One question I have about that, though, that I’m struggling with, and again, part of it is because it’s hard to know how much the UN plays a role in all of this. But when I think about the UN, it represents to me how a system that is supposed to preserve the liberal world order has been, because it includes so many members that clearly violate human rights and the law, because it puts China and Russia, and all of these countries in positions of authority around human rights, it almost seems so rotten that it cannot be saved.
And as I’ll add one more here, it almost seemed that it represents the weakness of liberal systems in that they include non-liberal actors who can then abuse the system to fight against liberals in the West. So I guess I’m saying it’s not just about Israel. I keep thinking about Iran. Iran gets to have plausible deniability as a state because it has funded all of these proxy actors that are terrorist organizations like Hamas and Hezbollah who are not states, so they don’t have the exact same demands upon them. So you have a state actor that is able to hide behind terrorism and then abuse the system. So with this in mind, how can I still trust and have faith on these kind of systems or hope to fight for truth within them when some of the DNA of it right now seems so not just open to corruption but almost like conducive to it?
Natasha: It’s absolutely right what you’re describing and it goes to the earlier description I was giving of some of the problems with the international legal system because it contains these extremely bad actors. One example was the negotiations over the drafting of additional protocol one to the Geneva Conventions, which was essentially an effort by the Soviet Union to provide cover for its own terror proxies around the world. And we are seeing similar farcical situations with Iran, even Saudi leading institutions like the Human Rights Council at the United Nations or projects for the betterment of women’s rights. I mean, it is being turned into a farce in so many respects.
But there is a difference in that vein between international law being open to abuse and manipulation and misrepresentation and the core elements of international law which are more widely agreed upon which I have to say and reiterate again Israel is very much at the center of promoting, of upholding.
The question on the Genocide Convention is a case in point. The definition of genocide it’s not my definition, Noam, it comes from Article 2 of the Genocide Convention and it lists a series of acts including the killing of individuals, the creation of circumstances which make life impossible. But the way that genocide is defined is if those acts are committed with the intention of eradicating in whole or in part a national racial religious or ethical group as such. So it’s all about the intentional targeting of a group that is identifiable for the purpose of eradicating even a part of that group. It stems from the Jewish experience of the Holocaust.
And actually the way that the allegation of genocide is being inverted and levied against Jews in Israel is pretty remarkable because it is another example, another instance of the victims of a crime being accused of perpetrating the very crime that was committed against them. So it’s so much worse than just making a false allegation because it is this inversion of victim and perpetrator.
And I don’t just mean the Jews as the victims of the Holocaust, I also mean the Jews as the victims of acts of genocide on the 7th of October when Hamas and other Palestinian terrorist groups crossed the border and killed, tortured, raped, slaughtered, burned Jews because they were Jews. They were seeking to eradicate Jews in whole or in part, and they made clear their intention to do that then and their intention to repeat that over and over again. We see this inversion though across lots of different legal terms, occupation, ethnic cleansing, colonialism, apartheid, and now genocide.
And it goes to Mijal’s point entirely that this is unfortunately an international legal system and legal order that is entirely open to abuse. Part of that is because of the way that the international legal practice is inextricably linked with the legal academy.
You often have professors of international law going to sit on international courts, for example. The US judge at the International Court of Justice is Sarah Cleveland, who I knew when she was teaching at Columbia Law School. And inevitably these international courts are made up of judges appointed by countries, not all of them, again, support our concept of rule of law and international law. And therefore you do get unfortunately politicized agendas being pushed at these so-called courts. There is a delicate balance between legally binding processes that are entered into willingly by states that are a reflection of a state’s own sovereignty and ability to bind itself through that sort of decision-making process, either through treaty or custom as I described, and then the illegitimate, weaponized lawfare processes which I think are really important to push back on.
Mijal: I was having a conversation with a friend over Shabbat just about some of the questions I wanted to ask you. One of the questions that came up was just a very basic questions. When it comes to Gaza, is Hamas considered a state under international law? Because even something as simple as that, I don’t even know if there’s consensus and I’m assuming something like that would have tremendous implications in terms of the way we think about Israel’s war in Gaza.
Natasha: So the answer is absolutely not. Or, Hamas certainly is not a state and Gaza is likewise not a state. There is settled international law on the criteria for statehood that’s reflected in the Montevideo Convention criteria. You need a permanent population, a defined territory, government and capacity to enter into international relations.
Now a lot of the debate internationally has been about what recognition of a so-called state of Palestine means. And of course, it’s important to be clear that they are generally referring to the Palestinian Authority, which has an autonomy in the West Bank, in areas A and B. That’s not a state either, according to the recognised criteria in international law. But certainly, Gaza, we’re looking at something which was arguably Israeli sovereign territory before the withdrawal in 2005. That’s because of an operation of a general rule of customary international law called Utiposidetes Eurus. And that operation dates all the way back to Israel’s declaration of independence on the 14th of May, 1948. But after 2005, when Israel withdrew from that territory, and there was initially government by the Palestinian Authority, well, Hamas violently took over in a coup in 2007 and since then it has been a terror enclave but it’s not a sovereign territory and it’s not a state. It’s arguably a vacuum of sorts, a terror nullus.
Mijal: Right. I think in terms of like the popular discourse out there, the two main claims that people have brought against Israel’s actions in Gaza. So I’m not saying I’m agreeing with this, but I’m naming it. So one is around genocide. And that one, think at this point has been just so clearly debunked that it’s almost, you know, it’s almost like not worth getting into where I’m sitting. The other area that I know has come up a lot is a question around proportionality, which is basically to say like… The argument has been that Israel has relaxed some of its own previous standards in terms of how it targets combatants versus non-combatants and how much care it takes.
Natasha: I just say that that particular allegation is complete and utter nonsense. It is being made by people who clearly don’t understand international law or the rule of proportionality in the law of armed conflict. It is also being advanced by people who have absolutely no insight into how Israel has conducted itself in the Gaza Strip over the last year and a bit.
Mijal: Let me just say, I think the way people think about proportionality, which is not the right way, illegally, but I think a simplistic way to approach it almost like a caricature of it would be to say, well, if you kill 10 people from my group, I shouldn’t kill a thousand from yours. And that’s almost like the caricature way of thinking about this. I think in international laws, as you’re going to speak, there’s actually much more nuance and complexity around proportionality and also you’ve shared you’ve been inside Gaza, you’ve shared with me beforehand that you’ve been inside Gaza with the IDF. So could you share with us like in very simple layman’s term, laywoman’s terms, kind of like how to think about proportionality and some of what you’ve seen with your own eyes to support this? Yeah, go ahead, Noam.
Noam: I speak to a lot of non-Jewish students who just don’t know things. The questions that I get asked often are questions like, well, how many Palestinians would it take to kill in order for this to be a genocide? They don’t claim to be experts. They just want to, they want to understand. So they’re not coming from a place of hatred or anything like that. They’re coming from a place of I want to understand. So can you help? Can you help us understand?
Natasha: Yeah. With pleasure. There’s a lot to unpack there. In the context of the numbers game that you’ve described, I I’ve already explained that the key element of genocide is the intention to eradicate a people. And actually intention is at the core of all of the rules of armed conflict also. So that’s probably the first thing to recognize. This is not an effects-based analysis. This is always what was the intention behind a particular strike or military maneuver. And the only entity individuals that are able to make that assessment are those that are furnished with intelligence, decision-making approaches, the tactics that are deployed that inform the intention.
So what we’ve heard is lots of armchair lawyers watching television and seeing devastating pictures coming out of Gaza. And the immediate knee-jerk reaction is therefore to blame Israel for targeting civilians. That is categorically untrue. As a law-abiding state, and with an army that upholds the law of armed conflict, Israel does not target civilians. Full stop.
The fact that civilians die in armed conflict is an unfortunate tragic reality of what happens in war and it is recognized as a reality by the laws of armed conflict, which while they prohibit the targeting of civilians, certainly do not dictate that in armed conflict no civilians die. In fact, the law and the rule of proportionality works on the basis that it is inevitable that civilians will be killed as a result of armed conflict and as Mijal started to sketch out it is about creating a balance between the legitimate military objective that is sought against the expected civilian or collateral damage and that rule is informed by other key rules in the law of armed conflict which are necessity so you only take military action that is necessary for the fulfillment of the military objective distinction, which means that you distinguish between civilians and combatants. You do not target civilians, you only target combatants and military targets, and when schools, hospitals, mosques, clinics, ambulances are being used for military purposes as they are by Hamas, they become military targets and they can lawfully be targeted.
And also very importantly, and the last rule that I’ll highlight is that of precaution, that a law-abiding state has to take precautions to make sure that it minimizes civilian casualties as much as possible. And the precautions that Israel has been taking are unprecedented in the history of armed conflict. From warnings issued to individual householders by text message and phone call to loudspeaker announcements and dropping leaflets to direct civilians through evacuation routes to humanitarian zones through previous examples of the knock on roof tactic that Israel deployed whereby before it exploded a building it sent a non-explosive munition, which created a loud noise as a final warning to those in an area. That’s been a little bit more difficult to deploy here in the context of this war, but it’s important to recognise that one has to take the precautions that are reasonable and practicable in the environment that you are facing.
And so the allegation that was highlighted now that Israel has in some way relaxed its proportionality analysis is… I can understand where it’s coming from. It is a complete misrepresentation though. It is a comparison of the wars or the battles that Israel was previously fighting against individual terrorist entities, either in Gaza or the West Bank, outside of the context of the full-scale war that it has been engaged in against Hamas, which is of a completely different level and on a completely different scale, and where the military objectives are necessarily entirely different. The destruction of Hamas and the recovery of the hostages and therefore the analysis with which Israel has gone into this armed conflict and which it deploys in relation to each of the strikes that are conducted. And that’s an important point to remember. Every single strike is subject to a proportionality analysis whereby army lawyers digest the intelligence as to the validity of a target as to its importance in the grand scheme of the military operations and as to the likelihood of there being civilians in the vicinity.
Now, absent knowledge of what those factors are that have been considered in respect of each individual strike, no one, not academics, not politicians, not news readers, no one can actually pass an assessment on whether Israel has been acting proportionately or disproportionately because they simply don’t have the information.
And sitting back and watching your television screens and making that assessment is deeply, deeply irresponsible, especially if you’re a lawyer. And there are some who have been opining on this, on that, basis. And I think it’s important to highlight that the states that Israel has been sharing some of this intelligence with, the US and the UK, have been consistent through different governments, Conservative, now Labour in the UK, Democrat and now Republican here in the US, that they are not concerned that Israel is violating international humanitarian law with respect to targeting or proportionality. So the fact that some people would claim to know better than the Israeli experts who have been making these decisions and those non-Israeli experts who have been provided with the information to make this assessment is pretty extraordinary to me.
One final word I would just say on how this is being projected in the international discourse. It is utterly macabre that one would suggest that proportionality is based on a death count on both sides. Clearly that’s not how the law of armed conflict works, but it’s also not how any moral analysis of this should go because it simply provides Hamas an additional incentive to use and abuse Palestinian civilians as human shields. And that has to be encouraged.
And it is also deeply misinformed by the propaganda that Hamas has been putting out about the casualty count. The numbers coming out of Gaza cannot be trusted. I mean, apart from anything else, part of the methodology here is Hamas circulating a Google document saying, insert your martyrs here. So the numbers, total numbers that they’ve been putting out have been subjected to detailed analysis by data scientists going through the raw data, that have demonstrated that internally their statistics simply don’t add up, but they don’t make any distinction between civilians and combatants as required by international law.
And we also don’t know how these people have died. Please don’t forget, we have evidence of Hamas shooting their own civilians, be it when they were seeking to flee, according to Israeli evacuation plans at the start of the conflict, or seeking to access aid that Israel has facilitated into the Gaza Strip that has been distributed by humanitarian organizations out on the ground, Hamas has been shooting Palestinian civilians going to get aid from these trucks. We also know that when Palestinian Islamic Jihad or Hamas rockets fired out of the Gaza Strip towards Israel fall short in the Gaza Strip, they kill indiscriminately. They’re not preceded by warnings like Israel’s strikes are.
There’s no proportionality assessment connected to those rockets falling short. And we also, on top of that, know that Hamas have been including natural deaths and have been inflating the casualty figures that they have been putting out.
Mijal: Well, Natasha, everything you’re saying right now, it’s just almost like brings me back to my sense of skepticism about some of international law because I’m thinking in America, again, as a comparison point, the reason the law works is because all parties are subject to it. And we’re talking here about a system of international law that expects a certain morality from a state.
Natasha: Yes.
Mijal: And that doesn’t expect so from a terrorist group. And not only that, trust the terrorist group in terms of its own casualty figures or things like that. So that that feels abysmal.
Let me let me ask you one more question. And it’s a huge question. But I think that amongst let me just say amongst pro-Israel, okay, or at least not anti-Israel or not pro-Hamas. Among folks who don’t demonize Israel, I think that there is right now an understanding of how bad Hamas is, an understanding of the fact that the genocide claim was a blood libel. I do think that there’s other areas, and I want to name it here for our listeners also, there’s other areas where supporters of Israel, or at least not its opponents, would disagree when it comes to international law.
Perhaps the main area has to do with Israel’s rule in what we might call either Judea and Samaria or the West Bank. What some of their opponents of Israel called the occupation and what some people, even if they don’t call it that, and I know there’s different viewpoints here, but I think it’s hard to disagree with the fact that right now there is a territory where there is a different rule of law for Jews and Palestinians in the same kind of territory. I wanna invite you to disagree, but I also just wanna name, it’s important for me to name here that there are going to be people who are either pro-Israel or at least non-anti-Israel who are going to disagree.
Natasha: I would disagree with that.
Mijal: and are going to have a good faith disagreement on the application of international law and how it applies to Israel. And some of them will say, no, Israel is not actually violating it. And some of them would say, actually, there is a problem here that we have to figure out because we have signed to certain treaties and we want to be part of the family of nations and we want to be allied into the nation. So we have to figure this out. So I want to name that as like a disagreement that is that is significant.
Natasha: I tell you what, I’m going to extend my time with you so that we can actually get into that because not dealing with the specifics means that unfortunately the conversation is open to abuse and misrepresentation and I think it’s helpful that we have this opportunity to try and delve into a little bit of the detail to unpack this. But what I would say is that while there can be different arguments about, and I’ll go through some of them, the status of the territory, there cannot categorically be any disagreement about this suggestion that Jews are treated differently from Palestinians or this is a Jew versus Arab situation. I know it’s the allegation that Amnesty International and Human Rights Watch have sought to advance but they have done so by entirely misrepresenting the situation on the ground.
And the reason I say that is because Israel is a state of its citizens and they include Jews and Arabs. So the suggestion that there is a distinction between Jewish and Arab Israeli citizens and the law that they are subject to is a complete non-starter. It is not arguable and it is entirely untrue, first part of the sort of factual allegation that I think it’s important to be very clear on countering. There is absolutely no debate to be had about that.
What people are raising in terms of a different legal system within the area of Judea and Samaria and the West Bank actually arises most recently from the application of the Oslo Accords. And that is, what created these separate areas, areas A, B, and they created a Palestinian autonomy in areas A and B. So those individuals living in the PA authority are supposed to be voting for their leadership. Mahmoud Abbas is now, I think, past the 19th year of his four-year term, but Israel doesn’t control the Palestinians there or their ability to have elections. It’s an unfortunate reality that they are governed by a corrupt despotic entity, but the suggestion that they are being ruled over by Israel is simply not borne out by the facts on the ground or indeed the framework which the international community endorsed that the Oslo Accords established.
Area C remained under Israeli administration. Now when I say remained, it’s important to understand what the position was pre-Oslo and I mentioned that the status of the territory is critical here, getting the law right on this informs, I would suggest, every aspect of the debate and every possible negotiation, political negotiation, that might be entered into to find an ultimate conclusion, solution, or even a working solution to the broader conflict, if you will, in the Middle East.
Ultimately, there is clear customary international law that does tell us what the status of the territory of the West Bank has been since 1948, because it is the rule that determines the borders of newly emerging states when they achieve independence. This is a rule that was actually developed in order to try and avoid a terra nullis, a vacuum, the sort of situation that I described when we were discussing Gaza, developed to provide stability and certainty and as the International Court of Justice referred to when it talked about the emergence of this rule the idea was to prevent factuacidal struggles and ultimately the key aim of international law is to avoid conflict and to avoid war. So the rule of uti possidetes, Eurus, dictates that Israel automatically inherits the pre-existing administrative boundary of whatever it preceded it, absent there being any agreement to the contrary. This is the default rule. It doesn’t require Israel to make this public or to profess that this is its territory. And in fact, in the Declaration of Independence, there are no borders or boundaries referred to. There is simply the term that is used, Eretz Israel, the land of Israel.
And so it is customary international law and Uti Posideta Zures that actually gives us the clean lines, the line on the map and the previous boundaries of the British Mandate that Israel took on as its internationally recognized borders included the West Bank and East Jerusalem which was pretty soon after independence occupied by Jordan and that occupation which was accompanied of course by the ethnic cleansing of Jews lasted from the end of the war in 49 until 1967 when Israel recovered that territory but there is no, no other entity that has a sovereign claim.
The Palestinians were never a state and in fact it’s important maybe on another occasion we can unpack what Palestinian national identity is. My grandparents were Palestinians. They were living in the British Mandate Palestine before the establishment of the State of Israel and their identity cards issued by the British indicated that their nationality was Palestinian. But from 1967 until the Oslo Accords on the territory that Israel recovered from Jordan, it instituted a temporary administration. There was an expectation under the Land for Peace formula that under a peace agreement with Jordan, Israel would surrender some of the West Bank in order to facilitate, in order to buy the Jordanians off and get peace with them. But in 1994, when that peace agreement ultimately came about, the Jordanians didn’t want anything to do with the territory. So we’ve got to track through the legal status from 1948 through 1967 up until the Oslo Accords in the early 1990s.
And when you do that you realize it puts the lie to the term occupation, it certainly puts the lie to this idea of illegal settlements quite apart from the moral position that is being espoused by those who argue for that, that says Jews shouldn’t live in certain areas simply because they are Jews. But it also indicates very strongly that those individuals that argue that Israel controls that territory or is instituting sometimes we hear apartheid principles there either haven’t been or don’t understand what the position is on the ground but certainly don’t understand the legal position since the establishment of the Oslo Accords and the responsibilities that Israel had undertaken as a result of that what it has done with respect to Area C.
And one last thing perhaps that I ought to raise is that quite apart from there being illegal building in the context in which is usually raised in the international community and international discussions, there is in fact a substantial amount of illegal building that is being funded and encouraged by the international community. In fact, the European Union is one of the key perpetrators of this.
Mijal: So, I think part of what you’re raising and reminding us is how we might throw around terms and might speak with a lot of confidence. Yeah, Area C, yeah, the West, yeah, the Oslo Accord, yeah, okay, you know what I mean? And actually there should be a lot more humility and a lot more investigation because so many of these things have a history, they are complex. There’s some legitimate ways to disagree and there’s also lot of positions that are completely irreconcilable with the reality on the ground and we need to be able to call those out.
So I think that I would benefit from like a part two that is longer and slower and allows me and Noam, because I know all of us, think, Noam, I’m guessing both of us are like, wait, what about this? What about that? Explain, I need to understand this better. So it would really benefit from that.
But again, I think I’ll just say for me, preparing for this episode has been uniquely humbling, mostly because I was like, oh, I think I know what I want to ask Natasha. And then I started looking it up and I’m like, I don’t know what I want to ask Natasha. I think all of my priors and assumptions are built on a lot of armchair theorizing and not actually knowing things. So, Noam, are you also humbled? Do you want to admit to that?
Noam: I’m always humbled. I’m humbled when I talk to you, Mijal. Come on. Come on. Come on. But no, really, really, Natasha, just thank you so much for joining us, for enlightening us, for being in this conversation with us. Got me thinking about a lot. And like Mijal said beforehand, we should continue wondering together and hearing and exploring ideas together. So thank you.
Natasha: Pleasure.
Mijal: Yeah. Thank you, Natasha.
Natasha: Thank you.