Archive | May, 2024

Why the ICC’s Prosecutor’s Recommendation too Arrest Israeli and Hamas Leaders May Be Historic

23 May

[Prefatory Note: The following opinion piece was published in Middle East Eye  on May 22, 2024; also in Common Dreams. The situation surround the arrest warrants is evolving so rapidly as to justify a later revision. The situation surround the arrest warrants is evolving so rapidly as to justify a later revision.}

Why the ICC’s Decision to Recommend Arrest for Israeli and Hamas Leaders Is Historic

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

RICHARD FALK

May 22, 2024Middle East Eye

2

The International Criminal Court this week made the first truly historic move since its establishment in 2002, with its chief prosecutor recommending arrest warrants against two top Israeli officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and three prominent Hamas leaders.

As expected, both sides have denounced this ICC action in the strongest possible language. Because of Western media bias, the angry reactions from Israel and its allies have dominated the news cycle, while the official statement from Hamas has been largely ignored.

While each side chose a similar line of argument, there is a 180° difference in their substantive outlooks.

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide.

Israel’s most fundamental objection to the prosecutor’s action is the supposed equivalence drawn between Hamas, which perpetrated the barbarous attack of October 7, and the democratically elected government of Israel, which says it acted to defend itself and restore the security of its population.

Hamas and its supporters are also appalled at the equivalence implied by the call for arrest warrants, which “equate[s] the victim with the executioner” in the context of an oppressive Israeli occupation that affirms Palestinian legal rights of resistance, including recourse to armed struggle.

In my judgment, the Israeli response is rhetorical and polemical, to the effect that Israel and its leaders can never be accused of criminality in a context shaped by what happened on October 7, identified as the worst attack on the Jewish people since the Holocaust.

Netanyahu called the recommendation for arrest warrants “a moral outrage of historic proportions”—a “travesty of justice” that sets “a dangerous precedent,” interfering with the right of democratic states to defend themselves.

Defense Lacking

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide, as evidenced by growing protests even in the U.S., Israel’s most unwavering supporter.

The crimes and the evidence are delimited in the language of law, and they are certainly of a magnitude and severity to require a good-faith substantive response by Israel. Nothing less can convince world opinion that the ICC prosecutor exceeded his writ by proposing arrest warrants.

It is especially relevant to refer back to the International Court of Justice’s near-unanimous interim order in January as evidence that the charges against Israel’s leaders are hardly a disgrace or a dangerous precedent. That ruling gives firm, if provisional, grounds for believing that Israel’s violence after October 7 constitutes a deplorable instance of sustained genocide targeting the entire civilian population of Gaza.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine.

To a far lesser extent, the same criticism applies to the Hamas response. Although the prosecutor should have addressed the context of a long abusive occupation and victimization in violation of international humanitarian law, this does not confer impunity on such criminal excesses as were committed on October 7.

The call to issue arrest warrants against Hamas leaders is dubious because of the absence to date of an impartial international investigation into what actually happened on October 7, and of evidence that the Hamas leaders—as opposed to other Palestinian resistance entities, such as Islamic Jihad—have been properly singled out.

It should come as no surprise that the U.S. leapt to Israel’s defense, joining in a rather mindless attack on the credibility of this treaty-based global tribunal, which has a mandate to investigate and take action against perpetrators of international crimes.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine. Such double standards exhibit moral hypocrisy and juridical nihilism, with the U.S. invoking international procedures as foreign policy instruments rather than universally applicable norms.

Irrelevant Statement

In a striking phrase that could have come from the Israeli government, U.S. President Joe Biden said on Monday, “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” He backed up this legally irrelevant statement with the categorical assertion that “we will always stand with Israel against threats to its security.”

Again, this is irrelevant. The only question is whether the evidence supports the issuance of arrest warrants. In reiterating such a one-sided stance, Biden is reinforcing the complaints of protesters everywhere that Washington is complicit in the most transparently reported genocide confirmed in real time, and not in retrospect or abstractly, as was the case even with the Holocaust.

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation.

Beneath the smoke of controversy is the fire of a massive campaign of state terrorism that was projected at first as defensive and reactive violence, but quickly showed its true colours as premeditated violence and forced relocation of Palestinians in Gaza, increasingly remote from Israel’s genuine security concerns.

Also forgotten in the controversies of recent months is the context set by the Netanyahu government prior to the Hamas attack. Even in the West, this governing coalition was described as the most extreme in the history of Israel. What made it so was its undisguised effort to initiate a settler-led campaign to make life as unliveable as possible for Palestinians in the occupied West Bank, expressed by a message delivered in various ways to the effect of: “Leave or we will kill you.”

The Israeli government, including extremist cabinet ministers Itamar Ben Gvir and Bezalel Smotrich, green-lit this violence as part of their priority goal of unilaterally establishing Greater Israel, and ending all Palestinian prospects of statehood or any meaningful form of self-determination.

Multiple Failures

In addition, the fact that Israel received advance warning of a planned and rehearsed Hamas attack, possessed elaborate surveillance and informer capabilities, and reacted to the attack with uncharacteristic incompetence, all make it hard to believe that a massive response scenario was not already agreed upon by the Israeli leadership before a single hostage was seized.

When the Israeli retaliation did commence, it was immediately imbued with genocidal tactics and language, including policies to deprive Palestinians in Gaza of food, fuel, electricity, and water. Most revealing were the forced relocations of Palestinians from northern to southern Gaza, the gruesome attacks on hospitals and population centers, the use of starvation as a weapon of war, and the ongoing efforts to induce Egypt and other countries to accept large numbers of Palestinian refugees.

This sustained campaign seems to have become increasingly self-destructive from the perspective of Israeli security. Many Israelis now believe that the Netanyahu leadership is responsible for multiple failures: to destroy Hamas, to achieve the safe return of hostages, and to preserve the country’s reputation as a legitimate sovereign state.

By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation, unleashing police brutality and punitive actions against pro-Palestinian activism. It has been totally irresponsible to pretend there is no legal merit to the charges of genocide being leveled against Israel; its behavior at the United Nations has damaged international law and the character of self-righteous liberal democracies.

The ICC prosecutor is also deserving of criticism. There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.

Over time I suspect that the failure to address “genocide” will be regarded as the most shocking weakness in the prosecutor’s formal statement.

At the very least ICC Pros

Why the ICC’s Decision to Recommend Arrest for Israeli and Hamas Leaders Is Historic

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

RICHARD FALK

May 22, 2024Middle East Eye

2

The International Criminal Court this week made the first truly historic move since its establishment in 2002, with its chief prosecutor recommending arrest warrants against two top Israeli officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and three prominent Hamas leaders.

As expected, both sides have denounced this ICC action in the strongest possible language. Because of Western media bias, the angry reactions from Israel and its allies have dominated the news cycle, while the official statement from Hamas has been largely ignored.

While each side chose a similar line of argument, there is a 180° difference in their substantive outlooks.

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide.

Israel’s most fundamental objection to the prosecutor’s action is the supposed equivalence drawn between Hamas, which perpetrated the barbarous attack of October 7, and the democratically elected government of Israel, which says it acted to defend itself and restore the security of its population.

Hamas and its supporters are also appalled at the equivalence implied by the call for arrest warrants, which “equate[s] the victim with the executioner” in the context of an oppressive Israeli occupation that affirms Palestinian legal rights of resistance, including recourse to armed struggle.

In my judgment, the Israeli response is rhetorical and polemical, to the effect that Israel and its leaders can never be accused of criminality in a context shaped by what happened on October 7, identified as the worst attack on the Jewish people since the Holocaust.

Netanyahu called the recommendation for arrest warrants “a moral outrage of historic proportions”—a “travesty of justice” that sets “a dangerous precedent,” interfering with the right of democratic states to defend themselves.

Defense Lacking

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide, as evidenced by growing protests even in the U.S., Israel’s most unwavering supporter.

The crimes and the evidence are delimited in the language of law, and they are certainly of a magnitude and severity to require a good-faith substantive response by Israel. Nothing less can convince world opinion that the ICC prosecutor exceeded his writ by proposing arrest warrants.

It is especially relevant to refer back to the International Court of Justice’s near-unanimous interim order in January as evidence that the charges against Israel’s leaders are hardly a disgrace or a dangerous precedent. That ruling gives firm, if provisional, grounds for believing that Israel’s violence after October 7 constitutes a deplorable instance of sustained genocide targeting the entire civilian population of Gaza.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine.

To a far lesser extent, the same criticism applies to the Hamas response. Although the prosecutor should have addressed the context of a long abusive occupation and victimization in violation of international humanitarian law, this does not confer impunity on such criminal excesses as were committed on October 7.

The call to issue arrest warrants against Hamas leaders is dubious because of the absence to date of an impartial international investigation into what actually happened on October 7, and of evidence that the Hamas leaders—as opposed to other Palestinian resistance entities, such as Islamic Jihad—have been properly singled out.

It should come as no surprise that the U.S. leapt to Israel’s defense, joining in a rather mindless attack on the credibility of this treaty-based global tribunal, which has a mandate to investigate and take action against perpetrators of international crimes.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine. Such double standards exhibit moral hypocrisy and juridical nihilism, with the U.S. invoking international procedures as foreign policy instruments rather than universally applicable norms.

Irrelevant Statement

In a striking phrase that could have come from the Israeli government, U.S. President Joe Biden said on Monday, “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” He backed up this legally irrelevant statement with the categorical assertion that “we will always stand with Israel against threats to its security.”

Again, this is irrelevant. The only question is whether the evidence supports the issuance of arrest warrants. In reiterating such a one-sided stance, Biden is reinforcing the complaints of protesters everywhere that Washington is complicit in the most transparently reported genocide confirmed in real time, and not in retrospect or abstractly, as was the case even with the Holocaust.

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation.

Beneath the smoke of controversy is the fire of a massive campaign of state terrorism that was projected at first as defensive and reactive violence, but quickly showed its true colours as premeditated violence and forced relocation of Palestinians in Gaza, increasingly remote from Israel’s genuine security concerns.

Also forgotten in the controversies of recent months is the context set by the Netanyahu government prior to the Hamas attack. Even in the West, this governing coalition was described as the most extreme in the history of Israel. What made it so was its undisguised effort to initiate a settler-led campaign to make life as unliveable as possible for Palestinians in the occupied West Bank, expressed by a message delivered in various ways to the effect of: “Leave or we will kill you.”

The Israeli government, including extremist cabinet ministers Itamar Ben Gvir and Bezalel Smotrich, green-lit this violence as part of their priority goal of unilaterally establishing Greater Israel, and ending all Palestinian prospects of statehood or any meaningful form of self-determination.

Multiple Failures

In addition, the fact that Israel received advance warning of a planned and rehearsed Hamas attack, possessed elaborate surveillance and informer capabilities, and reacted to the attack with uncharacteristic incompetence, all make it hard to believe that a massive response scenario was not already agreed upon by the Israeli leadership before a single hostage was seized.

When the Israeli retaliation did commence, it was immediately imbued with genocidal tactics and language, including policies to deprive Palestinians in Gaza of food, fuel, electricity, and water. Most revealing were the forced relocations of Palestinians from northern to southern Gaza, the gruesome attacks on hospitals and population centers, the use of starvation as a weapon of war, and the ongoing efforts to induce Egypt and other countries to accept large numbers of Palestinian refugees.

This sustained campaign seems to have become increasingly self-destructive from the perspective of Israeli security. Many Israelis now believe that the Netanyahu leadership is responsible for multiple failures: to destroy Hamas, to achieve the safe return of hostages, and to preserve the country’s reputation as a legitimate sovereign state.

By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation, unleashing police brutality and punitive actions against pro-Palestinian activism. It has been totally irresponsible to pretend there is no legal merit to the charges of genocide being leveled against Israel; its behavior at the United Nations has damaged international law and the character of self-righteous liberal democracies.

The ICC prosecutor is also deserving of criticism. There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.

Over time I suspect that the failure to address “genocide” will be regarded as the most shocking weakness in the prosecutor’s formal statement.

At the very least ICC Prosecutor Karim Khan should have explained why it would have been legally premature to include this most serious and widespread allegation against Israel among the grounds for recommending that the ICC issue arrest warrants for Netanyahu and Gallant. By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

Meanwhile, we should hope that the panel of judges will accept the prosecutors’s recommendation and issue warrants against Israeli and Hamas leaders—while also doing their best to erase the impression of equivalence. If the ICC sticks to its underlying principled position, it will enhance its reputation as a dimension of global governance not tainted by partisan geopolitics.

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Greater Israel, The Maximal Zionist Imaginary, and Gaza Genocide

19 May

[Prefatory Note: The post below is an interview conducted by Daniel Falcone with me and published in Truthout on May 13, 2024. The unabridged interview will be published here after editorial changes and updating.]

Israel Continues Unfettered Colonization of the West Bank Amid Genocide in Gaza

The West Bank has posed the biggest challenge to the Zionist settler movement’s pursuit of a “Greater Israel.”

By

Daniel Falcone , 

TRUTHOUT

Published

May 13, 2024

Amid the genocidal campaign in Gaza, Israel has expanded its settlement project and markedly increased colonial violence and human rights abuses against Palestinians. “Killings are taking place at a level without recent precedent” in the occupied West Bank, according to a report by Human Rights Watch.

In this exclusive interview for Truthout, international relations scholar Richard Falk reminds us of the reality and aims of Israel’s occupation of the West Bank. Falk details the degradation, starvation, human rights abuses, unchecked political power and resource control in the occupied Palestinian territories. He also explains the U.S.’s aims in the West Bank and how they differ from those in Gaza.

Daniel Falcone: With a lot of the attention on Gaza due to the extremity of Israel’s bombing in Rafah, the West Bank is sometimes overlooked in media reports and political discussions about the ongoing Palestinian struggle for survival. How can we understand the differences between Israel’s strategic aims in Gaza and the West Bank?

Richard Falk: The three territories of East Jerusalem, West Bank and the Gaza Strip have experienced rather different conditions of occupation and governance during the 57 years of Israeli control, none of them positive.

The whole of Jerusalem was officially declared by the Knesset in 2019 to be “the eternal capital of the Jewish state of Israel.” Such a unilateral action on Israel’s part was incompatible with international humanitarian law. It also violated the letter and spirit of unanimous UN Security Council Resolution 242, which looked toward the complete withdrawal of Israel’s occupying armed forces in the near-term future with Israeli demands for “minor border adjustments.” It has always been a Palestinian demand and expectation that East Jerusalem would be the capital of any future Palestinian state, and this Palestinian position was generally treated as an integral element of the UN consensus that developed around persisting support for “a two-state solution.”

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WAR & PEACE

Israel Accelerates Violence in West Bank as It Resumes Airstrikes on Gaza

The violence unleashed by Israeli settlers and military against the West Bank makes clear Israel’s genocidal intent.

By

brian bean , 

TRUTHOUT

December 6, 2023

In 1967 Gaza was deemed the third and least important element in the administration of the occupied territories that came under Israel’s control during the war. Its status was viewed ambivalently at first, mainly because it was deemed as remote from the Zionist project, being conceived as not part of “the promised land” that formed the geographic contours of the Zionist vision of a Jewish supremacy state. It also seemed at first to possess little economic promise from Israel’s point of view. Nevertheless, in the period of 1967 to 2005 Gaza was treated by Israel as part of Occupied Palestine, with an intrusive and abusive IDF [Israel Defense Forces] military presence, and the unlawful establishment of Jewish settlements along the Gaza coast. The administration of Gaza was long viewed by Tel Aviv as an economic burden and security challenge for Israel.

The major resistance initiative directed at Israeli occupation known as the First Intifada originated in Gaza in 1987, challenging both Israel and the Palestinian leadership of Yasser Arafat and the coalition of secular Palestinian groups known under the rubric of the PLO [Palestinian Liberation Organization]. In 2005, Israel formally “disengaged” from Gaza, contending that the withdrawal of its armed forces and the dismantling of its settlements relieved Israel of further responsibilities as Occupier in Gaza, with possible future peace solutions consisting of some sort of federated arrangement with Jordan and/or Egypt. This Israeli interpretation of disengagement was rejected by the UN and both Arab states. They considered Israel’s revised approach to Gaza as nothing more substantive than a redeployment of ground forces to just across the Israeli border coupled with the maintenance of total control of Gaza’s air space and offshore water. The approach also included a tight regulation of entry and exit to and from the strip. Despite this gesture of “disengagement” Israel never overcame the perception of Gaza as “the largest open-air prison” in the world, which for many in Gaza, including secular Palestinians, meant growing sympathy with and support for Hamas.

The complex Gaza narrative after disengagement included the unexpected 2006 electoral victory of Hamas, previously listed as a terrorist organization by the U.S. and EU, as well as Israel. Despite Hamas foregoing “armed struggle,” in 2007 Israel imposed a strict and economically punitive blockade of goods and persons seeking to leave or enter Gaza, engaged in periodic major military incursions and put the population on “a diet.” Despite Israel’s repressive moves and military incursions, Hamas put forward long-term ceasefire proposals that were ignored by Tel Aviv and Washington. A creative nonviolent campaign of resistance known as “the Great March of Return” attributed to Palestinian refugees and their descendants, as well as Hamas, was met with deadly Israeli sniper violence in 2018 at the border, including the lethal targeting of well-marked journalists.

Finally, Israel’s provocations and the Hamas-led attack of October 7 set the stage for the latest genocidal phase of Israel’s presence, combining the wrongs of occupation with many crimes of oppression, dehumanization, devastation, starvation, ethnic cleansing and apartheid, culminating in genocide. It seemed that as of 2024, Gaza is strategically and economically far more important to the right-wing Benjamin Netanyahu government and its settler temperament than it was earlier. This is due to the discovery of extensive offshore oil and gas deposits, and a reported interest in a major engineering undertaking that involves the Israeli construction of a Ben Gurion Canaltraversing part of Gazan territory, with the goal of creating an alternative to the Suez Canal. During all the devastation, Donald Trump’s son-in-law, Jared Kushner, obscenely proposed luxury waterfront homes for settlers in a Gaza emptied of Palestinians.

It is against this background that the West Bank has posed the biggest challenge to the pursuit of “Greater Israel,” which was the animating ideal of the settler movement. The settlers were closely allied with the extreme right Religious Zionism coalition partner of the Netanyahu-led government that took over the governance of Israel and the Occupied Palestinian Territories in January 2023. From its first days of governance, it became clear that Israel was preparing to push to completion a maximal version of the Zionist Project. Israeli radicalism along these lines was exhibited by the greenlighting of settler violence on the West Bank that involved a series of inflammatory incidents intended to make the Palestinians feel unsafe and unwelcome in their own homeland. The occupying government in Tel Aviv revealed its orientation through tacitly approving settler violence rather than responsibly acting to protect Palestinian residents. Crimes against West Bank residents, including land seizures, were not only tolerated but applauded by rightist members of Netanyahu’s inner circle.

Of supplemental relevance was the official endorsement of increasing the settlement population in the West Bank by expanding building permits and territorial extensions to settlers and their settlements — already estimated to number 700,000 (500,000 in the West Bank, 200,000 in East Jerusalem). This move to ensure Israeli permanence on the West Bank was combined with the acceleration of diplomacy that focused on forming a de facto alliance with Sunni-dominated Arab countries, especially Saudi Arabia, and the containment and destabilization of Shiite-dominated Iran. Further, Netanyahu’s September 2023 performance at the UN General Assembly in which he arrogantly displayed a map of “the new Middle East” on which Palestine was erased — treated as nonexistent — must have made Palestinian resistance imperative.

These elements are the background context preceding the Hamas-led attack of October 7. The true character of the attack itself needs to be internationally investigated, given the extensive and credible warnings given to the Israeli government, Israel’s ultra-sophisticated surveillance capabilities, and the inflated initial accounts that blamed Hamas for all the most barbaric crimes allegedly committed during the attack. Some of the initial macabre claims of October 7 were later discredited and even modified by Israel. The most suspicious element of the Israeli response was its readiness to embark upon a genocidal campaign, which, while concentrated on Hamas and Gaza, seems also intended to induce a second Nakba with major secondary impacts on the West Bank.

In the months preceding the Hamas-led attack, the West Bank had been the scene of increased settler violence and a heightening of the IDF’s repressive tactics. In the years before October 7, Israel was found guilty of the international crime of apartheid in a series of well-documented reports compiled by objective, expert sources (Special Rapporteurs of the UN Human Rights Council and the Economic and Social Commission for Western Asia, Human Rights Watch, Amnesty International and B’tselem). Liberal democracies and the mainstream media refused to acknowledge this damaging consensus bearing on the legitimacy of Israeli occupation of the West Bank, and instead smeared and blacklisted Israel’s critics.

In addition to the settlements, Palestinian property rights, mobility and security of residence were undermined and threatened in various ways in the West Bank. Palestinian land was further encroached upon at the end of the 20th century by the construction of a separation wall between pre-1967 Israel and the West Bank that expropriated additional Palestine-owned land and divided villages such as Bil’in. Although this mode of constructing the wall on occupied Palestinian territory was found to be illegal by a near unanimous majority of the judges of the International Court of Justice (ICJ) in 2003, Israel defied the findings of the advisory opinion and continued its wall project without deference to international law or international procedures of accountability.

Israel’s rejection of attempts to establish Palestinian statehood with sovereign rights within delimited borders have long concentrated upon the West Bank. This pattern goes back as long ago as 1947, when the UN approved a plan for the partition of Palestine relying on borders derived from the British mandate over Palestine. In the dark shadows cast by the Holocaust, there emerged a UN consensus that the only viable solution for the struggle of the two peoples claiming Palestine as their homeland was to split sovereign rights between two equal states, assumed to be named Israel and Palestine.

Distinguished commentators from both peoples opposed such a territorial division for a variety of reasons, well summarized from a Jewish perspective in Shaul Magid’s The Necessity of Exile and from a Palestinian perspective in the later writings of Edward Said.

Always the central question, even if often left implicit, was the destiny of the West Bank and its residents, as well as whether Palestinian “security” would be restricted by demilitarization and dependence on Israeli forbearance in the two-state models, and whether the Zionist commitment to a Jewish supremacist state could be accommodated or needed to be modified in the one-state models.

What are the U.S. goals in the West Bank and how do they differ from its Gaza policy?

The U.S. has a strong reputational interest in retaining the identity of the West Bank as Occupied Palestinian Territory. If Israel extends its sovereignty over the West Bank, which it has long claimed should be classified as “disputed territory” rather than “occupied territory,” it would bring to a screeching halt any further pretense by the U.S. government to be serious about the advocacy of a “two-state solution.”

Trump’s proposed “deal of the century” contained a nominal Palestinian mini state to sustain the illusion that the interests of both peoples were being considered, but it failed to fool any true two-state advocates.

American credibility as an “honest broker” in the Oslo Peace Process, and elsewhere, was greatly eroded by its acquiescence in the establishment of Israeli settlements in the West Bank despite their patent illegality and negative impacts on a meaningful political compromise on the final territorial allocation between the two peoples. The U.S.’s mild reaction to settlement expansion was limited to the muffled whisper that such behavior “was not helpful.”

By now, given the bipartisan U.S. endorsement of Israel’s genocide in Gaza and its repeated use of the veto to block a meaningful ceasefire directive and a widely supported initiative to treat Palestine as a full member of the UN, I believe that the U.S. could not any longer put itself forward as a trustworthy intermediary in any future bilateral negotiating process. It would overtly become Israel’s international sword and shield, exhibiting its extreme partisanship while falsely claiming adherence to international law and diplomatic balance.

With regard to the differing interests of the U.S. in the West Bank and Gaza, it comes down to two issues: first, supporting Israel’s right to defend itself in Gaza, while maintaining Israel’s legitimacy as an occupying power in the West Bank and insulating its violations of international humanitarian law from UN censure, boycotts and sanctions; and secondly, recognizing that the West Bank is the integral core of a Palestinian state.


How does Israel complicate the work on the ground by scholars, activists and elected officials? The fact that the two regions are separate seems to make the problem even more insurmountable. 

The differing character of Israel’s approaches to the two areas creates many complications for those who seek normal operating conditions. Gaza is considered by Tel Aviv to be administered by Hamas, a terrorist entity in its view, whereas the West Bank is co-administered with the quasi-collaborationist Palestinian Authority to ensure that resistance activities are minimized. Even peaceful forms of resistance face harsh punishment, and since Israel came under more extremist leadership, the conditions of daily life have become so unpleasant and dangerous that Palestinians may be forced to leave for neighboring countries, and accept the loss of their homeland, becoming refugees or exiles.

Until recently the balance of opinion in Israel was wary about any Israeli state that purported to include Gaza. This wariness was associated with Israeli concerns about an emergent “demographic bomb” accompanying any attempt to absorb an additional 2.3 or 2.4 million Palestinians into Greater Israel.

In the West Bank, Israel was nervous about the effect of civil society activism, and even scholarly work, generating unfavorable international publicity as to the nature of such a prolonged occupation. The Israeli occupation is currently being challenged at the ICJ following a General Assembly request to legally assess the continued validity of Israel’s administrative role. This follows years without an implementation of the withdrawal envisioned by UN Security Council Resolution 242 and numerous flagrant continuing violations of international humanitarian law.

Even prior to the present Netanyahu government, Defense Minister Benny Gantz issued decrees in 2021 banning the activities of respected West Bank NGOs and deeming them “terrorist organizations.” Elected Palestinian leaders have been harassed and imprisoned despite Israel’s collaboration on security and administrative funding over the years with the Palestinian Authority, which is distrusted by a growing number of Palestinians inside and outside of the Occupied Territories.

What is the role of the West Bank in President Joe Biden’s foreign policy? 

The West Bank is an indispensable component of Biden’s continued advocacy of a two-state solution. This advocacy was always half-hearted and never a persuasive expression of genuine U.S. policy intentions. The two-state mantra seems more and more like a public relations posture to satisfy world public opinion as time passes. If it had been a genuine goal, Biden would have challenged Israeli moves of recent years, which became more pronounced since the Netanyahu coalition took over in 2023. It was an open secret that this extremist coalition was committed to the unilateral completion of the Zionist Project by establishing Greater Israel in the shortest possible time even if it required brute force to get the job done. Extending Israeli sovereignty to the West Bank would have the consequence of making continued adherence to two-state advocacy a sign of geopolitical ignorance, so out of touch with the geographic contours of Palestinian statehood as to be in the category of a bad joke.

A viable Palestinian state presupposes full sovereign rights over the West Bank, which must include territorial governance and the dismantlement of the settlements. Neither seems likely to happen if Zionist ideology continues to shape the policy of the Israeli state. It would be awkward for Biden to be asked what kind of Palestinian state does the U.S. favor. He likely would be inclined to answer evasively by saying that “it is up to the parties.” But if he was forthright, it would probably look like a permanently demilitarized Palestinian state with settlements governed according to Israeli law and exempted from territorial regulation. Such a Palestinian state might meet the formal requirements of statehood, but it would be a nonstarter for many Palestinians, who continue to insist on their inalienable right of self-determination. The long Palestinian ordeal, stretching over the course of more than a century, would not be ended by the willingness of Israel to allow the formation of a puppet state.

Can the ICC Finally Gain Credibility

13 May

[Prefatory Note: A quite different version of this opinion piece was published in Middle East Eye on May 7, 2024. Nothing substantive has happened in the intervening weeks, but I wanted to call more explicit attention to the crude efforts by Netanyahu to call openly for the exertion of pressure on the ICC by the United States and other ‘democracies,’ seeking to induce the ICC rejection of this Global South attempt to criminalize Israel’s use of force, purporting to a defensive operation justifiably seeking the destruction of Hamas and the release of hostages seized in the Hamas attack on October 7. Neither apologists nor critics have yet acknowledged the possibility that the genocidal fury of Israel’s response was partly motivated by the Greater Israel vision of the extremist coalition government headed by Netanyahu that has been governing Israel since the start of 2023, or more than nine months before the Hamas attack. This construction of the events does not seem to alter its criminal character one way or the other, but it does affect its political and moral interpretation, thereby helping us understand why Israel embarked on such an alienating course of action ignoring several alternatives if restored security was truly its dominated motivation.]

Taking the ICC Seriously: Who Would Have Thought Netanyahu Would Lead the Way

A Shaky Start for the ICC

Since its establishment in 2002 the International Criminal Court has struggled to find a path to legitimacy. Its establishment was a triumph for the Global South in extending the potential reach of international criminal law, although it was limited from the outset by its existence being situated outside the formal UN framework and by the failure of the geopolitical ‘big three’ of the US, China, and Russia to join, and in relation to present concerns, by Israel’s refusal. The ICC does have 124 members including the liberal democracies in Western Europe, all states in South America, most in Africa, and  many in Asia. Despite this wide representation it has struggled throughout its existence for recognition, influence, respect, and legitimacy.

In its early years it was blamed for focusing its activities on the alleged wrongdoing of sub-Saharan African leaders, suggesting a racialist bias. Then later on, in relation to US and Israel’s alleged crimes in Afghanistan and Occupied Palestine, the ICC prosecutor sat on the files containing abundant evidence justifying at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted, and by doing nothing, an impression formed that the ICC was so weak that it could not hope to resist geopolitical, Western backdoor manipulations. ICC inaction in this instance was partly attributed to the radical ultra-nationalism of the Trump presidency that had the temerity to impose personalized sanction on the prosecutor of the ICC should the tribunal open a case against either the US or Israel.

The story goes on, but with new twists. When Russia attacked Ukraine in early 2022, the ICJ was called upon by the NATO West to act with unaccustomed haste. It obliged by expediting its procedures to move forward on an emergency basis a determination as to whether Putin and others should be immediately indictment for war crimes. This unusual request for haste again appeared to serve the interests of the West, again somewhat racialized by the fact that ICC activism was on behalf of a white, Christian victim of alleged war crimes, and had never before been so enlisted. The ICC obliged, including issuing arrest warrants for Putin and a close assistant, confirming the suspicion that it could be bullied by even non-parties to the Rome Statute that state adhered to if seeking status as parties. Such haste with respect to Russia has not evident with regard to the far greater urgency, given the magnitude and severity of the unfolding humanitarian catastrophe in Gaza in the context of controversial happenings during the last several months. To date the ICC has withheld a response to the legal initiative of Chile and Mexico to enforce the Genocide Convention on the Prevention and Punishment of the Crime of Genocide.

These governments were seeking an ICC investigation and appropriate responses to Israel’s apparent gross violations of the Genocide Convention committed in the course of carrying out its retaliatory attack on Gaza after October 7. Israel’s disproportionate response seemed designed from its outset to ignore the civilian innocence of the Palestinian people in Gaza in a prolonged orgy of collective punishment, itself a violation of Article 33 of the 4th Geneva Convention.  This difference between the ICC response times in relation to Ukraine and Gaza reinforced the impression of double standards in the tribunal’s treatment of allegations of international crimes. In this instance, it was inevitable that the ICC politicized reputation would be contrasted with the laudable efforts of ICJ to do what it could do by way of declaring the relevant law, although hampered by its inability to coerce compliance by Israel or enforcement by the UN.

The ICJ and ICC: A Performative Comparison

Against this background, it was inevitable that the ICC would be widely viewed as a weak institution, above all by not initially obtaining participation or cooperation of such important states as the US, Russia, China, and of course, Israel. In this regard, the ICC was most unfavorably compared to the International Court of Justice (ICJ) to which all members of the UN were automatically parties. The ICJ was widely respect for maintaining a high degree of professionalism in assessing the merits of legal disputes referred to it for adjudication, consistently cautious about encroaching upon sovereign rights of international states.

This positive reputation of the ICJ was greatly enhanced by its near unanimous Interim Orders of January and March 2024 granting several Provisional Measures requested by South Africa to impede Israel’s behavior that seemed to lay a plausible basis for concluding that Israel would in the future be found guilty of ‘genocide’ in Gaza. Israel was also legally ordered to allow humanitarian aid to reach Palestinian civilians without interference given the emergency conditions that existed. Such order would apply at least until a final judgment on the merits of the genocide contention was reached by the ICJ after responding to further oral and written pleadings by the parties. This process was expected to last for several years, reducing the existential relevance of the ICJ judgment as the killing would have stopped long before the Court had time to rule. The decision would still have jurisprudential value as an authoritative interpretation of the crime of genocide despite geopolitical support given to Israel by important UN Member States. A belated ICJ judgment  might also be widely welcomed internationally as giving rise to preventive and early response mechanisms in anticipation of future genocides.  

Despite the cautious legal professionalism of the ICJ a nearly unanimous panel of the seventeen judges found Israel sufficiently responsible for action that made it ‘plausible’ to fear genocide sufficiently to grant Provisional Measures in response to South Africa’s request. [Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel, ICJ Orders, 192, 20240126 & 192 20240328, ProvMeasures)]; [see also the less jurisprudentially inhibited systematic assessment of Special Rapporteur on Occupied Palestine for the UN Human Rights Council, Francesca Albanese, ‘Anatomy of a Genocide,’ A/HRC/55/73, 25 March 2024].

These orders legally required Israel to take a variety of steps to stop engaging in what was plausibly viewed by the ICJ as genocidal behavior including interference with efforts to deliver food and medicine to starving and desperate Palestinians huddled together in dangerously crowded collective misery throughout Gaza, and not only in the small city of Rafah on the Egyptian border. The prospect of bloody extensions of genocide continue at this point to be daily pledged by Israeli leaders poised to attack Rafah and put the finishing touches on an assault defiantly directed against the moral sensibilities of humanity as well as the life prospects of Palestinians. In the process of proceeding with its Rafah attack, Israel so far more openly refused US overt and covert pressures than did the ICC, which in the past and perhaps will again in the present bend to the will of the Global West.

A Redemptive Moment for the ICC?

If asked even a week ago, I would have said that Bibi Netanyahu would have been the very last person on the planet to come to the institutional rescue of the ICC, although in indirectly doing so he chose a backhanded way. Netanyahu leaped to denounce the ICC after leaked rumors suggested that the Court was on the verge of issuing arrest warrants naming Netanyahu, the Minister of Defense, Yoav Gallant, and Army Chief of Staff Herzl Halevi. Somehow this prospect so disturbed Netanyahu that he chose to go on the offensive in advance of any formal action. His five-minute video tirade against the ICC is worth watching by everyone—

 https://x.com/netanyahu/status/1785362914519519597?s  1-–if only to get a sense of just how potentially formidable the ICC might become if it performs as it should. If it takes Netanyahu to shame the ICC into finally doing its job, so be it.

At the same time Netanyahu’s gross distortions of what was happening in Gaza were extreme enough to provide valuable material to late night TV humorists if their purpose was to whitewash over six months of unprecedented humanitarian catastrophe imperiling the survival of the long much abused civilian population of Gaza.  Israeli behavior is so macabre as to beyond the realm of good-natured, apolitical comedy, or even political satire. It offer more of an occasion for weeping and mourning the lost and ravaged lives, and devasted cities, hospitals, places of worship, schools, and UN facilities.

It is within this setting that the ICC seems to have been given an opportunity to act finally in accordance with its mandate, redeem its reputation for spinelessness, and strike a symbolic blow in the increasingly worldwide struggle to stop Israel’s genocide in Gaza. It is technically possible and undoubtedly politically tempting for the prosecutor to disappoint these expectations by limiting ICC action against Israeli and Hamas leaders to their alleged pre-October 7 crimes. Such an evasion would be within scope of the 2015 initiative of Palestine, a party to the Rome Statute, which was initiated in such a manner that any crime after 2014 was potentially indictable. Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire followed by a series of restorative acts that could include redress, reparations, accountability, and reconstruction punitive directives.

We are left with the puzzle of why Israel’s reaction to the ICC, in view of its low institutional esteem, was seen as so much more threatening to the Israeli leadership than the more focused directives of the far more established ICJ. Could it be that the criminal character of the ICC and the personal nature of arrest warrants pose more of a threat than the prospect of a mere legal ruling? It is of course relevant to note that the ICJ is not a criminal tribunal and possesses authority only to assess legal disputes between sovereign states and to give legal ‘advice’ in response to requests by organs of the UN.

Netanyahu phrased his key argument against the arrest warrants as posing a mortal threat to the right of democracies to defend themselves against their terrorist enemies, whether regime or non-state actor, singling out Iran.  Such a view, reverses the perceptions of peoples throughout the world excepting those governments and right-wing elements that support Israel in the Global West and the hardest core overseas Zionist zealots. Increasingly, even in the strongholds of Zionist influence, softer versions of Zionism and more independent Jewish voices are siding with the pro-Palestine protesters, reacting against the stark reality of genocide.

A Concluding Remark

We should all know by now that Israel has no intention of complying with international law no matter what the source of authority. In this sense, the importance of the ICJ and potentially, the ICC, is to strengthen the growing tide of pro-Palestinian sentiment around the world, and an emerging consensus to strengthen civil society solidarity initiatives of the kind that contributed to the American defeat in Vietnam despite total battlefield military superiority and that later doomed the South African apartheid regime. In this regard, the utterances of the most influential international institutions entrusted with interpreting international law have more of a behavioral impact in high profile political situations such as exist in Gaza, than does do either the ICJ or ICC, and for that matter, than even the UNSC. Governments may defy legal authority, while civil society is mobilized to implement its conclusions if they seem to reinforce moral and political convictions.

Once again if the Palestine people ever do finally realize their basic rights, it will be thanks to the resistance of those victimized as reinforced by the civil society activism of people everywhere.  It may be in launching his vitriolic attack on the ICC, Netanyahu was subconsciously delivering a mendacious sermon to the aroused peoples of the world who are refusing to heed such self-serving hyperbole. 

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Governing Gaza After Genocide

4 May

[Prefatory Note: Responses to questions posed to Richard Falk by Rodrigo Craveiro of CORREIO BRAZILIENSE on May 4, 2024 as yet unpublished.].


1–Israeli officials are weighing sharing power with Arab states in postwar Gaza. How do you see that? And would you say Palestinians would accept such format?

Such a format seems like nothing more than a cover for continued Israeli governance of Gaza. The governments of Egypt, Saudi Arabia, and the UAE are more opposed to Hamas (and Iran) than to Israel, fearful of their own stability in relation to populist Islamic actors. This reality is reinforced by the fact that the majority Arab populations in these three countries are strongly in support of the Palestinian struggle for basic rights, and totally opposed to Israel’s reliance on genocidal tactics in Gaza since October 7.

The Palestinians who are represent the forces of resistance to continuing Israel occupation have been strengthened by the post-Octobe 7 Israeli retaliatory campaign and would certainly not accept such a format except under the most extreme coercion, such as possiblly to avert a murderous attack on the crowded city of Rafah now sheltering over a million Palestinians under horrifying conditions. Even though collaborationist Palestinian elements centered in Ramallah mighta be tempted by such a format if given a renewed role in the governance of Gaza. Any such arrangement if accepted in the present context would give rise to a tidal wave of violent resistance on the part of many Palestinians.

2–  Israel would offer to share oversight of the Gaza with an alliance of Arab countries, including Egypt, Saudi Arabia and the United Arab Emirates, as well as the United States. How do you see that?

As indicated above, I see this kind of proposal as a non-starter unless coupled with a clear path to Palestinian statehood encompassing the West Bank and Gaza, with its capital in East Jerusalem. And even then, the Palestinian state would be accepted by legitimate representatives of the Palestinian people only if reliably assured of equal sovereign rights to those of Israel and reparations and other funding sufficient to rebuild devastated Gaza. An abridged Palestinian state by way settler enclaves, diminished territory, demilitarized security, and borders monitored by Israel would not be acceptable, and if accepted out of desperation, would not be long viewed as legitimate by Palestinians, giving rise to renewed struggles to overcome such constraints on sovereignty.

3– And how do you analyze this spreading of pro palestinian protests throughout US and now in Paris? What will be impact of that?

The outbreak of widespread protests in favor of the Palestinian struggle exhibit growing frustration with the complicity of the US Government with what a large proportion of younger Americans believe is a case of clear Israeli genocide, and with obstructive efforts at the UN led by the USG to protect Israel from ceasefire demands and non-interference with humanitarian aid given the emergency conditions that are perceived as prevailing in Gaza. The protests are long deferred reactions to the frustrations generated by Congress and the White House, especially their refusal to support international law and the UN, as well as simple morality In response to the transparent portrayal of genocide in real time. All prior genocides, including the Holocaust, have been known and knowable only in retrospect through reports, trials, films, and memoirs. The Gaza genocide has been daily confirmed by TV imagery and reportage areas of devastation and sites of atrocities.

There are likely to be impacts of the protests acknowledged and unacknowledged the extent of which is presently uncertain. Already there is widespread speculation that the protests and their repression has gravely weakened Biden’s prospects for reelection and make Trump the favorite in November. Biden has repeatedly declared that he will not change policy toward Israel, and the recent approval of additional military assistance by a one-sided bipartisan vote in the U.S. Congress suggests that there will not be in the short-run a dramatic shift in Washington’s pro-Israel orientation. This could change rather abruptly if Israel goes ahead with its planned repeatedly pledged military operation in Rafah, which if it occurs might well result in massive Palestinians casualties.

An important variable concerns whether the current protests, and their suppression, will produce a sustained movement of opposition and reform or wither away. The present flurry of campus activism could quickly disappear if the events in Gaza are somehow brought under stable non-violent control. Although there may be present a latent revolutionary impulse to challenge the plutocratic and militarist erosion of Americann democracy before it is too late.

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Palestine, Iran, and Populist Resistance: The Limits of Law, Morality, and the UN

3 May

[Prefatory Note: An interview with the Qods News Agency (Qodsna), the first specialized news agency in Iran, focusing on issues related to the Palestinian cause. The interview was published a week ago in Iran, and is reprinted in modified form that seeks to take account of the Palestinian struggle as connected with wider regional and global conflict patterns, and is giving rise to worldwidestudent protests against genocide and complicity with genocide, as well as a tidal wave of global consciousness sweeping away the cobwebs of political and moral complacency.]

  1. Given the fact that Israel has killed over 34,000 Palestinians in Gaza, mostly women and children, and prevented the entry of international humanitarian aid into the besieged strip, what is your opinion on nearly 200 days of onslaught in Gaza and its aftermath on Palestinians’ lives? How do you describe the genocidal onslaught and war crimes in Gaza?

What has taken place over the last 200 days in Gaza is the most transparent genocide in all of human history. It is the first time that the daily atrocities were broadcast and seen by the peoples of the world in real time. Past genocides have been known almost totally in retrospect through official reports, films and memoirs, which reconstruct horrifying events but after a passage of time. Those Palestinians who managed to survive physically such sustained violence of this extreme character are reported to be suffering from mental disabilities that could persist for their entire life. It is a tragic, dehumanizing ordeal, above all for children. It is further shocking that Israel should remain insulated from denunciation and accountability despite its continuing practice of such extreme criminality.

Genocide should be understood to exist from three quite distinct moral, political, and legal perspectives. The moral perspective is made clear in Gaza by the declared intentions, policies, and practices of Israel’s highest leaders, and carried out in a totally disproportionate, indiscriminate, and lawless manner, and aggravated by consistently sadistic and demeaning treatment of Palestinian civilians who fall under the control of the Israeli armed forces. The political perspective is established in Gaza by numerous trustworthy witnesses and victims, as well as by vivid visual evidence of genocide in line of justifications adopted by Israel and its supporters. Yet the political assurances about the commission of genocide is vulnerable, as here, to the be overridden by geopolitical considerations and strategic calculations. The legal perspective relies on the presentation of evidence and interpretations of international law, above all by the delineation of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Provisional conclusions as to international law can be derived from the opinions of legal experts holding important professional positions. For instance, the current UN Human Rights Council Special Rapporteur for Occupied Palestine, Francesca Albanese issued an excellent report in March 25, 2024 entitled ‘Anatomy of a Genocide’ [A/HRC/55/73]that carefully analyzed the elements of the crime and concluded that the facts and law supported the allegation of genocide. And yet until a qualified national or international tribunal with jurisdictional authority to assess the charge of genocide examines the evidence and hears the arguments of the defendant government or political actor it is impossible to say with technical propriety that the behavior in question is genocide from a legal perspective.

2-How can the world public put pressure on governments to force Israel to stop atrocities in Gaza?

It has proven difficult to challenge Israel effectively at the UN and elsewhere. Powerful countries in the Global West are complicit in supporting Israel’s policies and practices, including Israel’s misleading claim that it possesses an unlimited right to defend itself in response to the Hamas attack of October 7. The liberal democracies of Western Europe and North America are prominent among governments lending varieties of support to Israel that extends to endorsing Israel’s gross distortions of facts and law, which has had a detrimental effect on the authority of international law and the UN. The US above all has been guilty of double standards, using international law as a policy instrument to attack its adversaries such as Russia and China and disregarding its relevance with respect to the behavior of allies and friends such as Israel, Saudi Arabia, and India.

It is important to also understand the more passive complicity of Israel’s main Sunni Arab neighbors that fear challenges from Hamas-type Islamic movements more than intrusions on their autocratic stability associated with the establishment of Israel or post-colonial intrusions by Western powers. It was a surprise to many in the West that the governments of Jordan and Saudi Arabia cooperated in defending Israel on April 13 against the Iranian retaliation for Israel’s April 1st attack on its Syrian consular facility, killing two of its top military advisors. This pattern of regime politics in the Arab world does not reflect the outlook of the population in these countries, which shares a strong affinity with the Palestinian struggle and is often oriented with Islamic leadership of populist, protest Arab politics as was evident during and after the Arab Spring.

South Africa has been applauded widely for taking the initiative to bring allegations of genocide to the International Court of Justice under Article XI of the Genocide Convention that legally empowers any party to the treaty to bring a dispute with another party before the ICJ. Although the ICJ rose above politics by rendering an historically important, near unanimous interim decision granting several of South Africa’s requests for Provisional Measures on January 26, 2024. Unfortunately, this preliminary ICJ order had little behavioral effect as Israel defied the interim obligatory adjustments in Gaza pending a subsequent decision on whether the allegation of genocide has been legally established after fully weighing pro and con arguments.

Israeli defiance and US dismissive attitude toward the authority of the ICJ given its view of Israeli violence in Gaza fully exposed ‘a UN crisis of implementation’ of great significance. Given Israel’s refusal to comply meant that any effort to enforce the ICJ Interim Orders would depend on action by the Security Council, which would almost certainly be vetoed by the United States. Additionally, an ICJ decision on the merits with respect to genocide must await comprehensive oral arguments and written pleadings, as well as the time needed by the judges to do their own inquiries, a legal process that would not be completed for several years, which would likely be after present emergency conditions in Gaza had been resolved for better or worse.

Nevertheless, the ICJ Interim Order was an impressive vindication of international law and a legitimating demonstration of the legal professionalism and political independence of the Court. It has also had an authenticating impact on the governments of the Global South and even more worldwide in relation to civil society, including even in the United States and other complicit countries where the surge of student pro-Palestinian protest activism cannot be wholly disconnected from the authoritative findings of the ICJ disregard in policy by Washington almost as much as by Tel Aviv. Whether this pressure will remain robust enough to result in coercive actions by way of boycotts and sanctions, and pariah status, remains to be seen, but at minimum it suggests that even in this unfavorable political setting international law and populist activism offer some hope that genocide can be stopped and its perpetrators held accountable, if not formally, then by the action of peoples around the world.   

3-What do you think about Palestinian resistance fighters’ right to initiate the October 7 operation against Israel?

The right of resistance on the part of a people long occupied and abused is well established. Prior to October 7, Israel’s commission of the crime of apartheid in its manner of governing the Occupied Territories and the Palestinian minority in Israel had been documented in detailed reports by several of the most respected human rights NGOs including Human Rights Watch and Amnesty International, as well as by the Israeli NGO, B’tselem, and by UN’s ESCWA.

While the right to resist is certainly justified by the conditions imposed over the long period of occupation, which featured Israeli failure to uphold its duty as Occupying Power to protect Palestinian civilians under its control, it does not confer unlimited rights of resistance. Tactics of resistance, as for other armed groups including those operating under the authority of a sovereign state, are obliged to comply with international criminal law, and not abuse or target civilians, impose collective punishment, and commit atrocities. Yet unlike the apartheid and genocide allegations against Israel, there is as yet no authoritative account of what happened on October 7. There were, at first, luridly exaggerated claims of barbarous behavior reported to the world by Israel, but later modified by retractions and much skepticism about Israel’s depiction of events on that day. Until an international factfinding commission is established and given full cooperation there will be doubt about the extent to which the criminality of the Hamas attack tainted its resistance claims, and the degree to which Israel itself was negligent about heeding warnings and otherwise responsible for the lapse of border security.

4-How can the Palestinian people achieve their rights and overcome the ongoing occupation?

The Palestinian people are winning the struggle for public support in civil society and among many governments in the Global South. The rise of popular support for Palestinian rights even in complicit governments may erode somewhat their willingness to continue normal relations with Israel. Whether this political post-Gaza reappraisal is enough at this stage to make a difference with regard to ending Israeli occupation is not clear at present. Prior anti-settler colonial struggles have been eventually won by a colonized people if they manage to survive the almost inevitable genocidal assault by settlers to their existence. The breakaway British colonies in North America, Australia, and New Zealand managed through genocidal tactics to marginalize or eliminate the resistance of native and indigenous peoples and complete their settler colonial projects; South Africa failed, and the project collapsed. Israel is in that space where it will either join the settler colonial ‘success’ stories or it will succumb to national resistance, with Jews either giving up the Jewish supremacy claims of Zionism or finding a means to coexist with Palestinians on the basis of true equality and mutual respect, presupposing a honest accounting of the past as with some sort of truth and reconciliation process that has smoothed a transition from repressiveness to constitutionalism. The best example of managing such a transition was South Africa, benefitting from the leadership of Nelson Mandela and Archbishop Desmond Tutu, yet also experiencing bumps in the road along the way. Its pro-Palestinian ICJ initiative was a symbolically important way of honoring the enduring legacy of Mandela’s anti-apartheid struggle.

5-As you know, Israel attacked Iran’s consulate, killing its military advisors in Syria which is considered contrary to international conventions, which prompted a military response by the country. What is your take on Iran’s punitive response to Israel, especially in terms of international laws?

The Iranian retaliatory strike against Israel caused neither deaths nor damage, although had its array of missiles and large number of drones not been destroyed, it might have had a war-generating disproportionate effect. The interpretation of Iran’s retaliation remains ambiguous. Did it intend to display its military capabilities to attack Israel directly without inflicting major damage or was it an operational failure in the sense that the intention was to be as destructive as possible. Without clarity on this question, it is impossible to make an intelligent assessment of the relevance of international law to the events of April 13th.

The legal status of retaliatory violence is a gray area of conflicting opinions among law experts, often colored by political identities and jurisprudential orientations. On the one side are legalists who suggest that all retaliations violate the UN Charter and international law by validating uses of international force only in situations of a sustained armed attack across an international border. By this reading even a modest retaliation against the Damascus attack was not lawful.

As with other issues, this strict reading of international law is not descriptive of international practice with respect to acts of retaliation, which in practice over the years validate ‘reasonable’ retaliations so long as proportionate in relation to the provocation. Israel’s second attack on Iran, however, would seem to be unlawful as it ignored the reality that it initiating the cycle of violence on April 1st by its lethal attack on Iran’s consular facility in Damascus, and to regard it as entitled by any standard of law or reasonableness would tend to continue the cycle of interactive violence indefinitely.

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