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Editorial Article

College of Management Academic Studies – Law Professor Orna Bar-Naftali uses “Law” to Bludgeon Israel

Lee Kaplan, www.isracampus.org.il
28/6/2009

“There's no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets the truth.”-Jean Giraudoux

The pursuit of personal political agendas has reached into even the law schools in Israel and America, where international and humanitarian law is supposedly debated and taught. A case in point is law professor Orna Bar-Naftali, the head of the law school at the College of Management and Academic Studies in Israel, one of the Jewish state’s larger institutes of higher education. Bar-Naftali earned her law degree at Tel Aviv University, then went on to earn other graduate degrees in America, including a PhD in Law. She is now the Dean at the College of Management, which boasts exchange programs with Fordham University in the US.

Orna Bar-Naftali has been working assiduously with leftist lawyers in Israel and abroad to suggest that Israel routinely violates “international law” and “human rights.” An examination of the woman’s background and legal discourse becomes quite revealing of an agenda to smear Israel and drown the Jewish state in a malaise of her legal “interpretations,” as well as to provide propaganda against the Jewish state by certain NGO’s that have an anti-Zionist and even anti-Israel agenda.

We learn that Bar-Naftali is on the executive board of directors for B’Tselem, an anti-Israel far-leftist NGO which pretends to be a human rights watchdog agency, and one that accepts Arab rumors and statistics as fact to damn the Jewish state. For example, B’Tselem in the past has reported Arabs who were killed in suicide bomb attacks or armed terrorists fighting the IDF as “civilian casualties.” The problem is that B’Tselem sees no human rights violations when Arab terrorists murder Jews, only when Jews try to defend themselves from such murderers. It has repeatedly shown itself to be less than honest in reporting alleged “humanitarian violations” by the IDF or by “settlers,” and is hardly a credible or reliable neutral source of information.

Bar-Naftali worked between 1993-1996 as a legal United Nations Staff Member of the Department of Peacekeeping Operations in New York. Working for the UN might have helped her develop her anti-Israel biases and legal interpretations. The United Nations is anything but impartial toward Israel and its peacekeeping mission was even responsible for aiding the abduction and killing of Israeli soldiers, one an American, by Syria in October of 2000. In Lebanon, most recently, the UN did all but nothing to prevent the rearming of Hizballah.

Of particular interest is how Bar-Naftali, the lawyer, has declared the “occupation” as being against international law and humanitarian law. The word “Occupation” itself, according to anti-Israel radical leftists, is a loaded word with dual meanings. Depending on the audience, it can mean just Gaza, Judea and Samaria (the West Bank) but increasingly what it really means is all of Israel. To which “occupation” does Naftali refer when she opines that Israel’s occupation is “illegal” per international law?

It is this selective one-sided interpretation of “law” always against Israel by Bar-Naftali that is particularly troubling. If one reads or listens only to Bar-Naftali’s “interpretations” of law, one might subscribe to the notion that Israel does indeed violate international law and human rights. However, it is the reverse that is true. A lawyer like Bar-Naftali who leaves out historical or current facts to promote a cause or person in court has an agenda, not a goal of participating in using law to uncover truth and justice. Bar-Naftali may be a law professor at an Israeli university, but she functions as an advocate for those who want to destroy Israel, especially through disinformation. She has an impressive curriculum vitae (she holds several advanced degrees from US universities). Nevertheless, one has to scratch one’s head about someone who spent a life in academia studying law on two continents, yet uses that training to support the goals of the most vile and anti-law groups imaginable, the terrorist organizations and leadership of the PLO and Hamas. At every turn Orna Bar-Naftali finds fault with Israel and some of Israel’s Jews to aid a society that still practices honor killings and promotes anti-Jewish blood libels—the Palestinian Arabs.

Most recently, Bar-Naftali lent her “expert” opinion to a lawsuit filed in Canadian courts against a Canadian company for doing business with and helping to build a Jewish community in the West Bank. Being an “expert” in “international law,” Bar-Naftali provided support for the weekly rioters in Bi’ilin by advising the Canadian Supreme Court that Israel (a country whose future lawyers she is teaching) has no jurisdiction over the occupied territories.

Mind you, it is “International Law” that helped create the Oslo Accords in the first place. In fact, Israel has conceded a “legal entitlement” to the Palestinian Authority to create a Palestinian state if it would just stop terrorism against Israelis. Israel’s Supreme Court has been used by PA Arabs to sue Israel and in many cases the Arabs have won. But that isn’t good enough for Bar-Naftali. She thinks Israel’s Supreme Court is illegitimate (no doubt because Israel itself is also) and she wrote the Canadian court that:

“I have been advised that in the case of Bi’ilin vs. Green Park Int’l Inc. et al., the defendants have filed two motions

with the Quebec Superior Court on issues res judicata, justiciability, and forum non-convenience. I have been asked to

provide an opinion on the issue of justiciablity and to answer the following question:

‘Is the issue alleged by the plaintiffs of violation of International Humanitarian Law and Canadian Domestic Law

justiciable before the Israeli courts, and are those courts willing to adjudicate on the question of the legality of settlements in the Occupied Palestinian Territories in this case?

‘In my opinion, the answer is negative. The core question of the legality of the establishments of settlements is non-justiciable before the Israeli Courts.”

Naftali goes on to state, ‘The Plaintiffs’ (hereafter Bi’ilin) have brought suit against the corporate defendants and their registered director (Hereafter Green Park Companies) under the provisions of the Geneva Convention Act, R.S. 1985,

C G3, and the Crimes Against Humanity and War Crimes Act S.C. 2000 c. 24…I understand those statutes have been incorporated into Canadian Domestic Law and that they incorporate principles of International Humanitarian Law as found at article (49) (6) of the Fourth Geneva Convention dated August 12, 1949”…”

The “Plaintiffs,” as Bar-Naftali refers to hooligans, thugs, and rioters in Bi’ilin, should be redefined for what they really are: weekly international anarchists rioters from the International Solidarity Movement and their Arab irredentist friends. The Geneva Conventions apply to established nations who signed an agreement to be followed in the event of war. This does not apply to violent rioters and vandals.

Bar-Naftali is “fishing” for international condemnation and isolation for the Jewish state abroad, using, or rather misusing, law to justify her actions. A recent ruling in a US court requires the PA to pay damages to American families whose children were killed in PA sponsored terrorist attacks. The PA “defense” that this was in time of war and not subject to legal action fell on deaf ears when the judge pointed out that there is a peace process, not a war. This might also come as news to Bar Naftali. And why does Bar-Naftali have nothing at all to say about the Palestinian refusal to release Gilad Shalit? On the one hand, Bar-Naftali erroneously cites the Geneva Conventions (a frequent ruse of the PLO) to bludgeon Israel, while on the other has nothing to say about the treatment of Shalit under the same Geneva Conventions and Red Cross guarantees.

In the legal mind of Orna Bar-Naftali, Israel has no jurisdiction over Judea and Samaria, no matter what international law says (see the writings of Prof. Louis Rene Beres on this matter). What a pity this woman hasn’t the time to use international law and the courts to tackle the issue of honor killings in the PA, or the land law on the books there that condemned an Arab to death for selling land to a Jew.

But wait, there is more:

Quoting Bar-Naftali and a co-author in another article in the Berkeley Journal of International Law:

“The intrinsic legality of an occupation is to be measured in relation to three interrelated fundamental legal principles: (a) Sovereignty and title in an occupied territory is not vested in the occupying power; under contemporary international law, and in view of the principle of self-determination, said sovereignty is vested in the population under occupation; (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The dispossession and subjugation of these people is thus a violation of this trust, and (c) The occupation is temporary, as distinct from indefinite. The violation of each of these principles, as distinct from the violation of a specific norm which reflects an aspect of these principles, renders an occupation illegal. Further, these principles are interrelated: the substantive constraints on the managerial discretion of the occupant elucidated in principle (a) and (b) respectively, generate the conclusion that it must necessarily be temporary, and the violation of the temporal constraints expressed in principle (c) cannot but violate principles (a) and (b), thereby corrupting the normative regime of occupation. This occupation is illegal. This is the nature of the Israeli occupation. The extrinsic legality of an occupation is to be measured by its exceptionality. Once the boundaries between the exception and the rule are blurred, the occupation becomes illegal.”

Note that what is missing here is a discussion of “occupation” when the enemy forces are still trying to annihilate the “occupier” or where the “occupied lands” actually rightfully belong to the “occupier.” In the case of Israel, the “occupied” territories are its historic heartland. Also missing are territories owned by victors and taken away from aggressors in wars the latter started.[1]

And as usual, Bar-Naftali leaves out the important information to damn the Jewish state when it suits her. In a bit of irony the above by Bar-Naftali unintentionally makes a case for Israel’s control of its “occupied” lands:

Point of fact: there were 25 Jewish communities in Gaza, Judea and Samaria prior to the Arab attacks on the new Jewish state in 1948. Overrun by armies of the Arab Nation at that time, Egypt and Jordan, the land these were based on was legally purchased. Despite this, the Arab armies took the land (and even murdered the occupants after the Armistice as in Kfar Etzion). Using Bar-Naftali’s own arguments, the land was thus occupied by Arabs against international law and certainly the murder of 35 Jews in a pit in Gush Etzion was a “humanitarian” crime.

But the fact that Israel regained this property in 1967 in a defensive war means nothing to Bar-Naftali, because she is only interested in Israel being decreed guilty of violating “international law” and “humanitarian rights.” Going a step further, settlements established by Israel in Gaza, Judea and Samaria after 1967 are at worst disputed territories, since they are in areas illegally held by Jordan or held in trust by Egypt and not owned by those countries. In most cases they are on lands purchased legitimately by their “occupants.” In other cases they were built on ownerless sand dunes or desolate empty areas.

Even worse, she does not even support Israel in having a right to defend its own people from terrorism. It should come as no surprise that Bar-Naftali also found fault with Israel’s Operation Cast Lead that she also declares as supposedly being in violation of Humanitarian Law (unlike the firing of missiles at schoolchildren in Sderot). When Israel used International law to justify Operation Cast Lead into Gaza after the southern part of the country endured over 7,000 missiles attacks by Hamas, Bar-Naftali took strong exception to this.

In discussing Israeli operations in Gaza, Bar-Naftali complains that international law, her field, is bankrupt, and the results of the IDF operation in Gaza only reinforces her opinion. “Today, this discipline is utilized only to justify the use of force,” she said. “It has ceased to exist, because there is a clear inconsistency between the rules and the reality to which they are applied. Distinctions between types of conflicts or between civilians and combatants no longer exist in the field, and one can put forward weighty and serious reasons that will justify almost any action. The implication is to validate the use of almost unlimited force in a manner that is totally at odds with the basic goal of humanitarian law. Instead of legal advice and international humanitarian law minimizing suffering, they legitimize the use of force.”

If one uses the logic of Orna Bar-Naftali, the use of force is always a violation of Humanitarian Law; accordingly the allies in World War II were in violation of Humanitarian Law for using force to end Hitler’s reign. Arab terrorism never seems to interest her. The early Oslo Accords stipulated there would be an independent Palestinian state by 1998 only if the Arabs would stop terror against the Jews. Instead, they escalated the terror. In Bar Naftali’s opinion, evidently there is no lesson to be drawn from that

The joking definition of chutzpah is said to be a man who murders his parents then throws himself on the mercy of the court because he is an orphan. That seems to be a good parable for the type of legality promoted by Orna Bar-Naftali. It involves using the law to indict Israel for being the victim of the most brutal and lawless groups of Islamofascist criminals on the planet, and for daring to defend its own population. 


[1] Something of note that few readers would know, the law school at UC Berkeley actually encourages lawbreaking when it comes to Israel and even provides office space at California taxpayer expense to the Arab boycott and divestment movement on campus. The office of the Law Students for Justice in Palestine devotes all its time to proving that Israel, founded by the UN in 1948 under international law is, in fact, an “illegal” state.

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Op-Ed articles appearing on IsraCampus.Org.il are those of the writer and do not necessarily represent the opinion of IsraCampus.Org.il