By Anna S. and Mohammad T.
I went to a talk on February 22 entitled “Disputing Israel’s Borders in International Law,” hosted by the Berkeley Federalist Society. It featured a conversation on Israeli borders, given principally by Professor Eugene Kontorovich of Northwestern Law University and by Professor Kate Jastram of Berkeley Law.
Professor Kontorovich took up the most time and energy, both in the talk and in the questions. If I may summarize his points, and then discuss my thoughts.
His primary aim was to argue against people who frequently cite international law, writ large, and the arms of various international organs as tools to present and legitimize particular points of view. Statements like “This particular action is against international law” becomes dispositive, instead of instructive or helpful. So, then, Kontorovich’s point was to decipher what was “binding” and what was “nonbinding” elements of international law, and to use that as a basis for understanding how borders in Israel work.
He began his talk by saying that he wasn’t interested in larger questions about the moral, religious, or political policy that often undergird many of these debates. His question, he disclaimed, was strictly concerned with deciphering the binding elements of international law.
Binding sources of international law
He initially qualified, and passed over, what he considered non-binding sources of international law. He identified two key non-binding sources of international law: United Nations General Assembly resolutions, and International Court of Justice decisions. All of these, he said, were non-binding, so they are not dispositive for determining who has legal “title” to disputed land in the region.
For him, in order to get to the crux of the issue, once must go back to the Balfour Declaration and Sykes-Picot. Through a methodical and selective extrapolation of historical events, Kontorovich argues that the 1967 borders aren’t really borders at all, and the West Bank isn’t really occupied at all, and that Israel has “title” in the narrow, legally acceptable and international-law-legitimized way. Rather than recognizing, as I think he should, that Sykes-Picot, the Balfour Declaration, and the UN mandate system has very little legitimacy or authority to discern what exactly should be the legal boundaries of the Palestinian state, he proceeded as if they were the alpha and the omega of these border disputes.
This, then, is my first question: who really believes that? Who really decides the contours of the Palestinian state based on the British mandate? What exactly does legal title in this mean? Is that was statehood is about – figuring out what the agreed-upon border dimensions imposed by the French and British were? For Kontorovich, it is. He even mumbled, fairly glibly, that these borders, as codified by Sykes-Picot and as the ultimate source of binding international law, are uncontested in the region, and everyone agrees on them. In other words, these borders, as they stand now, are undisputed.
Funny: that’s not how I read the history. If I know anything about history, I know that damn near ever single person living in the Middle East understands the borders they live under as totally and completely unbinding – as fluid, arbitrary, and the product of a treacherous colonial history. Sure, there might not be an uproar about them everywhere, but that seems a matter of convenience rather than a matter of principle. But even that is untrue: there have been uproars, and there continue to be. What do we make of the Kurdish problem? They were the group of people that Sykes-Picot totally ignored, that the logic of the imperial border-drawing didn’t quite understand and that wasn’t quite compatible with their homogeneous restructuring of an otherwise incredibly diverse and complicated region. What do we make of the rise of pan-Arabism, itself a distinct and complete reaction against the very arbitrariness of the Western-border apparatus seen to have been imposed on, but not consented to, by the Arabs of the modern Middle East? What about the rise of political Islam, a similar movement that understands statehood not in the precise terms of these borders but based on something entirely different? What about Saddam’s invasion of Kuwait? How about the bitter disputes over the Golan Heights between Syria and Lebanon?
The point here is that the very same legally “binding” borders that Kontorovich slyly asserted as legitimate and undisputed have been themselves disputed every since their founding. Why? Because they are not, and were never, self-determinative. There was no consent, so there has been conflict every since. This is the problem of legal “title” in the paradigm of Kontorovich – it’s the same problem that Native Americans confronted in Johnson v. M’Intosh, and the same problem that seems to gnaw away at every post-colonial region on the planet. What is to someone a foundational and binding source of “international law” is to everyone else a colonial project to whom little to no principled legitimacy emanates from.
Kontorovich then suggested that Israel could potentially be considered to have legally acquired the occupied Palestinian territories as the spoils of as “self defensive” position in an armed conflict. He recited the basic tenet of International Humanitarian Law, enshrined in the UN Charter, that the use of force is strictly prohibited, and the concomitant prohibition on the acquisition of territory through the use of force. However, he then went on to suggest that while this prohibition of acquiring territory through the use of force was certainly true for aggressor states, that it may not be so for states that act in self defense.
Prof. Kontorovich recognized that there was no direct legally binding authority for the proposition that international law may allow for territorial acquisition by “defending” states, and indeed acknowledged that the international legal jurists have stated just the opposite in the last few decades. He reasoned, nonetheless, that legal analyses that oppose the acquisition of territory regardless of who the aggressor was, were in fact not general rules that were emerging from a neutral IL community, but rather were in direct response to Israel’s occupation of the occupied Palestinian territory since 1967. He further stated that a survey of pre-1967 international legal “text books” shows that at least two international legal scholars had not ruled out this theory of lawful acquisition of foreign territory. Finally, he explained that this proposition was supported by the policy justification that the acquisition of territory of the aggressor state was a powerful deterrent, and a needed one given that as it stands now, countries that commit acts of aggression would only face sanctions.
The proposal that land may be lawfully annexed following an armed conflict by a state who claims it acted in self defense is legally flimsy and reckless, as well as morally troubling. While Prof. Kontorovich declared that he was not taking a position on whether Israel’s entry into the 1967 War was in fact self defense, his theory obviously flowed from the assumption that it was. His contention that international legal opinion against this interpretation of IHL should be taken with a grain of salt – because it does not represent a general rule but rather just a reaction to Israel’s occupation of the Palestinian territories – is not insightful. International law necessarily develops as problems present themselves, and the fact that a country claiming to act in self defense would seek to acquire the territories of its enemy is sui generis in the modern context and limited to Israel, and thus a challenge to the international legal community. There is no intellectual or legal basis to discount the international legal community’s response that the prohibition on acquiring land through acts aggression regardless of who the aggressor was, even if it is motivated by the particular Israeli/Palestinian situation.
Furthermore, Prof. Kontorovich offers no authority for this proposition as being rooted in international law besides the reference to two authors of pre-1967 text books. These sources are particularly laughable considering Prof. Kontorovich strident dismissal of ICJ decisions and General Assembly resolutions as being binding or even guiding sources of international law.
Finally, Prof. Kontorovich’s policy justification that aggressor states should face tougher deterrents than mere sanctions misrepresents the international community’s response to aggression. There have been very few modern transgressions of this legal precept, and those have been met not only with debilitating economic sanctions but also military responses (Iraq in 1991 and Yugoslavia, for example). Furthermore, there are much more powerful policy reasons that weigh against his proposition. First, such a rule would incentivize countries to wage “pre-emptive” war (which both Israel claimed in 1967 and the US claimed in its 2003 invasion of Iraq) as a way to reap the territorial rewards of being the “defensive” state. Under Prof. Kontorovich’s theory, Iraq could lawfully be the 51st state of the US based on its claim that it was a defender state in the Iraq war. What’s more, Prof. Kontorovich’s proposition reflects an outdated vision of international law as only standing for the protection of states and state interests. International law has thankfully evolved significantly in the last half century to encompass protection of the rights of individuals and self-determination of peoples. Prof. Kontorovich’s proposition would justify the forced renationalization of entire populations into the “defender” state, and would constitute a grave violation of the right to self-determination.
In the end, the talk ended with a few exchanges of questions and the quiet filing out of the small classroom. Professor Kontorovich spun a tightly-wound tale, making it difficult to respond to and appreciate the profoundly troubling foundation upon which his claim of Israel’s legitimate title to the West Bank and Gaza comes from. It was thoroughly entertaining, if for nothing else because it brewed the intense ire of at least two members of the audience who took it upon themselves to write up a massive response paper (i.e. what you’re reading now). But, beyond that, it seems like this position is so out-of-line with the consensus (and rational) thinking on the issue so as to have been almost laughable in veracity. But he was provocative enough to spur this piece – so maybe it worked?