Rules of Attainder

Categories: Israel
By Jeffry V. Mallow, Phd.

Rules of Attainder

Bill of attainder: A legislative act that singles out an individual or group for punishment without a trial.  The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”

It is by now a truism that Israel is the victim of a double standard, accused of being in violation of existing international norms to which other nations are not held accountable.  Examples are not hard to find.

International law says that the blockade of the port of a nation by another is a casus belli.  Thus, Israel’s blockade of Gaza’s access to the sea is such.  Yet Egypt’s 1967 blockade of Israel’s port on the Gulf of Aqaba was not considered a casus belli, and Israel’s attack on Egypt is therefore described as the first act of that war.

International law defines “refugee” as one who has left, either by force or fear, the place where one was born.  Yet, the definition has been expanded to include every descendant of Palestinian refugees, while the Jewish refugees from Arab lands are rarely if ever the subject of international interest.

International law deems that charges of war crimes or “crimes against humanity” are to be the object of investigation.  Serbia and Rwanda are recent examples, charged with attempted genocide. Yet Israel is far and away the most frequent target of such charges. So either the Jewish state is the major perpetrator of crimes against humanity, or the plight of Darfur, to take only one example, is less serious than that of Lebanon or Palestine.

International law requires that any military operation be “proportionate” as measured not against any single specific attack, but in the light of the overall threat being faced.  In the case of Israel, virtually all of its responses are deemed disproportionate.  (A Google search for “disproportionate response” shows a quite disproportionate number of sites devoted to Israel.)  So either the Jewish state is the major perpetrator of disproportionate response, or it is not sufficiently threatened, or other nations’ responses to attack are rarely if ever disproportionate. The fact that many countries have accepted this assessment shows how effectively the poison has entered their bloodstream.  Western European veins have proved particularly welcoming, as their popular surveys have voted the Israel “the greatest danger to world peace.”

International law does not permit an occupying power to build settlements on occupied territory, let alone to annex it.  Israel is censured for building settlements in the West Bank and for annexing East Jerusalem.  Yet China is not censured for its occupation of Tibet (dating from 1950) and its wholesale eviction and murder of (at this count over a million) Tibetans as it builds permanent settlements.  On the contrary, its annexation of Tibet is now validated in atlases.

These are well-known examples of a double standard, although they are worth repeating. However, there is something even more pernicious at work: the invention of rules to be applied to no other country than Israel.  These are bills of attainder, prohibited by the US and presumably by other nations that call themselves civilized.  Since they are not codified in international law, we might call them “rules of attainder.”  They should be distinguished from mere (!) double standards, because they target a single nation’s actions after those actions have occurred. (Thus they are also ex post facto.)  Double standards have at least the fig leaf of legality since they are based on already existing law.  Rules of attainder have not even that.

Here are some rules of attainder, and their endorsers.

Occupation is illegitimate.  This is a contravention of the Fourth Geneva Convention, which defines what an occupying power may do, thus does not state that occupation itself is illegitimate.  Yet the UN and other institutions have repeatedly said just that. The customary phrase describing this is “the inadmissibility of the acquisition of territory by the use of force.”  It would be easy to call this simply a double standard, invoking for example the cases of Russia in Karelia and (once again) China in Tibet.  But the principle was not, to my knowledge, invoked, or even invented until after June 1967.

The formation of a state with the use of violence deligitimizes that state’s right to exist.  This new doctrine of original sin ignores the mode of formation of most of the nation-states on this planet–except one.
Nation states are obsolete.  Some European leftists make this claim, and propose that  states formed after a certain time should not be recognized.  That time is 1947.  Remarkably, they are willing to sacrifice India, Pakistan, most African nations, as well as many small island states as collateral damage, if only their primary target is made to vanish.  However, it is likely that if this absurd rule were ever to be invoked, ways would be found to exempt all nations–except one.

All civilian deaths and injuries are war crimes.
One does not have to look far for endorsers of this rule of attainder: Human Rights Watch and Amnesty International, talons unsheathed and fangs bared.  In its investigation of Israel’s actions in the 2006 Lebanon War, Human Rights Watch acknowledged that Israel had leafleted villages which were Hezbollah strongholds, warning inhabitants to leave.  But rather than recognizing that this action put Israel’s own soldiers at risk in order to minimize civilian casualties, Human Rights Watch censured Israel for attacking the villages while presumably knowing that some inhabitants had not left.  This despite the fact that international law holds that choosing to remain rendered those civilians combatants.  We even heard a Lebanese boast that civilians had intentionally stayed to protect Hezbollah.  That is, they bet that Israel would either allow Hezbollah to continue to attack it while making no response, or be subject to condemnation.  Human Rights Watch did not disappoint.

Amnesty International for its part has published a report on purported war crimes committed in the recent Gaza War.  Unsurprisingly, it claimed that reports of Israel’s war crimes were substantiated, while reports of those by Hamas were not.  Putting aside the procedural details of such “investigations,” we can rejoice that in its 117 page report, Amnesty found a small space in which to acknowledge that Hamas’s 8,000 rocket attacks on Israeli civilians also constitute war crimes.  This appears to be an amendment or contradiction of its earlier statement that Israel’s response was disproportionate because the rockets weren’t very effective.  And this itself begs the question as to why Amnesty hasn’t been investigating what it now calls war crimes since the time that those rockets began to fall.

There is no such thing as a casus belli. This sudden invocation of pacifism is the most remarkable of the rules of attainder, because it subsumes others.  If 8,000 rocket attacks are not a casus belli, then any response whatsoever is disproportionate, and any civilian deaths or injuries are war crimes.  To put it in simple terms, any form of self defense is illegitimate–but only for the nation for whom the rules of attainder were designed.

Postscript.  At this point, I am supposed to utter the mantra, “While I don’t support everything Israel does….”  As if this provides a kind of legitimacy.  To whom?  Those who have heard these words for decades are either convinced, or, opposing everything Israel does, will never be convinced.  I will never say those words again.  Never again.

Jeffry V. Mallow

July 2009

About Jeffry V. Mallow Ph. D., Immediate Past President

Jeffry V. Mallow is Emeritus Professor of Physics at Loyola University Chicago. He does research on science education and on quantum physics. He is a member of the Forward Association and honorary chair of the Chicago YIVO Society. His articles on Jewish themes have appeared in numerous publications.  He is the author of Zionist Diarist and Other Polemics. He is also a standup Jewish comic.
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