‘JEWS COGENS’: One rule for me, another for thee
There is a legal term, jus cogens, that refers to a category of norms — peremptory norms — that govern international law. The term speaks to a body of law from which no exemption is permitted, including war crimes and crimes against humanity — rules from which international state actors cannot be excused from compliance.
But lately, there appears to be another area of international law: the law of Jews cogens. That would be a set of “norms” that are only considered normal and inescapable when applied to the Jewish state.
France
When Islamic terrorists killed 128 people and wounded 200 in Paris, France’s President announced: “To all those who have seen these awful things I want to say that we are going to lead a war which will be pitiless.” But when similar Islamic extremists kill ten times that number — and also rape, mutilate and kidnap hundreds of people in Israel — France intends to reward them with a state of their own.
This is France, which collaborated with the Nazis during its Vichy regime, that now seeks to punish the Jewish state for refusing to allow people who mean to commit genocide against it to do so, endangering Jews with its fecklessness.
England
England, in response to Islamic terror attacks in London in 2017, expressed that “[the attacks] are bound together by the single, evil ideology of Islamist extremism that preaches hatred, sows division, and promotes sectarianism. It is an ideology that claims our Western values of freedom, democracy and human rights are incompatible with the religion of Islam.”
And when England was targeted by suicide bombings — the kind of thing Hamas has specialized in — the United Nations Security Council condemned “without reservation” the terror attacks and urged nations to prosecute perpetrators of such “barbaric acts.” In a resolution adopted unanimously, the Council expressed condolences to the victims of the attacks (something it could not do even tepidly when Hamas terrorists and “ordinary” Gazans engaged in an orgy of blood and depravity against Israelis).
During World War II, when Great Britain faced an enemy entrenched among civilians, here’s how Winston Churchill, perhaps the greatest leader of the 20th Century, described Britain’s resolve:
“[General Mackesy] stated that before the proposed action against Narvik [Norway] began, he felt it his duty to represent that there was no officer or man in his command who would not feel ashamed for himself and his country if thousands of Norwegian men, women, and children in Narvik were subjected to the proposed bombardment. ... Before leaving [the Supreme War Council in Paris], I had drafted a reply which was approved by our colleagues:
‘I presume that Lord Cork has read the bombardment instructions issued at the outbreak of war. If he finds it necessary to go beyond these instructions on account of the enemy using the shelter of buildings to maintain himself in Narvik, he may deem it wise to give six hours’ warning by every means at his disposal, including if possible leaflets, and to inform the German Commander that all civilians must leave the town, and that he would be held responsible if he obstructed their departure. He might also offer to leave the railway line unmolested for a period of six hours to enable civilians to make good their escape by that route.’
The Defence Commmittee endorsed this policy, strongly expressing the view that ‘It would be impossible to allow the Germans to convert Norwegian towns into forts by keeping the civilians in the towns to prevent us from attacking’.”
—From “The Gathering Storm,” p. 637 (emphasis added).
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Israel has far exceeded the British example, delaying its ground operations in Gaza for several weeks, establishing and policing humanitarian corridors and safe zones, and utilizing every means of media to warn civilians to evacuate areas that were going to come under attack.
Yet now, in the face of nakedly genocidal ambitions of Palestinian terror groups that are in lockstep with the groups that attacked Londoners, and which have proudly announced that they will commit as many October 7s as they can, England has announced that it, too, will recognize a state of Palestine next month. That polls consistently show Palestinian Arabs, left to their own devices, would elect Hamas to lead them, has given Great Britain no pause.
England was the first European country to have officially banned Jews entirely with the 1290 Edict of Expulsion — an Edict issued on, of all days, Tisha B’Av — and was, literally, Jew-free for 365 years.
Lest we think that modernity reformed British malevolence toward the Jews, in 1929, when Arab mobs massacred the millenia-old Jewish community in Hebron, the British response was to empty the city of all its Jews, instead of punishing the perpetrators. And, of course, in response to violent Arab rioting, in part growing out of virulent Arab opposition to allowing Jews to emigrate to British Mandate Palestine, Great Britain issued the infamous 1939 White Paper, severely curtailing Jewish entry to Palestine, effectively sealing the fate of millions of Jews at exactly the hinge of history when they so desperately needed a safe haven.
This, as well, was in direct contradiction of the Mandate’s terms which charged Great Britain with facilitating Jewish emigration to, and “close settlement” in, Palestine under its watch. The Jewish nation, some 85 years later, has never fully recovered from the slaughter which Great Britain could have helped — but refused to help — avert.
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Neither England nor France (nor Canada, which has jumped onto the soiled coattails of those European countries) provided millions of tons of food, fuel and medical aid to German civilians during WWII. Nor did they do so when they assisted in fighting Islamic terrorists in Afghanistan.
To the contrary, during their wars, they did everything they could to prevent enemy populations from accessing basic resources.
John Spencer, chair of urban warfare studies at the Modern War Institute at West Point, one of the world’s leading experts on urban combat, has pointed out the fact that “Israel is doing what no military has done. It is facilitating direct humanitarian aid to the population of a territory governed by a terrorist army that it is still fighting in close-quarters urban combat. Whether this fact is recognized or not by the international community, it is a historic first.”
Yet Israel, which is unique in allowing millions of tons of aid into hostile territory (aid that is hijacked by Hamas to keep itself well fed and in business) gets only approbation from its supposed friends.
Neither the French in Algeria or England in Iraq, or either during WWII, took anything near the measures to avoid enemy civilian casualties that Israel has and does.
In WWII, approximately 67,000 British civilians were killed by enemy fire. England, with its allies, including the United States, killed between 2 and 3 million German civilians (and 800,000 or so Japanese civilians). It did not kill them by accident or collaterally — it purposely targeted them.
France’s actions in Algeria killed, by some estimates, as many as 1 million Algerians.
Yet England and France have the Charles de Gaulle to accuse Israel of disproportionate force, even genocide, in fighting a war with complexities that those countries never faced in terms of an enemy that so doggedly entrenched itself among, behind and underneath civilians, with the specific aim of maximizing its own civilian casualties for political ends.
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The dichotomy between jus cogens and Jews cogens could not be clearer when it comes to territorial occupation. While Israel has been subjected to inordinate focus and condemnation for allowing Jews to return to live in Judea, Samaria and Jerusalem (after they were illegally ethnically cleansed from these areas), the international community has effectively turned a blind eye — as well as a mute voice and weak hand — to other, similar occupations and policies.
Indonesia in East Timor, Turkey in Northern Cyprus, Armenia in Nagorno-Karabakh, and Morocco in Western Sahara, among others, all have facilitated the settlement by their citizens in occupied territories, yet have received little attention, much less approbation, from the international community or its legal organs.
More on immediate point, very little condemnation was issued and no affirmative action was taken to address Jordan’s illegal occupation of, and the free movement of its citizens into, the very territory (Judea, Samaria and East Jerusalem) that has produced a maelstrom of attention and condemnation for Israel.
Indeed, as Professor Eugene Kontorovich has noted, “[t]he most striking thing about the state practice [with regard to settlement in occupied territories other than Israeli settlement in Judea, Samaria and Jerusalem] is the ubiquity of settlement activity and the accompanying international acquiesce.”
Only with regard to Israel’s presence in Judea/Samaria — the very heartland of the Jewish people and territory to which it has legitimate claims — does the world insist that every last citizen of the occupying power be forcibly removed from the territory in question; that Judea must be Judenrein.
Moreover, while actual genocides (in Sudan, in China involving Uygur Muslims, in Syria where Islamists are targeting the Druze), are being carried out around the world, only Israel is called into the dock in the Hague. In London and Paris and Montreal, hundreds of thousands of people do not fill the streets to display righteous indignation ignited by crimes to which a Star of David cannot be appended.
During the current Gaza war, the law firm where I was working hosted Natasha Hausdorff, a renowned international lawyer who has defended Israel on the international stage. I asked her then: can a rule of international law be considered an actual law, binding on international actors, when in application it is only applied (or applied with extreme disproportion) to one?
Of course, the answer was “no.”
Jus cogens is a thing. Jews cogens is not.
Howard Bressler is a resident of West Hempstead. An attorney, he is author of “Wrong Conclusion, No Resolution: United Nations Security Council Resolution 2334’s Erroneous Conclusions on the Legality of Israeli Settlements in Judea, Samaria and Jerusalem” and “The Layman’s Guide to Surviving Cancer: From Diagnosis Through Treatment and Beyond” (Langdon Street, 2014).
Write: Columnist@TheJewishStar.com
