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By Eugene Kontorovich
(AUGUST 10, 2023 / ISRAPUNDIT) Appeals to scientific or expert consensus have in recent years played a significant part of the debate on contentious issues.
For laymen, even the nature of the alleged consensus may be difficult to evaluate. Is it a consensus arrived at by experts of varied prior beliefs critically and independently approaching an issue without regard for the public policy implications of their conclusions, or is it one that reflects the self-replicating and conformity-inducing tendencies of academia?
Appeals to authority and academic consensus feature prominently in professor Nathaniel Berman’s piece in these pages, “Israeli Settlements and International Law” itself a response to Malkah Fleisher’s more personal reflections
(“I Have a Right to Live in Judea and Samaria”) on the legitimacy of Jews living in the West Bank, or Judea and Samaria, to use two competing names for those areas of Mandatory Palestine ethnically cleansed of Jews by the Hashemite Kingdom of Jordan in 1948.
Everyone knows that “Israeli settlements” are controversial, and here is where international law comes in. Many take the position that even though Jewish resettlement of these lands was made possible by Israel’s taking control of them in 1967, the Jewish state must nonetheless enforce a ban—a cordon sanitaire, a Pale of Non-Settlement—on Jewish residence perfectly congruent with the zone of Jordanian ethnic cleansing, and lasting until such places might come again under the control of an Arab government committed to “not a single Israeli.” Put in such terms, the anti-settlement argument may not have a broad moral appeal, which is why authors like Berman seek to cast it as an incidental application of neutral rules, applicable around the world. Yet he fails to mention where else these rules are applied, because the answer is nowhere.
Berman appeals primarily to authority and consensus, claiming a wide variety of impressive-sounding international bodies, from the International Court of Justice to the International Criminal Court, that consider Jewish communities in the West Bank illegal. Don’t bother arguing the law, Berman suggests—the matter has been decided, with only a few kooks holding out. “The few international legal writers who depart from this consensus are primarily current or former officials of the Israeli government and a small number of right-wing Jewish writers in the diaspora. Their arguments have been soundly rejected by the rest of the international legal community,” Berman writes.
Consistent with a broader pattern of neglecting contrary evidence and attacking straw-man arguments, Berman fails to mention that the United States has formally adopted the legal view that Israeli settlements are not illegal—perhaps because this squarely contradicts his claim of a global consensus. The State Department announced its position in 2019, under President Donald Trump, but the Biden administration has not retracted it. This should not be surprising, because no U.S. government has taken the position that settlements are illegal.
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