Investigating Israeli Criminality at the International Criminal Court (ICC)
[Prefatory Note: What is posted below is an Amicus Brief submitted to the International Criminal Court in The Hague on 16 March 2020 in the jurisdictional phase of a proceeding in which to initiate such a legal proceeding and whether the ICC has jurisdiction, that is, legal authority to investigate and possibly prosecute such alleged. As the Prosecutor indicated, the facts at her disposal indicate a basis for accepting Palestine’s request forPearce an investigation of alleged Israeli criminal conduct on three clusters of issues: (1) military operations in Gaza in 2014, (2) unlawful aspects of Israeli settlements, aand (3) use of excessive force against protesters at the Gaza border in The Great March of Return. The focus of this procedural phase is whether Palestine is ‘a State’ in relation also suggest evidence of criminal behavior by Hamas that she believes within her jurisdictional orbit. The ICC has deferred further proceedings in view of the COVIS-19 pandemic, which has led to protests from concerned NGO groups and activists. The brief was prepared with major research assistance from Pearce Clancy and Susan Power of Al Haq for which I am extremely grateful. In the background is the undisguised and bitter hostility of the Government of Israel and its political leaders to Palestine for seeking an international assessment of their contention of Israeli criminality almost as if a legal challenge to Israeli impunity is itself immoral. The United States vents its fury and threats in an analogous manner at the ICC because it had the temerity to agree to investigate charges of U.S, war crimes in Afghanistan. There will be no global rule of law so long as geopolitical actors are made the beneficiaries of double standards in the application and implementation of international law. Earlier the ICC was almost solely preoccupied with allegations involving Africa, and there was an understandable African complaint that its countries were being singled out, while criminality of the West was not even investigated. While this turn by the ICC angering Israel and the United States delegitimizes the ICC for the hegemonic West, it lends the ICC much needed legitimacy among many non-Western States and most human rights NGOs.]
Original: English
No.: ICC-01/18
Date: 16 March 2020
Before:
Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou
SITUATION IN THE STATE OF PALESTINE
Professor Richard Falk
PRE-TRIAL CHAMBER I
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Public
Amicus Curiae Submissions Pursuant to Rule 103
Source:
No. ICC-01/18 1/29 16 March 2020
Document to be notified in accordance with regulation 31 of the Regulations of the Court to:
The Office of the Prosecutor
Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor
Legal Representatives of the Victims
Unrepresented Victims
The Office of Public Counsel for Victims
Paolina Massida
States’ Representatives
The competent authorities of the State of Palestine
REGISTRY
Counsel for the Defence
Legal Representatives of the Applicants
Unrepresented Applicants (Participation/Reparation)
The Office of Public Counsel for the Defence
Amicus Curiae
Professor John Quigley
Guernica 37 International Justice Chambers
The European Centre for Law and Justice
Professor Hatem Bazian
The Touro Institute on Human Rights and the Holocaust
The Czech Republic
The Israel Bar Association
Professor Richard Falk
The Organization of Islamic Cooperation
The Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs
MyAQSA Foundation
Professor Eyal Benvenisti
The Federal Republic of Germany Australia
UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
The Palestinian Bar Association
Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond- Barak, Prof.
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16 March 2020
Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker The International Association of Jewish Lawyers and Jurists
Professor Asem Khalil and Assistant Professor Halla Shoaibi
Shurat Hadin – Israel Law Center Todd F. Buchwald and Stephen J. Rapp
Intellectum Scientific Society
The International Commission of Jurists
Dr. Robert Heinsch and Dr. Giulia Pinzauti
The Republic of Austria
The International Association of Democratic Lawyers
The Office of Public Counsel for the Defence
The Honourable Professor Robert Badinter, the Honourable Professor Irwin Cotler, Professor David Crane, Professor Jean-François Gaudreault- DesBiens, Lord David Pannick and Professor Guglielmo Verdirame
The Palestinian Center for Human Rights, Al-Haq Law in the Service of Mankind, Al- Mezan Center for Human Rights and Aldameer Association for Human Rights
The Federative Republic of Brazil Professor Malcolm N Shaw
Hungary
Ambassador Dennis Ross
The International Federation for Human Rights, No Peace Without Justice, Women’s Initiatives for Gender Justice and REDRESS Professor William Schabas International-Lawyers.org
The League of Arab States
Me Yael Vias Gvirsman
The Popular Conference for Palestinians Abroad
The Israel Forever Foundation
Dr. Frank Romano
Dr. Uri Weiss
The Republic of Uganda
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16 March 2020
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Registrar Counsel Support Section
Peter Lewis
Victims and Witnesses Unit Detention Section
Victims Participation and Reparations Other Section
Philipp Ambach
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- Introduction
- Following the submission of an application for leave to submit as part of the present proceedings,1 and its subsequent acceptance by this Chamber,2 this amicus curiae submission will address the question directed to the Chamber, namely that of the territorial jurisdiction of the Court in a future investigation into the Situation in Palestine.3
- Mindful of the fact that a pronouncement by the Chamber on the question of jurisdiction at this stage is controversial,4 this amicus argues that should a ruling be made at this stage, it must recognise the jurisdiction of the State of Palestine as pertaining to the entirety of the occupied Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip. The legal argument will be presented in two stages. Section II will deal with the underlying question of Palestinian statehood under international law, noted as a prerequisite for invoking the jurisdiction of this Court by the State of Palestine, arguing that the Court should be satisfied that Palestine’s status as a State for the purposes of the Court’s statutory framework allows exercise of such authority, and that the principles of interpretation by which the Court operates mandates such a conclusion. Section III will regard the question of statehood as resolved, and address the territorial jurisdiction of each component of
1 Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence (13 February 2020) ICC-01/18-24.
2 ICC, Decision on Applications for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence (20 February 2020) ICC-01/18, para 55, 56.
3 See ICC, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (22 January 2020) ICC-1/18-12 (henceforth the “Request”) at para 220.
4 ICC, Request Under Regulation 46(3) of the Regulations of the Court: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (6 September 2018) ICC-RoC46(3)-01/18, para 27; ICC, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut (6 September 2018) ICC- RoC46(3)-01/18-37-Anx; see, however, Anthony Abato, ‘False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC (9 March 2020), available at: https://www.ejiltalk.org/false- positives-false-negatives-and-prosecutorial-discretion-regarding-the-jurisdiction-of-the-icc/: “When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.”
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occupied Palestinian territory, arguing that the Court’s jurisdiction extends to the West Bank, East Jerusalem, and the Gaza Strip.
- The Issue of Statehood
- While recognising the scope set by the Pre-Trial Chamber (PTC) within which amici curiae have been requested to abide, I concur with the recognition by the Prosecutor that the Court’s territorial jurisdiction over the territory belonging to the State of Palestine is contingent upon the legitimacy of that State’s claim to statehood.5 Accordingly, and as outlined in the Request for Leave pursuant to Rule 103 of the Rules of Procedure and Evidence,6 this section will provide a brief analysis of the question of Palestinian statehood within the framework of the Rome Statute.7
- It is submitted that as a matter of substantive international law, Palestinian statehood has been resolved. While not indicative of statehood in and of itself,8 the recognition thereof by the United Nations (UN) General Assembly in Resolution 67/19 of 4 December 20129 is indicative of widespread academic opinion and State practice.10 Also highly relevant, the
5 Request at para 7; see also Article 12, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (henceforth the “Rome Statute”).
6 ICC, Rules of Evidence and Procedure (2nd edn, 2013).
7 See Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and
Evidence (13 February 2020) ICC-01/18-24, at para 4.
8 Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A comment on Ambos’ ‘Palestine, ‘Non- Member Observer’ Status and ICC Jurisdiction’’ (27 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status- and-icc-jurisdiction/#more-10954; it has been compellingly argued that the modern Palestinian State long pre- dates recognition by the General Assembly, see, inter alia, Victor Kattan, ‘Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I’ (9 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/09/muddying-the-waters-a-reply-to-kay-and-kern-on-the-statehood-of-palestine- and-the-icc-part-i/; Victor Kattan, ‘Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern’ (20 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/20/muddying-the-waters-still- further-a-response-to-steven-kay-and-joshua-kern/.
9 UN General Assembly Resolution 67/19 (4 December 2012) UN Doc. A/RES/67/19 at para 2: “[d]ecides to accord to Palestine non-member observer State status” (emphasis added).
10 See, inter alia, John Quigley, ‘ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC’ (5 February 2020) Opinio Juris, available at: https://opiniojuris.org/2020/02/05/icc-and-palestine-symposium-general-assembly-resolution-67-19-and- palestine-as-a-state-before-the-icc/, arguing that Resolution 67/19 was conclusive; also John Quigley, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016).
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State of Palestine has been diplomatically recognised by a reported 140 States,11 has been afforded full membership of the UN Educational, Scientific and Cultural Organization (UNESCO),12 inducted into the Court’s Assembly of States Parties (ASP),13 recognised and been reviewed by UN human rights treaty bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) in July 201814, the UN Committee for the Elimination of Racial Discrimination (CERD) in August 201915, the UN Committee on the Rights of the Child (CRC) in January 202016, and soon the UN Committee Against Torture (CAT)17, as being capable of conferring jurisdiction under the relevant international human rights treaties, while it has further acceded to myriad international
11 As reported in UN General Assembly, Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (4 August 2019) UN Doc A/74/35, para 17.
12 UNESCO, General Conference admits Palestine as UNESCO Member (31 October 2011), available at:
http://www.unesco.org/new/en/media-services/single- view/news/general_conference_admits_palestine_as_unesco_member/; UNESCO, Records of the General Conference, 36th session (25 October-10 November 2011) VI General Resolutions, at para 76; note also that considerable weigh has been put on Palestine’s status as a UNESCO member, see Jure Vidmar, ‘Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state’ (22 November 2018) available at: https://www.ejiltalk.org/palestine-v-united-states-why-the-icj-does-not-need-to-decide-whether-palestine-is- a-state/; William Schabas, ‘Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute’ (3 November 2011) PhD studies in human rights, available at: http://humanrightsdoctorate.blogspot.com/2011/11/relevant-depositary-practice-of.html; Michael Kearney, ‘The Situation in Palestine’ (5 April 2012) Opinio Juris, available at: http://opiniojuris.org/2012/04/05/the-situation- in-palestine/.
13 ICC, Welcoming ceremony for a new State Party: State of Palestine (1 April 2015).
14 See Article 25, Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) 1249 UNTS 13: “The present Convention shall be open for signature by all States”; see also CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1.
15 See Article 17(1), International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 UNTS 195 (henceforth “ICERD”): “This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention”; CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2; see also decision at CERD, Inter-State communication submitted by the State of Palestine against Israel (12 December 2019) UN Doc CERD/C/100/5 (henceforth the “CERD Decision”).
16 See Article 46, Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3: “The present Convention shall be open for signature by all States”; see also CRC, Concluding Observations: State of Palestine (6 March 2020) UN Doc CRC/C/PSE/CO/1.
17 Article 25, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85: “This Convention is open for signature by all States”; see also Palestine’s State Report: State of Palestine, Initial report submitted by the State of Palestine under article 19 of the Convention, due in 2015(26 August 2019) UN Doc CAT/C/PSE/1.
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treaties and human rights instruments, including the Apartheid Convention18, Rome Statute,
the four Geneva Conventions and their Additional Protocols.19
- Nonetheless, an analysis as to statehood appears to be necessary, given the prerequisite
found in Article 12, as well as the corpus of argumentation outlined in amici applications in preparation of the current proceedings. That said, it is submitted that the PTC is bound to consider this issue as a matter of procedural, as opposed to substantive law. I agree with the Prosecutor in her opinion that the determination to be made by the Court is not whether Palestine constitutes a State as a matter of general international law, but solely for the purposes of the Court’s jurisdiction under the Rome Statute.20
- The PTC therefore need not consider what have been dubbed the “Montevideo Criteria”21 of statehood.22 Instead, the PTC need only consider whether the referral submitted by the State of Palestine23 is consistent with the terms of Article 12(2)(a) of the Rome Statute, having reference to the accepted rules of interpretation outlined in the Vienna Convention
18 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entry into force 18 July 1976) UN General Assembly Resolution A/RES/3068(XXVIII).
19 Request, para 127; note also Victor Kattan, ‘The Implications of Joining the ICC after Operation Protective Edge’ (2014) 44(1) Journal of Palestine Studies 63: “The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood.”
20 Request, para 42, 111; Alain Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ (2010) 6, available at: https://iccforum.com/media/background/gaza/2010-02-18_Pellet- Memo_(English_Translation).pdf.
21 Article 1, Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934): “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”
22 In any case, the Montevideo Criteria should not be viewed as a rigid yardstick with which to judge statehood, on this, and the context in which the Convention was drafted, see Quigley op cit (2020); see also James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2007) at 437: “… the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even hackneyed.”
23 State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 May 2018).
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on the Law of Treaties,24 and the object and purpose of the Rome Statute, namely to end
impunity for international crimes.25
- As the Prosecutor has compellingly argued, the status of a “State” within the context of
Articles 12(1), 12(2), and 125(3) of the Rome Statute, being consistent throughout, has been concretely achieved by the deposit of Palestine’s instrument of accession with the UN Secretary-General.26 The so-called “all States” formula embedded in the framework of the Rome Statute27 necessarily links the eligibility criteria for accession to determinations of the General Assembly.28 Thus, accession to the Rome Statute contains an implicit “statehood check”, whereby the Secretary-General confirms whether the entity attempting to accede constitutes a State under international law. While deference to the pronouncements of the General Assembly is controversial to some observers, it must be stressed that this approach is consistent with previous Court practice regarding Palestine,29 and is desirable to avoid a situation in which the final pronouncement on statehood for the purposes of a given instrument falls entirely on the Secretary-General.30
- The question, therefore, is not whether Palestine constitutes a State as such, but whether, through its accession to the Rome Statute, as well as other instruments and fora, it has
24 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (henceforth the “VCLT”).
25 Request, para 29: “to end impunity and ensure that the Court’s jurisdiction is triggered responsibly and lawfully”; ICC, Separate Opinion of Judge Péter Kovács (27 January 2016) ICC-01/15-12-Anx-Corr, para 65: “a policy running against the basic philosophy of the ICC, namely to end impunity”; Preamble, Rome Statute: “the most serious crimes of concern to the international community as a whole must not go unpunished”; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) 77: “… its role is also geared towards preventing or deterring future atrocities”; interestingly it is worth noting Vidmar’s contention, op cit, in the context of the International Court of Justice: “… regulating an entity’s legal status is clearly not the object and purpose of the treaty” (emphasis added).
26 Request, para 103.
27 Article 125(3), Rome Statute.
28 See Treaty Section, UN Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999) UN Doc. ST/LEG/7/Rev.1, paras 81-83.
29 While the former Prosecutor refrained from opening an investigation due to concerns of jurisdiction, his analysis suggests that his Office’s position would have been different had the General Assembly passed Resolution 67/19 by that time, see Office of the Prosecutor, Situation in Palestine (3 April 2012) at paras 5, 7, available at: https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A- FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.
30 Request, para 109.
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9.
attained the full suite of rights and obligations found therein; here, the answer should be in the affirmative, given Palestine’s acceptance as both a State Party and functional member of the international community. This approach, referred to as the “functionalist approach” has a strong basis elsewhere in the field of international law,31 and has been widely endorsed, explicitly or otherwise, by commentators as the appropriate lens for the Court.32 This was appreciated recently by CERD in its jurisdictional finding on the Inter-State Complaint submitted by Palestine, which did find it necessary to extend its analysis beyond Palestine’s status, and functional capacity to act, as a State Party to ICERD.33
Moreover, it should be stressed that this approach is not merely consistent with the object and purpose of the Rome Statute, but is arguably mandated by the “General Rule” of interpretation.34 As previously affirmed by the Court, this judicial body is not permitted to decline to draw on a particular element of the “General Rule”,35 and should interpret all sources of law in light of the object and purpose of the Rome Statute,36 while doing what is necessary to avoid results that are unreasonable, or produce absurdities and unjust results.37 The Rome Statute thus requires its interpretation to be carried out in light of internationally
31 While not directly applicable to the Rome Statute framework, the best example of this is the so-called “Vienna Formula”, stemming from Article 81, VCLT, see: Schabas op cit; on the prevalence of functionalism elsewhere, see Pellet op cit, para 9.
32 See, inter alia: Valentina Azarova and Triestino Mariniello, ‘Why the ICC Needs a ‘Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context’ (2017) 11(1) Diritti Umani e Diritto Internazionale (Human Rights and International Law) 152-154; Pellet op cit; Kai Ambos, ‘Palestine, UN Non-Member Observer Status and ICC Jurisdiction’ (6 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/; Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016) 31-35; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen’ (2010) 8 Journal of International Criminal Justice 329; Al-Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under Article 12(3) of the Rome Statute (14 December 2009).
33 CERD Decision, para 3.9. 34 Article 31(1), VCLT.
35 ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga: Judgement pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, para 44.
36 Ibid., 47.
37 ICC, Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo (21
March 2016) ICC-01/05-01/18, paras 80-81.
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recognised human rights norms,38 which must necessarily include the long recognised right of the Palestinian people to self-determination, a jus cogens norm,39 which gives rise to obligations erga omnes, binding on all States.40 As certain acts by the State of Israel in the occupied Palestinian territory create obligations of such a character,41 this must be considered in the PTC’s interpretative calculus. The Prosecutor alludes to this in her Request, wherein she notes that “[i]t would appear contrary to the principle of effectiveness42 and good faith to allow an entity to join the ICC but then to deny the rights and obligations of accession … the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.”43
- It is useful to dwell on the implications of a negative determination of Palestine’s standing as a State Party before the Court: “[w]ould a referral and the deposit of the instrument of accession … be deemed invalid? Would that State Party be expelled from the Court? Or would it become a sui generis State Party which can still participate and vote in the ASP … even though the Court may not have jurisdiction over such a State?”44 If such a perverse approach were adopted, Palestine would be rendered as akin to a “legal black hole”, despite its accession.45
38 Article 21(3), Rome Statute.
39 Antonio Cassese, International Law (2nd edn, Oxford University Press, 2005) 65; Malcolm N Shaw, International Law (6th edn, Cambridge University Press, 2008) 808; James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (25 January 2012) para 26, available at: https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.
40 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 (Advisory Opinion) (1971) para 29 (henceforth the “Namibia Opinion”).
41 ICJ, Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) para 155-156 (henceforth the “Wall Opinion”).
42 Defined in ICC, Joint Concurring Opinion of Judges Eboe-Osuji,Morrison, Hofmanski and Bossa (6 May 2019) ICC-02/05-01/09-397-Anx1 at para 419: “a principle which gives preference to that interpretation of a treaty which best promotes its major purposes”, quoting Myers McDougal and Richard Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 261.
43 Request, para 114. 44 Ibid.
45 Shany, op cit, 337.
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- It would therefore appear that, in any event, a negative determination by the PTC at this stage would be manifestly incompatible with the object and purpose of the Rome Statute and the inclusive goals of the Court. As such, attempting to deviate from the functionalist approach, outlined above and adopted by CERD, and to apply the so-called “Montevideo criteria”, would seem an ultra vires act by the Court, as well as being an overly rigid and ill-advised step inconsistent with “the basic philosophy” of the Court which “might result in an increase in the impunity gap.”46
III. The Issue of Territorial Jurisdiction
- The issue of statehood so resolved, the amicus observations now turn to the territorial scope of a potential future investigation.47 It is submitted that the same principles and rules of interpretation that guide the Chamber in its determination on the issue of Palestinian statehood should also apply here. With due regard for the “General Rule”, the principle of effectiveness, and due regard for internationally recognised norms of human rights, particularly the collective right of self-determination, it is clear that to provide a meaningful method with which to end impunity for international crimes, the scope of a future investigation by the Prosecutor should encompass the entirety of the occupied Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip. Moreover, as noted by the Prosecutor, it is appropriate to stress that a determination as to jurisdictional scope here should not be conflated with a delineation of the Palestinian territorial claim as such.48
- While an extended analysis of the events leading to the beginning of the occupation of the occupied Palestinian territory in 1967 does not require reiterating here,49 and will
46 Kovács, op cit, para 65.
47 See Request, para 190.
48 Ibid., 192.
49 For helpful narration, see Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44(1) Harvard International Law Journal 69-85; for events prior to 1948, see also Victor
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doubtlessly be provided in detail by other amici, it is useful at this stage to recall the status of the occupied Palestinian territory as occupied since 1967, as it represents the current Palestinian State’s territorial claim.50 This claim has been bolstered51 by the territorial nature of the Palestinian right to self-determination, including permanent sovereignty over natural wealth and resources, as repeatedly recognised by, inter alia, the UN General Assembly,52 the Human Rights Council,53 and the ICJ.54 Accordingly, just as the Chamber is bound to consider this right in its interpretation on the issue of statehood, it should be considered during its analysis as to the extent of its jurisdiction.
- Moreover, the legal importance of the maintenance of the character of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, as a single territorial unit, has been repeatedly recognised by the international community, including by the UN Security Council,55 and General Assembly.56 It is further
Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891- 1949 (Pluto Press, 2009).
50 See ICJ, Written Statement Submitted by Palestine (30 January 2004) para 547; State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 Mary 2018), fn 4.
51 On this see Request, para 194, fn. 612, quoting Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol. 1, Peace: Parts 2 to 4 (Longman, 1996) para 274: “[i]t is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. State and territory are, in the traditional law, complementary terms. Normally only a state can possess a territory, yet that possession of a territory is the essence of the definition of state. The infusion of the concept of the rights of a ‘people’ into this legal scheme is therefore a change which is more fundamental than at first appears”; see also Crawford op cit, para 29: “In light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. As such, Israel does not acquire a legal right to or interest in land in the West Bank purely on the basis of its status as an occupier.”
52 See, inter alia, UN General Assembly Resolutions: 2649 (XXV) (30 November 1970) para 5; 67/19 (4 December 2012) UN Doc A/RES/67/19, para 1,4; 70/15 (4 December 2015) UN Doc A/RES/70/15, para 21(b); 71/23 (15 December 2016) UN Doc A/RES/71/23, para 22(b); 72/14 (7 December 2017) UN Doc A/RES/72/14, para 24(b); 793/96 (18 December 2018), preamble; 73/19 (5 December 2018) UN Doc A/RES/73/19, para 22(b); 73/255 (15 January 2019) UN Doc A/RES/73/255 para 1; 73/158 (9 January 2019) UN Doc A/RES/73/158.
53 Most recently, UN Human Rights Council Resolution 40/24 (17 April 2019) UN Doc A/HRC/RES/40/24. 54 Wall Opinion, para 122.
55 The Security Council declared any attempts to alter the “physical character, demographic composition, institutional structure, or status” of the oPt as being of “no legal validity” and “a flagrant violation of the Fourth Geneva Convention … and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace”, UN Security Council Resolution 465 (1 March 1980) UN Doc S/RES/465, para 5; see also Resolution 2334 (23 December 2016) UN Doc S/RES/2334, para 3.
56 UN General Assembly Resolutions: 70/15 (4 December 2015) UN Doc A/RES/70/15, para 11; 71/23 (15 December 2016) UN Doc A/RES/71/23 para 12; 72/14 (7 December 2017) UN Doc A/RES/72/14 para 13; 73/19 (5 December 2018) UN Doc A/RES/73/19 para 13; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8.
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necessary to clarify that Palestine’s claim to its territory, or indeed that of any State, is not contingent on having “defined and settled boundaries”57 or the exclusive authority to exercise jurisdiction, of any kind, therein.
- Nonetheless, due to the idiosyncratic legal complexities imposed by Israel upon each of the three geographic domains of the occupied Palestinian territory (the West Bank, including East Jerusalem, and the Gaza Strip), as part of the former’s campaign of strategic fragmentation imposed upon the Palestinian people as a whole,58 it is worth considering each territorial domain so as to clarify their specific relationship to the overall territorial claims of the State of Palestine, and as such to the scope of the Court’s jurisdiction.
- West Bank
- As noted above, the West Bank has been under belligerent Israeli military occupation since the 1967 War,59 which triggered the applicability of the Fourth Geneva Convention60 and Hague Regulations61 throughout the occupied Palestinian territory. Later, in 1993, a process began whereby the Palestine Liberation Organisation (PLO) and the State of Israel produced what became known as the Oslo Accords, which divided the West Bank into Areas A, B, and C.62 For the purposes of this analysis, it should be noted that a core aspect of these
57 Shaw, quoted in Request, fn. 608.
58 On this, see throughout UN ESCWA, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue No. 1, (2017) UN Doc E/ESCWA/ECRI/2017/1; see also, Al-Haq, et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports (10 November 2019), available at: http://www.alhaq.org/cached_uploads/download/2019/11/12/joint-parallel-report-to-cerd-on-israel-s-17th-19th- periodic-reports-10-november-2019-final-1573563352.pdf.
59 Wall Opinion, para 73, 101.
60 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,
entry into force 21 October 1950) 75 UNTS 287 (henceforth the “Fourth Geneva Convention”).
61 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land) (adopted 18 October 1907, entry into force 26 January 1910) (henceforth the “Hague Regulations”).
62 See Request, para 68.
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agreements is the exclusion of all Israelis in the occupied Palestinian territory from
Palestinian criminal jurisdiction.63
- A key component of the occupation’s machinery has been the construction and maintenance
of illegal Israeli settlements in the West Bank, including East Jerusalem.64 These settlements have largely been constructed on appropriated Palestinian land, which is typically seized under the pretext of “military necessity”, or through its designation, by the Israeli occupying authorities, as “State” or abandoned land65, and are predominantly located in Area C, which the Oslo Accords identify as being subject to Israeli jurisdictional control.
- It is submitted, in line with the analysis put forward by the Prosecutor, that the Oslo process, constitutive of “Oslo I” and “Oslo II”, does not create a legal barrier or challenge to the territorial jurisdiction of the State of Palestine, and therefore the Court.66 First, the Oslo Accords constitute a “special agreement” for the purposes of the Fourth Geneva Convention, and as such cannot deprive the Palestinian people of their inalienable rights and protections under international law and the Fourth Geneva Convention.67 Accordingly, the fact that the PLO has entered into such agreements with the State of Israel may not be interpreted as having relinquished the right of self-determination and permanent sovereignty over natural resources inherent to the Palestinian people, nor can it be interpreted as constituting a renunciation of any other rights conferred upon the protected population.
63 Ibid., para 70.
64 For a timeline of the Israeli settler enterprise, see UN Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East-Jerusalem (7 February 2013) UN Doc A/HRC/22/63, para 24-30.
65 Ibid., 20.
66 See Request, para 183.
67 Articles 7, Fourth Geneva Convention; Request, para 186; see also Basheer AlZoughbi, ‘The Operation of the Oslo Treaties and the Pacific Mechanisms of Conflict Resolution under Public International Law’ (2013) 45(2) Peace Research 39-40: “The transfer of power that was introduced in the aftermath of the Oslo Accords as a result of the agreements concluded between the PLO and Israel changed neither the status of the Occupied Palestinian Territory nor that of protected persons who were being deprived of the benefits of the 1949 Fourth Geneva Convention on a continuous basis … Thus, according to the Fourth Geneva Convention, Israel has legal obligations to honour the rights and ensure the welfare of those under occupation.”
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- Moreover, as also recognised by the Prosecutor, the provisions of Oslo II regarding the regulation of the jurisdiction of the Palestinian National Authority (PNA) relates solely to enforcement, as opposed to prescriptive jurisdiction, i.e. the ability to enforce, as opposed to create, law.68 Stahn, referenced extensively by the Prosecutor,69 draws this distinction most clearly: noting the separation of jurisdiction into these two categories, he contends that “[a]ny other conception would have detrimental consequences for international law. It would imply that a state that is unable to exercise jurisdiction over specific parts of its territory would lose its ability to investigate or prosecute offenders or to seize an international jurisdiction with the power to try offenders. This would create significant accountability gaps” (emphasis added).70 Crucially, the ability to confer jurisdiction on the Court is a matter of prescriptive jurisdiction.71
20.Stahn further observes that “[b]ilateral immunity agreements that award exclusive jurisdiction over specific categories of persons to another state do not extinguish the general capacity of the contracting state to allocate jurisdiction to another entity. If anything, such agreements demonstrate the inherent or pre-existing competence of the State to exercise such jurisdiction.”72 As such, the inability of the PNA to punish, prosecute, or otherwise enforce its laws against Israelis does not preclude the Court from investigating, charging,
68 Request, para 184; see also Ambos op cit: “Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction”.
69 See, in particular, Request, fn. 581-582.
70 Carsten Stahn, ‘Response: The ICC: Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Neo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) 49(2) Vanderbilt Journal of Transnational Law 450.
71 Ambos op cit: “… pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.”
72 Stahn op cit, 451, also 451-452: “If a state has conferred jurisdiction to the ICC, despite a previous bilateral treaty arrangement limiting domestic jurisdiction, the resolution of conflicting obligations becomes an issue of complementarity and cooperation. The ICC is not bound by the agreement of the State Party. It does therefore not have to apply the rule lex specialis derrogat lex generalis. It will instead have to assess whether there are any domestic investigations or not. In case of inaction, the ICC is generally competent to proceed with its own investigations and prosecution.”
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or prosecuting such individuals for international crimes committed within the occupied
Palestinian territory, including in Area C in the occupied West Bank.
- Alternatively, Al-Haq, a Palestinian human rights organisation, outlines the argument73 that grave breaches of international humanitarian law, such as the construction and maintenance of Israeli settlements, which have been recognised by the ICJ as amounting to violations of jus cogens norms giving rise to obligations erga omnes,74 create obligations on all States to take positive action to try or extradite those suspected of grave breaches of the Geneva Conventions.75 This obligation, it is argued, has been recognised as binding the PNA, without prejudice to the existence, or supposed non-existence, of a State of Palestine. As such, the purported inability of the PNA to fulfil this duty as a result of a strict interpretation of Oslo II, whether through the Court or otherwise, would amount to undermining recognised principles of international law; “[b]y this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international
humanitarian law, is on a par with proper states.”76
- Regardless of which approach the Court finds most compelling, Kearney is doubtless
correct in stressing that similar restrictions imposed by the Oslo Accords, such as the capacity to engage in international relations,77 are not reflected in State practice, by either third States or Palestine itself, nor is it conducive to the experience of international organisations and human rights bodies.78 The UN Commission of Inquiry addressing the 2018 protests in the occupied Palestinian territory (Commission of Inquiry) affirmatively
73 Originating in Al-Haq, Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (14 December 2009).
74 Wall Opinion, 88, 156.
75 See Article 146(2), Fourth Geneva Convention.
76 See Kearney op cit, 34-35.
77 See Request, para 71.
78 Kearney op cit: “It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people”.
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found that the PNA has obligations, under both international human rights and humanitarian law,79 applicable to “the entire OPT” (emphasis added),80 without distinction as to the Areas delineated in the Oslo Accords. This is further corroborated by, inter alia, CEDAW81, CERD82, and the CRC.83 As such, the Oslo Accords should not be deemed to be a barrier to the full exertion of the Court’s jurisdiction over the occupied West Bank as a whole.
- Finally, it has been argued that the Court’s jurisdiction may not be extended to, or would be of questionable authority, with respect to illegal Israeli settlements in the occupied West Bank.84 It is respectfully submitted that this argument represents the perfect opportunity to illustrate why Article 21(3) should be applied in interpreting the Court’s jurisdiction in Palestine. The construction and maintenance of illegal Israeli settlements in the West Bank, as well as East Jerusalem, has been well established to be in violation of internationally recognised principles of human rights law,85 including jus cogens norms, which give rise to obligations erga omnes. Accordingly, interpreting the Court’s, and indirectly the Prosecutor’s, jurisdiction as limited due to the presence of the settlements would be fundamentally incompatible with the Chamber’s obligation to interpret the relevant law in light of principles of human rights.
- East Jerusalem
79 UN Human Rights Council, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (25 February 2019) UN Doc A/HRC/40/74, para 708 (henceforth “Commission of Inquiry Report”).
80 Ibid., para 759.
81 CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1, PARA
82 CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2, para 3.
83 CRC, Concluding Observations: State of Palestine (13 February 2020) UN Doc CRC/C/PSE/CO/1, para 4.
84 For this argument, see Stephen Kay and Joshua Kern, ‘The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction’ (5 July 2019) Opinio Juris, available at: https://opiniojuris.org/2019/07/05/the- statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/.
85 See throughout, Human Rights Council op cit (7 February 2013); see also Committee for Economic, Social and Cultural Rights, Concluding Observations: Israel (12 November 2019) UN Doc E/C.12/ISR/CO/4, para 11, 16, 46.
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- East Jerusalem, or those portions of the city which lie beyond the Green Line, has been repeatedly affirmed and reaffirmed to be a part of the occupied Palestinian territory in countless UN General Assembly,86 Security Council,87 and Human Rights Council88 resolutions, as well as in the Wall Opinion issued by the ICJ.89 Moreover, actions which “purport to have altered the character, status or demographic composition of the Holy City of Jerusalem” have been deemed by the international community to “have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council”.90 While many proposals relating to the status of Jerusalem have been suggested,91 including the so-called corpus separatum proposed in the UN partition plan92, the territorial claim of Palestine to Jerusalem has never been refuted; tellingly, the importance of determining this issue with respect to the right of the Palestinian people to self-determination, including permanent sovereignty, was reiterated on the occasion of Israel’s induction into the UN.93
- While it is respectfully submitted that this should be sufficient to satisfy the Court as to its jurisdiction over East Jerusalem, given the importance of the city, both spiritually and as an
86 See, inter alia, UN General Assembly Resolutions: 36/120(D) (10 December 1981), para 5; 36/120(F) (10 December 1981), para 2; 72/15 (7 December 2017) UN Doc A/RES/72/15, preamble; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8, 12.
87 UN Security Council Resolutions: 465 (1 March 1980) UN Doc S/RES/465, para 5; 476 (30 June 1980) UN Doc S/RES/476, para 1; 478 (20 August 1980) UN Doc S/RES/478, para 3.
88 Most recently in UN Human Rights Council Resolution 40/23 (22 March 2019) UN Doc A/RES/40/23, para 15.
89 See, Wall Opinion para 119: “… the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem)”, also para 120: “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”
90 UN General Assembly Resolution ES-10/19 (22 December 2017) UN Doc A/RES/ES-10/19, para 1, see also UN Security Council Resolutions: 252 (21 May 1968) UN Doc S/RES/252, para 2; 267 (3 July 1969) UN Doc S/RES/267, para 4; 298 (25 September 1971) UN Doc S/RES/1971, para 3.
91 See, for example, John V Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’ (1996) 45(3) Catholic University Law Review 781.
92 See Part III, UN General Assembly Resolution 181(II) (29 November 1947) UN Doc A/RES/181(II).
93 UN General Assembly Resolution 273(III) (11 May 1949) UN Doc A/RES/273(III), preamble, “[r]ecalling its
resolutions of 29 November 1947 and 11 December 1948”.
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integral component of the territory of Palestine, its status as occupied territory94, as well as the gravity of the situation on the ground, this section will provide further analysis as to the sovereignty and right to self-determination of the Palestinian people in the city, and its continuity ever since the British Mandate was established.
- During the British Mandate period, which commenced after the fall of the Ottoman Empire as a result of the peace diplomacy at Versailles, Palestine was categorised, under British rule, as a “Class A” mandate, along with others such as Iraq, Syria, and Lebanon. The ICJ declared that “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” as a “sacred trust” that pre-existed the creation of the Mandate system, and “continued to apply to League of Nations mandated territories”.95 Thus, the Palestinian people were recognised as having an inherent right to self-determination, even while under Mandate rule.96 The continuity of this right, which encompassed Jerusalem, the capital of Palestine during the Mandate, remained unbroken, including through the 1948 War. The Jewish Agency declared the establishment of the State of Israel following the seizure of the western part of the city of Jerusalem, and after a protracted campaign of ethnic cleansing directed towards the indigenous Palestinian people,97 the newly-established State of Israel immediately declared Jerusalem to be “Israel-occupied territory.”98 Nonetheless, a few
94 Wall Opinion, para 78.
95 Namibia Opinion, para 52; see also ICJ, International Status of South West Africa (Advisory Opinion) (11 July
1950).
96 On this, see Al-Haq, ‘Al-Haq Briefing Paper – 70 Years On: Palestinians Retain Sovereignty Over East and West Jerusalem’ (2018), available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/images/stories/PDF/Jerusalem_20%20Oct_final.pdf ; see also John Quigley, ‘Sovereignty in Jerusalem’ (1996) 45(3) Catholic University Law Review 778: Palestinians “had a right to sovereignty based on its connection to the territory, and on the principle of self- determination”.
97 See Henry Cattan, Jerusalem (St Martins’ Press, 1981) 48; also, generally, Ilan Pappe, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6; Ilan Pappe, The Ethnic Cleansing of Palestine (One World, 2006).
98 Israel Ministry of Foreign Affairs, 2 Jerusalem Declared Israel-Occupied City- Government Proclamation, available at: https://mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/2%20jerusalem%20declared%20israel- occupied%20city-%20governm.aspx.
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months later, in February 1949, Israel abolished military rule and instituted its own civil
administration in the city, amounting to de facto annexation.99
27. East Jerusalem was among the Palestinian territories occupied by Israel during the 1967
War. As noted by the UN Secretary-General in 1967, “[t]he Israel authorities … stated … that the municipality of West Jerusalem began operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the agent of the Military Government, but from 29 June municipal processes started to function according to Israel law.”100 The extension of annexation from the western to the eastern part of the city, as well as neighbouring Palestinian villages101, made it clear that “Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before 1967.”102 The annexationist extension of Israeli authority over East Jerusalem and the surrounding area through the shifting and redrawing of municipal boundaries adheres to the so-called “Jerusalem 2020 Master Plan”, designed to achieve “spatial segregation”103 within the city, instituted with the ultimate aim of the strategic fragmentation of the Palestinian people104, and the demographic manipulation of the city, restricting the Palestinian presence to 30 percent of the population.105
99 Israel Ministry of Foreign Affairs, 4 Jerusalem-s Military Government Abolished- Government Proclamation, available at: http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/4%20Jerusalem- s%20Military%20Government%20Abolished-%20Gover.aspx.
100 UN Security Council, Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating to Jerusalem (12 September 1967) UN Doc S/8146, para 28.
101 See B’Tselem, East Jerusalem (11 November 2017, last updated 27 January 2019), available at: https://www.btselem.org/jerusalem.
102 Ibid., para 33.
103 Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004), section 7: “… spatial segregation of the various populations groups in the city is a real advantage … It is appropriate, therefore, to direct a planning policy that encourages the continuation of spatial segregation with a substantial amount of tolerance and consideration”, available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/en/wp- content/uploads/2018/03/LocalOutlinePlanJerusalem2000.pdf.
104 See UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk (13 January 2014) UN Doc A/HRC/25/67, para 23.
105 Jerusalem Municipality, op cit, section 7: “Demographic Balance ‘According to Governmental Decisions’ – This goal, as presented by the municipality and adopted in governmental discussions regarding the matter, seeks to maintain a ratio of 70% Jews and 30% Arabs.”
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- The annexation of East Jerusalem, made effective in 1967, was formalised in Israeli law in 1980 with the passing of the “Basic Law: Jerusalem, Capital of Israel,” of constitutional status, envisaging “Jerusalem, complete and united [as] the capital of Israel.”106 This formalisation was condemned as “null and void” by the UN Security Council.107 The culmination of Israel’s annexationist policies to alter the demographic character of the city occurred with the erection of the Annexation Wall, which cemented Israel’s acquisition,108 and illegal annexation,109 of Jerusalem by military force and the coercive displacement of the indigenous Palestinian population, in direct contravention of international law110. As the acquisition of territory by force, as extended by occupation or annexation, cannot vest sovereignty in a belligerent or occupier, the actions taken by Israel in 1948, 1967, and 1980 are ineffectual in vesting Israel with sovereignty over Jerusalem, in particular occupied East Jerusalem.
- It is pertinent to give consideration to the Palestinian residents of East Jerusalem, who are not treated in accordance with human dignity, but rather as a demographic challenge by the Israeli authorities. While the State of Palestine is unable to confer citizenship upon residents, Israel refuses to extend similar rights upon Palestinian East Jerusalemites, and instead subjects them to a precarious “permanent residency” status, which may be revoked at any time.111 Moreover, such status may be, and often is, revoked punitively, as part of
106 Knesset, Basic Law: Jerusalem, Capital of Israel, translation available at: https://www.knesset.gov.il/laws/special/eng/basic10_eng.htm.
107 UN Security Council Resolution 478 (20 August 1980) UN Doc S/RES/478.
108 Article 2(4), Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI.; see also Wall Opinion, para 1; UN Security Council Resolution 2334 (23 December 2014) UN Doc S/RES/2334, preamble.
109 Article 47, Fourth Geneva Convention.
110 See Wall Opinion, para 122: “…the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council … There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.”
111 This was introduced by Knesset, Entry into Israel Law (5710/1950), available at: https://www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/40-Entry-into- Israel-Law-1952.pdf.
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unlawful campaigns of collective punishment, under the vague pretext of a “breach of
allegiance” to the State of Israel.112
- Israel’s framework of control over East Jerusalem does not, in any way, provide for the
Palestinian pursuit of political, social, and cultural development, nor the vindication of their inalienable rights under international law, and thus is incompatible with their inherent right of self-determination.113 This manifest and prolonged breach of the collective right of Palestinian East Jerusalemites must be used as a basis, in line with Article 21(3) of the Rome Statute, in interpreting the extent of ICC jurisdiction; it is the Israeli authorities who exercise control over the annexed city and are responsible for the ongoing campaign of rights violations and alleged international crimes. Any move to exclude East Jerusalem from Palestinian jurisdiction would improperly contribute to unending Israeli impunity.
- Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.
- The Gaza Strip
- As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and
112 See Al-Haq, Punitive Residency Revocation: the Most Recent Tool of Forcible Transfer (17 March 2018), available at: http://www.alhaq.org/advocacy/6257.html.
113 Reference re: Secession of Quebec [1998] 2 R.C.S, at para 126.
114 See The Israeli-Palestinian Interim Agreement (Oslo II) (28 September 1995), available at: http://www.acpr.org.il/publications/books/44-Zero-isr-pal-interim-agreement.pdf, Article XI(1): “The two sides view the West Bank and the Gaza Strip as a single territorial unit”, and Article XVII(1): “In accordance with the DOP, the jurisdiction will cover West Bank and Gaza Strip territory as a single territorial unit …”; see also UN Security Council Resolution 1860 (8 January 2009) UN Doc S/RES/1860, preamble: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state”.
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claim, nor has it suspended obligations under international law to uphold the human rights
of Palestinians in Gaza.
33. The lack of control directly enjoyed by the PNA in Gaza has been well documented by the
Prosecutor,115 and while Israel argues that Gaza is no longer occupied, or has attained a sui generis status,116 the prevailing expert and UN view is that the territory remains occupied by Israel, despite the so-called removal of its illegal settlements from the Strip in 2005.117 As noted by Professor John Dugard in 2007, during his tenure as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, “[s]tatements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate … In effect, following Israel’s withdrawal, Gaza became a sealed off, imprisoned and occupied territory.”118 Thus, the ability of the PNA to control Gaza is hampered in part by the ongoing closure and measures of collective punishment imposed by Israel with the ultimate goal of rendering Gaza uninhabitable119; as noted by Darcy and Reynolds, “[w]hile events in Gaza have departed from traditional conceptions of warfare and occupation … sufficient clarity is retained when it comes to the effective control exercised by Israel over the Gaza Strip in order to categorize the territory as occupied.”120 As such, it is incorrect to view Gaza as unoccupied territory; the so-called ‘disengagement’ by Israeli forces in 2005 facilitated a new means of Israel’s domination and control,
115 See Request, para 80.
116 See, for example, Elizabeth Samson, ‘Is Gaza Occupied?: Redefining the Status of Gaza under International
Law’ (2010) 25(5) American University Law Review 915.
117 George E Bisharat et al, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38(1) Denver Journal of International Law & Policy 47-51; Shane Darcy and John Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15(2) Journal of Conflict & Security Law 223-242; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2009) 851-862.
118 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (29 January 2007) UN Doc A/HRC/4/17, para 6.
119 See UN, Gaza “Unliveable”, UN Special Rapporteur for the Situation of Human Rights in the OPT Tells Third Committee (24 October 2018), available at: https://www.un.org/unispal/document/gaza-unliveable-un- special-rapporteur-for-the-situation-of-human-rights-in-the-opt-tells-third-committee-press-release-excerpts/.
120 Darcy and Reynolds, op cit, 243.
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effectively amounting to a “reployment” of military capabilities exercising control of land
borders, airspace, and naval frontiers.121
34. It must be stressed that the partial control, hampered by continued Israeli occupation,
exercised by Hamas within Gaza does not produce a sui generis, quasi-state status; Hamas itself views Gaza as integral to Palestine,122 and rejects any suggestion that its administrative role in Gaza compromises Palestinian territorial integrity. Moreover, regardless of de facto control by Hamas, the PLO has been treated as the “sole legitimate representatives” of the Palestinian people by the League of Arab States,123 Israel,124 the UN General Assembly,125 and a United States federal appeals court.126 This may be observed in practice through the accepted claim by the PNA, controlled by the PLO, over Gaza’s territorial waters, in line with the Convention on the Law of the Sea127, asserting sovereignty over the “territorial sea, its airspace, and its bed and subsoil”.128 Thus, the link between the sovereign claim by the State of Palestine in the West Bank, including East Jerusalem, is fundamentally linked and congruent to that of the Gaza Strip.
121 Bisharat, op cit, 49.
122 See Hamas, Hamas warns against holding Palestinian elections separately (23 October 2019), available at:
https://hamas.ps/en/post/2382/hamas-warns-against-holding-palestinian-elections-separately.
123 League of Arab States, PLO sole legitimate representative of the Palestinian people – LAS Rabat Summit (28 October 1974), available on UN website at: https://www.un.org/unispal/document/auto-insert-194621/; see also Issa Al-Shuaibi, ‘The Development of Palestinian Entity-Consciousness: Part III’ (1980) 9(3) Journal of Palestine Studies 100.
124 Israel Ministry of Foreign Affairs, Israel-PLO Recognition: Exchange of Letters between PM Rabin and Chairman Arafat, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel- plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx.
125 The Assembly altered the designation of “Palestine Liberation Organization” given to the PLO to simply “Palestine”, thereby essentially conflating the two, see UN General Assembly Resolution 43/177 (15 December 1988) UN Doc A/RES.43/177, para 3; note, however, that this does not indicate that the PLO has become synonymous with Palestine as such, but rather is its internationally recognised conduit, see Azarov and Meloni op cit.
126 Universal Cable Productions LLC v Atlantic Speciality Insurance Company (12 July 2019) 9th Circuit, at 29: “Here, the Palestinian Authority is the de jure government”, available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/17-56672.pdf.
127 Convention on the Law of the Sea (adopted 10 December 1982, entry into force 16 November 1994).
128 State of Palestine Ministry of Foreign Affairs and Expatriates, Declaration of the State of Palestine regarding its maritime boundaries in accordance with the United Nations Convention on Law of the Sea, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PSE_Deposit_09-2019.pdf.
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- The PNA’s de jure jurisdictional claim over the Gaza Strip is further strengthened by the direct applicability of international human rights treaties acceded to by the State of Palestine therein. This has been affirmed by the Commission of Inquiry,129 and was seemingly taken as self-evident by CERD in its December 2019 jurisdictional decision.130 This has been further confirmed by other bodies such as CEDAW131 and CRC132. Indeed, the Commission of Inquiry “consider[ed] Hamas to be obligated to respect, protect and fulfil human rights” based on the accessions to various treaties by the State of Palestine,133 indicating that Hamas, as the de facto authorities in Gaza, are bound by obligations of the State of Palestine. Thus, there does not appear to be any general bar to the imposition of international statutory obligations upon either the Gaza Strip, or Hamas; instead, the State of Palestine is demonstrably capable of imposing such obligations.
- Moreover, within the specific framework of the Rome Statute, there does not appear to be any prohibition on the extension of the Court’s jurisdiction to the Gaza Strip, despite de facto control by Hamas. In the context of the occupied Georgian territory, referred to as South Ossetia, the PTC ruled that regardless of the lack of effective control by Georgia over that territory, “South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State.”134 In light of this decision, in a context wherein a separate State, although its legitimacy is questionable, had been declared, it would be inconsistent for the Court to deny the applicability of its jurisdictional reach due to the lack of de facto control over Gaza by the State of Palestine. Gaza is not the subject of an adverse separatist
129 See Commission of Inquiry Report, para 759, 768. 130 See throughout, CERD Decision.
131 CEDAW, op cit, para 9.
132 CRC, op cit, para 4.
133 Commission of Inquiry Report, para 759.
134 ICC, Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation (27 January 2016) ICC-01/15, para 6.
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claim, but rather functions and has been recognised as an integral component of the
occupied Palestinian territory.
37. Similarly, as the Court has previously made implicit designations on the competing claims
to legitimacy of opposing authorities,135 it is respectfully submitted that the Court should be satisfied with the State of Palestine’s internationally recognised de jure status as the competent authority over the entirety of the occupied Palestinian territory, and should not be deterred by its lack of de facto control. The Court’s sole consideration vis-à-vis the competency of Palestinian authorities to submit jurisdiction to the Court begins and ends with positions “clearly designated by the [de jure] State.”136 The implications of an alternative ruling would be a consolidation of the fragmentation of the Palestinian people; should the Gaza Strip be excluded from the remit of the Prosecutor’s investigation, the Court would further entrench the arbitrary fragmentation, imposed by Israel’s occupation machinery137, facilitating the creation and maintenance of a regime of impunity shielding accountability for the commission of international crimes.
- Conclusion
- Should the Court deem it necessary to make a jurisdictional ruling, under the auspices of Article 19(3), at this stage, it is respectfully submitted that it should rule that the entirety of the occupied Palestinian territory constitutes the legitimate territory of the State of Palestine, and is subject to the Court’s jurisdiction. While I am mindful of the importance and sensitivity of the issues presently before the Court to the objections of a sovereign State, however in this instance it has become abundantly clear that the broader legal considerations of extending legal accountability for international crimes should be given priority.
135 See ICC, Situation in Libya in the Case of the Prosecutor v Said Al-Islam Gaddafi: Decision on the Prosecutor’s “Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami AL-ATIRI, Commander of the Abu0Bakr Al Siddiq Battalion in Zintan, Libya” (21 November 2016) ICC-01/11-1/11, para 15.
136 Ibid., para 16.
137 See Richard Falk, ‘Israel’s Politics of Fragmentation’ (10 October 2010) Global Justice in the 21st Century,
available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
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- Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
- The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
- If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the
138 John Quigley, Situation in the State of Palestine: Submissions Pursuant to Rule 103 (John Quigley) (3 March 2020) ICC-01/18, para 59.
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context of the Rome Statute, and has the authority and competence to provide the Court with jurisdiction over the entirety of its territory, defined as the West Bank, including East Jerusalem, and the Gaza Strip, in line with the provisions of Article 12(3).
Professor Richard Falk
Dated this 16th day of March, 2020 At Istanbul, Turkey
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Tags: Bensouda, Criminal Allegations, Global Rule of Law, ICC, Israel
U.S. Policy Toward Israel/Palestine in a Deglobalizing World: A Pre-Pandemic Perspective
7 May[Prefatory Note: The text below is drawn from my presentation at the TRT World Forum, 21-22 October 2019. The conference theme was ‘Globalisation in Retreat: Risks and Opportunities.’ What strikes me now is how different the world seems only six months later due to the surreal impacts of the Coronavirus Pandemic on all aspects of perception and assessment, the totality of dislocating developments, and the heightening of an existential appreciation of the precariousness of individual and collective experience and of the radical uncertainty cloudinour expectations of the future. Surely my paper would read radically differently if rewritten in ways that took fuller account of intervening developments (the Trump/Kushner Plan) as well as the pandemic]
U.S. Policy Toward Israel/Palestine in a Deglobalizing World
Points of Departure
This paper considers some impacts of the retreat from globalization on the evolution of Israel/Palestine relations, giving special attention to the regressive character U.S. policy toward the unresolved conflict. This retreat is a complex ongoing phenomenon, generating both risks and opportunities, which are changing through time, and the present character of these threats and opportunities will be explored here. A central feature of world order in the course of this retreat from globalization is the rise of ultra-nationalist political leadership in many important countries that has resulted in a generalized withdrawal of support from cooperative responses to global problem-solving, relying instead on transactional bargains between governments as shaped by geopolitical disparities rather than by deference to considerations of international law, diplomatic compromise, and global justice.
Despite these recent negative developments, the politics, culture, and economics of globalization should not be romanticized (Falk, 1999), or more specifically not viewed as achieving positive results in relation to the century of struggle by the Palestinian people to address their legitimate grievances. Above all, the Palestinians have endured the denial of their inalienable right of national self-determination and been victimized by the imposition of apartheid structures of control on the Palestinian people as a whole, that is, whether living under occupation or otherwise. (Falk & Tilley, 2017). The Palestinian people have been victimized by the primacy of geopolitics for more than a century, ever since the issuance of the Balfour Declaration in 1917, which has illustrated the limits of normative (legal and moral) globalization. The retreat from globalization seems to have accentuated the disregard of international law and the authority of the United Nations, highlighted in relation to Israel/Palestine by the release of the Trump/Kushner plan with the absurd claim to offer ‘the deal of the century.’(U.S. Government, 2020). Such a trend if allowed to continue does amount to a severe setback for Palestinian legitimate aspirations, but such a bleak prospect is being challenged by parallel developments.
Whether this retreat from globalization is cyclical, soon to be reversed, or a longer-term linear trend is difficult to discern at this time. Its trajectory is highly contingent on the impingement from unforeseeable political, economic, and ecological developments. It may depend on the outcome of such currently unpredictable developments as to whether the Democratic candidate selected to oppose Donald Trump will go on to win the November 2020 elections, and whether the COVID-19 virus can be contained without producing a global economic collapse. As well, it is important to interpret the depth and breadth of this retreat. It certainly reflects a populist reaction of angry frustration against various forms of inequality that led many people to feel disadvantaged by ‘neoliberal globalization,’ and a turn toward demagogic leaders who denounce such developments and point fingers at the imagined culprits, real and imagined. It has also given rise to an affirmation of nationalism as the most existentially relevant political and ideological alternative to globalism. This economistic mood of grassroots alienation also reflects hostile attitudes and disruptive adjustments that pertain to such historically conditioned challenges as global migration flows and trade tensions. Also relevant for achieving an understanding of these recent developments is whether the apparent re-bonding of peoples on the basis of nationalist, and even racist and civilizational conceptions of the outer limits of political community, is integral to the retreat or just a temporary shift in focus away from the global.
We need to keep in mind that despite these evident patterns of retreat, the world in many respects continues to be more interconnected and networked than at any time in human history, and these dynamics are continuing, perhaps even accelerating as technology advances, a largely unacknowledged new interconnections in this digitally driven form of ‘globalization-from-below.’ (Slaughter, 2004, 2019) As well, on ecological and health frontiers, climate change and the global spread of lethal disease, remind us that we cannot hope to address effectively the challenges of the contemporary world without strengthening mechanisms of global cooperation. The behavior of the United States Government in leading the retreat, withdrawing from the Paris Agreement on Climate Change and the Nuclear Program Agreement with Iran (JCPOA, 2015) help us to appreciate how dysfunctional from a world order standpoint is a generalized retreat from globalization, and more concretely, what the loss of U.S. leadership in many global policy domains has meant. Such an endorsement of globalization should not, for instance, be understood as the approval of neoliberal globalization as it unfolded after the end of the Cold War. Indeed, this largely under regulated market driven approach to economic globalization greatly contributed to various types of inequality and alienation that led many peoples throughout the world to be receptive to the appeals advanced in favor of ultra-nationalism. In other words, the ultra-nationalism of the present should not be separated from a variety of disappointments brought about by predatory capitalism (Falk, 1999).
U.S. Retreat and Israel/Palestine
The reality of retreat bears crucially on the particular conflict between Israel and Palestine as reflected in the shift of the U.S. approach from its earlier pre-Trump role as partisan intermediary to its hyperbolic identity during the Trump presidency as super-partisan deal maker. Such a shift is fully in keeping with the broader pattern of retreat from globalization, but it has some additional distinguishing features. Above all, the personality and style of Trump, as reinforced by the influence of extreme Zionists donors and Evangelical Christians who constitute powerful elements of his political base. Translated into foreign policy this has meant that undisguised pro-Israeli unilateralism has replaced the earlier American diplomatic public stance of peacemaker, which uneasily coincided with the undisguised ‘special relationship’ with Israel. This special relationship meant concretely unconditional support in all security domains, although tempered by occasional murmurs of disapproval as by calling Israel’s periodic moves to accelerate the expansion of its unlawful settlements as ‘unhelpful.’ By way of contrast, in relation to the settlement movement, which struck an Israeli dagger into the heart of the two-states approach, the presidency of George W. Bush and continued under Barack Obama, Trump’s Secretary of State, agreed to close his eyes on their unlawfulness, but only in the context of an agree peace arrangement. Mike Pompeo, abandons altogether the view that the establishment of settlements violates international law without the precondition of reaching an overall agreement(Pompeo, 2020). Beyond this, even before the release of the Trump/Kushner plan, U.S. foreign policy toward Israel after Trump assumed the presidency in early 2017 exhibited a blatant form of one-sided unilateralism with regard to previously unresolved issues: appointing as his principal advisors on Israel and Middle East policy only Zionist extremists (Kushner, Friedman, Greenblatt), moving the American embassy to Jerusalem, recognizing Israeli sovereignty over the Golan Heights that were widely assumed to be occupied Syrian territory, cutting U.S. funding for UN humanitarian relief efforts in Gaza, and openly embracing Netanyahu’s racist leadership of Israel while turning his back on his Palestinian counterparts and their concerns.
Such a pattern of unilateralism is illustrative of the retreat hypothesis because it so directly undercuts not only the earlier somewhat more internationalist American approach, but also so bluntly departs from the global consensus at the UN that favored a negotiated solution that upheld Israel as a legitimate state but based its vision of peace on an agreed establishment of an independent and sovereign Palestinian state that would then be accepted as a full member of the UN. A major component of this consensus was the view that diplomacy would be relied upon to resolve the future of Jerusalem, settlements, the treatment of Palestinian refugees, the fixing of borders, and the overall arrangement of security guarantees. On all counts, Israel has recently moved with the apparent approval of Washington to resolve these issues on its own by completing its expansionist agenda. This coordinated Israel/U.S. provocative postures was dramatized by the movement of the American Embassy to Jerusalem in early 2019, an initiative overwhelmingly condemned to no avail by the UN General Assembly (UNGA Res., 2019). The Jerusalem provocation, in particular, was a direct assault on the earlier global consensus and strong Islamic that had insisted that such issues, and especially the status of Jerusalem, be settled by compromises achieved in a negotiating process so as to give both sides the sense of win/win outcomes.
In important respects, what this Trump turn represented beyond its affinity with other expressions of anti-globalization, was an assessment that the Oslo diplomacy had been tried and failed, and that it was an opportune time to make a shift toward a more muscular, less consensual, geopolitics.
Daniel Pipes, long a Zionist proponent best articulated this approach on his website, Middle East Forum, months before its adoption is slightly less crude form by Trump/Kushner (Pipes, 2017). Pipes insisted that diplomacy had been tried in good faith as the means to resolve the Israel/Palestine conflict, but had failed, and it was time to try a different approach. In his view, conflicts of this sort that prove difficult to resolve by diplomacy are shown by history to be ended only through the victory of one side that then dictates the terms of peace, with the losing side being compelled to surrender its political objectives. Without a glimmer of surprise, it was Pipes’ view that objective analysis identified Israel as the winner, Palestine the loser. Yet despite this, the conflict dragged on because the Palestinian leadership with its head in the clouds refused to accept this reality. The task of Israel, with U.S. backing, was to intensify coercion until Palestine sees the light and surrenders, and a new normal can be established. Trump/Kushner use a twisted language of ‘peace’ rather than the transparency ofa ‘victory’ to set forth their conception of the end-game in the long struggle. The substance of the plan legitimizes Israel’s territorial and security ambitions and offers the Palestinians what is called ‘a state,’ but is in fact ‘a statelet’ that is nothing more than ‘a Bantustan,’ a shorthand reference to South African way of setting up totally subordinates political entities subject to the rigors of its apartheid structures of control. To encourage the Palestinians to swallow the Kool Aid of the deal of the century, the Palestinians are threatened with unnamed dire consequences if they reject, and enticed with sugar-coated offers of economic development assistance if they accept.
It is too early to gauge whether Palestine’s immediate rejection of the Trump/Kushner/Netanyahu victory approach will prevail. This undoubtedly depends on whether such an outcome is endorsed by the Israeli and American election results in 2020, especially the latter. If Netanyahu and Trump both win, then the Palestinian Authority will likely experience coercive pressures to give up their political ambitions, and opt for a more normalized economic and social life as the best result they can hope for. What is striking from the perspective of the globalization hypothesis is the willingness of the U.S. to depart so unconditionally from the global consensus to support Israel in a manner that seems not only anti-internationalist, but also in all likelihood works against its broader and longer term strategic national interests in the Middle East, which cannot count on the indefinite repression of fiercely pro-Palestinian sentiments among Arab populations. As such, this path to ‘peace’ compounds the retreat from globalization with a costly challenge to stability in the region. This imprudent posture is domestically driven by narrowly parochial interests as epitomized by AIPAC lobbying leverage and Zionist donor pressures on the American political process (Mearcheimer & Walt, 2003). Although these features of the American political scene antedated Trump, his presidency has accentuated their relevance.
With respect to the U.S. approach to Israel/Palestine it might not have assumed such an extreme form without the specificity of the Trump election. In other words, retreat from globalization would likely have been present whoever was the Republican nominee in 2016 and even likely, in the event that Hillary Clinton had been elected. Yet the anticipated retreat would have taken place in those circumstances of new American political leadership without breaking the continuity of approach to Israel and the conflict in the radical manner adopted by Trump. The American retreat might have emphasized anti-migrant, economic nationalism, and confrontation with Russia to a greater extent, and possibly less drastic withdrawals from globalist engagements in the security domain. That is even with American leaders other than Trump accepting the politics of retreat, it seems rather likely that policy toward Israel and Palestine would have displayed only minor changes from the Bush/Obama years, probably becoming even more reluctant to criticize Israel on settlement expansion than was Obama’s willingness to break with his own practice by allowing the 2016 criticism of Israel by the Security Council to reach a decision, abstaining rather than as on prior occasions, using its veto to shield Israel from formal censure even if it stood alone in doing so. It is never possible to be very confident about ‘what if’ conjectures, but nevertheless it seems highly unlikely that had a different president been voted into office in 2016 the approach to Palestinian grievances would have abandoned diplomacy and opted so openly for coercion and unilateralism. (Falk, 2017)
What likely would have occurred with the Republican alternatives to Trump in 2016 but not so if Clinton had won is a retreat from what might be called ‘normative globalization,’ which is the most obvious common anti-globalization stance being taken across the globe. What this normative dimension of retreat entails is a general lessening of confidence in and respect for the UN and international law, and a declining reliance on global approaches to problem-solving, whether the subject-matter is trade relations, human rights, migrant flow, or climate change.
In such a transactional atmosphere, problem-solving with respect to international conflict resolution relies heavily on coercive diplomacy among states and the geopolitical priorities of dominant states. The effect could be to sharpen geopolitical tensions between the U.S. and China, U.S. and Russia, and possibly give rise to a new Cold War, with regional military confrontations and dangerous escalation dangers. In this set of circumstances, the emergence of autocratic and ultra-nationalist leadership would lead to more pragmatic relationships reflecting geopolitical priorities rather than normative affinities based on shared values and world order commitments.
Risks Associated with Trump’s Version of Retreat from Globalization
Superficially, and in the short run, Israel has been a beneficiary of this U.S. shift in diplomatic posture, but there are secondary effects and contingencies that may yet turn out to be favorable to the Palestinian struggle. More concretely, this means that the United States no longer seeks to act in general accord with the international consensus that has been shaped over the decades at the UN and elsewhere, which although reflecting a pro-Israel bias, endorsed the view that this conflict could only be resolved by some sort of negotiated accommodation between Israelis and Palestinians that set the terms and established a process for achieving a sustainable peace.
Of course, this shift in U.S. policy reflected several converging factors that resulted in the Trump presidency of which a retreat from the UN consensus and rule-governed global diplomacy was only one element. Other factors included the influence exerted by Zionist donors in American domestic politics and by Trump family members, the softening of the attitudes of Arab governments toward Israel, the reduced Western dependence on Middle Eastern oil, and the heightening of tensions with Iran. Yet the retreat from globalization is of the greatest importance as explaining the disregard of the international consensus exhibited at the UN that had somewhat constrained earlier U.S. policy, yet these limits should not be overstated as they did not prevent the continuous erosion of Palestinian rights and expectations as measured by the rules and principles of international law. That is, despite U.S. global leadership, and endorsement of globalization, in relation to Israel/Palestine an incremental coercive diplomacy that favored Israel was what led to a steady deterioration of the Palestinian position. In this respect the super-partisanship of the Trump presidency removed the pretenses and inconsistencies of normative globalization that had not materially helped the Palestinian side, while covering up the one-sided support of Israel’s political zero-sum agenda. Does this greater clarity give Palestinians new opportunities as well as pose more severe challenges?
The United States has for more than 25 years claimed the role of indispensable intermediary in working toward a negotiated peace arrangement between Israel and Palestine. Such a role reflected its global leadership status that was without challenge after the Cold War ended in the early 1990s, as well as Israel’s insistence that if negotiations were ever to occur, they had to be conducted within a framework presided over by the United States. The U.S. status as global leader also corresponded with a renewed emphasis on the Middle East (and East Asia) given the altered historical circumstance. This meant replacing Europe as the strategic site of geopolitical struggle in a globalizing world. The importance of the Middle East for the United States reflected four interrelated concerns: access to the regional oil reserves at affordable prices; ensuring Israeli security; containing the spread of political Islam in the aftermath of the Iranian Revolution (1979); avoiding any further proliferation of nuclear weapons in the region.
Given these realities there existed a strong diplomatic incentive on the part of the United States to find a solution to the Palestinian struggle that would alleviate pro-Palestinian pressures without appearing to weaken the ideological and strategic special relationship between the United States and Israel. After years of frustration on the diplomatic terrain, the Oslo Framework of Principles, agreed upon in 1993, seemed to provide a credible path to compromise and peace, consisting of the regional normalization of Israel as a legitimate state within agreed borders and the establishment of a Palestinian state based on 1967 borders, with Jerusalem as the joint capital of the two states, the satisfaction of Israeli security concerns, some kind of compensation as a substitute for the repatriation of Palestinian refugees, and the legalization of most of Israel unlawful encroachments (separation wall, settlements, road network, security zones) on formerly occupied Palestine. This peace dynamic, although sharply favorable to Israel, was viewed as the most realistic political compromise that could be achieved. Its adoption by the most affected parties also silenced most opposition in international arenas. This new dynamic was celebrated as a major breakthrough, launched with theatrical fanfare by the dramatic handshake on the White House lawn. The famous 1993 picture of the Israeli leader, Yitzhak Rabin, shaking hands with the PLO leader, Yasir Arafat, and a smiling U.S. President, Bill Clinton standing in between, was the iconic climax of choosing this delusionary path to peace. These delusions were challenged two years later by the assassination of Rabin, and even more by the rightward drift of Israeli politics and the growing influence of the settler movement, but the diplomacy dragged on and on, and even the Palestinians seemed lulled to inaction as the diplomacy continued wending its way through a labyrinth without an exit.
What is most relevant to the focus adopted here is that this diplomatic approach under U.S. auspices was superficially respectful toward the international consensus on how to address the conflict—that is, by diplomacy that was framed as negotiations between the parties, and was understood to seek compromises on the main issues in contention (territory, settlements, refugees, Jerusalem, security). This outlook, supported by bipartisanship in the United States, meaning overwhelming Congressional support and a continuity of approach whether the president was a Democrat or Republican. This Oslo peace process seemed consistent with American foreign policy of ‘liberal internationalism’ that persisted throughout the Cold War, and endured until 9/11 occurred, and being finally discarded by Trump. The Trump orientation may be described as militarist geopolitics and ultra-nationalist illiberalism. As applied to Israel/Palestine this means the Pipes victory scenario presented as diktat with scant interest in enticing Palestinian acceptance. As such, with irony, this most pro-Israeli of all American presidents has ironically fractured Jewish support for Israel, alienating not only progressive Jews but also many liberal Zionists who believed in a negotiated two-state peace agreement (Bishara, 2020).
However, to gain a proper attitude toward the Trump stance, it is necessary to avoid an unjustified embrace of this prior American peace diplomacy. it is crucial to identify the weaknesses of an approach that claimed fairness to the Palestinians while strongly slanting the process and its intended outcome toward Israel. As with Pipes, yet skillfully disguised as a compromise, Oslo diplomacy when deconstructed reveals a weaker version of an Israeli victory scenario (Baake & Omer, 20–). By failing to mention a Palestinian right of self-determination or affirm the equality of the two sides, the Oslo framework of principles set in motion a one-sided diplomacy that gave weight to power disparities, a bias further reinforced by having an overtly partisan intermediary. This imbalance was further accentuated by the insistence that Palestinian negotiators swallow all objections to Israeli violations of international law until the so-called ‘final status’ negotiations at the last stage of the process. Palestinians were told that objecting in the present context would jeopardize the negotiations. Israel never ceased building and expanding its network of unlawful settlements and further encroaching on the Palestinian territorial remnant by securitizing the settlements, including connections to Israel, which truly undercut the credibility of negotiations. Beyond this, what were called ‘negotiations’ were basically occasions for Israel to put forward self-serving proposals for conflict resolution on a take it or leave it basis, realizing Israeli goals and neglecting Palestinian priorities, and undoubtedly expecting the Palestinian side to reject. In this period, the two sides also sought agreement in direct secret negotiations that were similarly, yet more explicitly, weighted in Israel’s favor, and indicated that despite the willingness of the PLO to give Israel most of what it wanted by way of keeping its settlements and meeting its security concerns the their Israeli counterparts showed little interest (Palestine Papers, 2—). Even if the two sides somehow had signed such a one-sided peace agreement it might not have produced anything more substantial than a pause in the struggle, in effect, one more periodic ceasefire, and quite likely rejected by both the Israeli and Palestinian publics. Succeeding generations of Palestinians would not be likely to accept the validity such permanent subjugation in what purports to be a post-colonial world order. The wild fires of the ethics of nationalism and the politics of self-determination would almost certainly have doomed an arrangement that left Palestinians languishing in an entity called a state, but lacking in the most elemental aspect of sovereignty, control over its own security.
Even on the Israeli side, the Oslo slant may not have satisfied the implicit Zionist agenda of recovering the whole of the promised land, the biblical entitlement on which Israel’s claims rest, but was temporarily and tactically acceptable as it improved overall prospects to reach such a goal. This helps explain Israeli contentment despite a diplomatic process that seemed a bridge to nowhere, and never acknowledged Jewish biblical entitlement. For Israel the Oslo process was a bridge to somewhere, allowing the country to accumulate many facts on the ground, while further structuring the kind of apartheid state needed to check Palestinian resistance, thereby ensuring the stability of an ethnically based hegemonic social, economic, and political order. For Palestine, Oslo diplomacy proved to be a political disaster despite its initial gift wrapping, as the noose of victimization tightened to the point that Palestinians became virtual strangers, or even captives, in their own homeland, slowly recognizing that when the wrappings were removed the package within was an empty box. Such a dual process of Israel’s gain and Palestine’s loss occurred while the globalization fever remained high, and this one-sided dynamic achieved its momentum years before deglobalization trends became evident.
When Trump arrived on the political scene in 2017, the de facto reality of an Israeli one-state solution coexisted with defunct governmental and UN continued adherence to a de jure vision of a two-state outcome. What Trump sought by dropping the pretense of negotiating the future for Israel and Palestine was a changed formula for ending the struggle over the sequel to the British Mandate. Even Trump did not overtly affirm the major Zionist premise of biblical entitlement, using the accepted international terminology of ‘the West Bank’ rather than the promised land language of ‘Judea and Samaria.’ The Trump/Kushner approach legitimized facts on the ground as of 2020, suspending all scrutiny of the lawlessness by which the facts were accumulated. Kushner expressed this outlook clearly in an interview the day after the White House finally released its peace plan: “I’m not looking at the world as it existed in 1967. I’m looking at the world as it exists in 2020.” As well, Trump/Kushner’s deal avoided an explicit endorsement of the analysis of Pipes based on using force to induce the Palestinian leadership to surrender its political goals and accept Israel’s victory in the long struggle between these two peoples to control the identity of the homeland in what had been a Palestinian entity during the Ottoman Empire and the British Mandate.
The other distinctive feature of the Trump approach was the explicit disregard of Palestinian rights under international law. The American Secretary of State in language rather parallel to the sentiments expressed by Kushner articulated the view that it was time to abandon the earlier U.S. official stance of regarding Israeli settlements on occupied Palestinian territory as unlawful. In Mike Pompeo’s words of explanation, “..arguments about who is right and wrong in international law will not bring peace.” On behalf of the PLO, Hanan Ashrawi articulated anger and frustration in a tone of understandable exasperation: “We cannot express horror and shock because this is a pattern, but that doesn’t make it any less horrific..total disregard of international law, what is right and just, and for peace.” Although Ashrawi’s words resonate with attitudes toward international law pre-Trump and pre-retreat, the discontinuity is not as great as liberal internationalists contend (ICJ, 2004). All through the post-1967 period of occupation, while the settlement process and related encroachments on Palestinian rights and aspirations occurred, the Palestinians were counseled to withhold their international law objections so that the peace process might go forward, and the Israelis were lightly scolded as their expansionist dreams became building projects. In this spirit violating international law was ‘unhelpful,’ but if sustained, could gain legal acceptance as they did in 2004 when the Bush/Sharon exchange of letters (Bush/Sharon, 2004) declared that the settlement blocs would become part of Israel’s sovereign territory in any future peace arrangement.
Rhetoric matters, and this overt show of disregard for international law is an integral aspect of this broader retreat from globalization. Respect for and confidence in international law and procedures is a vital precondition for encouraging globally cooperative approaches to problems that affect the world as a whole. The proudest achievements of liberal internationalism along these lines were based on lawmaking treaties governing such disparate matters as the public order of the oceans, the development of Antarctica, and some aspects of military competition in the nuclear age. With the rise of ultra-nationalism and the decline of global leadership by the United States, world order is again reliant on the pre-1945 state-centric style of geopolitical rivalry, but facing the severe diverse challenges of global scope that threaten the world with catastrophe in the 2020s and beyond.
The main risks attributable to this interplay between the retreat from globalization and the super-partisanship of American policy toward Israel/Palestine can be summarized as follows:
–stabilizing Israel’s apartheid state, while denying the Palestinian people basic human rights, particularly, the right of self-determination;
–weakening respect for international law, the UN, and the authority of diplomatic resolution of international disputes;
–expressing the transition in the American global and regional leadership roles from a liberal internationalist perspective to that of rogue superpower;
–lending support to an outcome of the long struggle based on power rather than law or ethic, thereby establishing a very unfortunate precedent for conflict resolution in the 21st century.
Opportunities Resulting from the New Realities of Retreat and U.S. Hyper-Partisanship
At first glance, the situation following the release of the Trump/Kushner seems totally discouraging. It affirms the form and substance of Israel’s right-wing leadership, whether Likud or Blue/White, and reflects the dominant Zionist agenda reflecting ‘biblical entitlement’ to the whole of the promised land, either by direct or indirect sovereign control. As such it rejects a political compromise. It seems to confront Palestinians with the unhappy alternatives of political surrender or forcible resistance. Paths promising a political compromise, sovereign equality, and resting on international diplomacy seem indefinitely closed. Beyond this, the important Arab governments are silently siding with Israel, and Palestinians are without any realistic prospect of unified leadership. Given the recognition of this situation, it is difficult not to succumb to despair.
And yet, the Palestinians show no sign of regarding their struggle as ‘a lost cause.’ Resistance activity remains robust, and no element of the Palestinian leadership seems ready to sign on to the U.S. proposals, despite the temptations afforded by the offers of economic relief, which must be difficult to dismiss given the desperate plight of the 2 million Palestinians living in Gaza and the diminishing sense of national territory in the West Bank, given Israeli accelerating encroachments and Washington bright green light given expansionist ambitions and cruel, coercive tactics.
Such an unfavorable context is reinforced by the retreat from globalization. This retreat as complemented by ultra-nationalism has resulted in reduced respect for the authority of the UN, as well as weakened pressures for a genuine two-state compromise at the UN, which is itself supplemented by less willingness to challenge Israeli defiance of international humanitarian law. The utter disregard of Israeli continual reliance on excessive violence at the Gaza border is emblematic of both disregard by the media, UN, and EU for Palestinian rights and Israeli lawlessness.
Yet these developments, as paradoxical as it may sound, also have the potential to improve Palestinian prospects. There are two broad explanations. First, the earlier posture in international society had not been helpful to the Palestinian struggle for basic rights. As earlier suggested, Israel acted to undermine the core element in what was regarded as the international consensus, namely, the establishment of a viable sovereign Palestinian state with East Jerusalem as its capital. By allowing the settlement movement to go forward with subsidized government assistance and encouragement the Israeli government signaled its intention to never let go of control over ‘the promised land.’ Even if forced by geopolitical pressures to accept some kind of demilitarized Palestinian state, the obstacles involved in reversing the settlement dynamic in the West Bank and Jerusalem became more formidable with each passing month. Almost as tellingly, the internal Israeli reference points of ‘Judea and Samaria’ of the West Bank along with the unification and formal annexation of Jerusalem as the eternal capital of the Jewish people underscored the Zionist sense of biblical entitlement as the non-negotiable foundation of its claim rather than the mixture of legal, moral, and political considerations that formed the vision of both the consensus at the UN and the outlook project by ‘liberal Zionists’ in the Jewish diaspora (Khalidi, Brokers, 200-).
Secondly, the combinaton of releasing the Trump/Kushner plan and its embrace not only by Netanyahu, and the Likud Party, but by Gantz and Blue and White, clarifies two aspect of the overall situation that had been previously somewhat obscure: (1) present prospects of any form of political compromise to resolve the conflict by diplomacy between the parties are dead for the foreseeable future; (2) advancing the Palestinian struggle at this stage depends on sustaining the legitimacy war that uses all means available to react against Israeli lawlessness and immorality, including international judicial tribunals and the UN Human Rights Council and General Assembly (Falk, 2017), continuing various forms of Palestinian resistance to demonstrate that the struggle lives on within Palestinian society, and building momentum in global civil society by soft power means, currently most effectively expressed by the BDS Campaign.
In effect, the Palestinian struggle has shifted its center of gravity from its intergovernmental axes to that of the resistance and solidarity. In other words, the role of governments and international institutions, once dominant, is now discredited and subordinated. At some later stage of the conflict, if a balance more favorable to the protection of Palestinian rights is achieved or there is some kind of change of outlook in the United States and/or Israel, then there might again emerge a greater willingness to allow a diplomatic framework to help fashion a mutually acceptable political compromise, but with a major difference. The new diplomacy to have any chance of success in producing a sustainable peace arrangement, must proceed on the basis of the formal and existential equality of the parties, either relying on direct inter-governmental negotiations or by selecting a credibly neutral mediating framework.
This alternative more positive framework for conflict resolution not only depends on delegitimation, resistance, and solidarity, it also depends critically on a prior Israeli decision to dismantle the apartheid features of its state structures that now subordinate and victimize the Palestine people as a whole (including refugees, exiles, minority in pre-1967 Israel) on the basis of racial criteria (Falk & Tilley, 2017). Considering the similarities and dissimilarities with the South African experience is also illuminating. The changed balance achieved with respect to South African apartheid was largely achieved by resistance and solidarity initiatives, although unlike the Israel/Palestine conflict, aided by a globalized anti-apartheid campaign. It was a soft power triumph in the end, although that the threat and reality of armed struggle was never eliminated. In the end, the white leadership made a calculated decision that their interest would be better served by accepting what a decade earlier seemed a utopian impossibility—that is, a transition to a multiracial constitutional democracy, which the demographics made clear, would means that the long victimized African majority would control the political destiny of the country. The bargain, a kind of ‘genuine deal of the century’ was a tribute to the skills of Nelson Mandela and the leadership of de Klierk, that made the white minority take their chances based on guarantees of their economic and social rights. Mandela has been criticized for allowing the white to retain their privileged economic position and social status, but without such flexibility, any transition to post-apartheid South Africa would have been violent and bloody.
Although Israeli Zionists have genuine demographic concerns given the relative size and fertility rates of the two peoples, their prospects in a secular constitutional democracy for a large share of control over the institutions of governance would remain much more favorable to Jews, provided Jews would not abandon such a post-apartheid state and Palestinians would uphold the rights of the Jews if they were to gain control over the governing process. Undoubtedly, the situation would reflect the context, including geopolitical factors and the motivations, wisdom, and skills of the leadership on both sides.
What seems clear, whether the retreat from globalization deepens or is reversed, is that the preconditions of ending Israeli apartheid and accepting commitments to the substance and spirit of equality on both sides is essential to overcoming the present approach premised on a victory scenario combined with the spirit and substance of inequality, which will add to Palestinian suffering without achieving Israeli peace and security. In these circumstances, unlikely to be altered in the near future, the present pattern of control and encroachment will continue.
A Concluding Comment
The preceding analysis leads to the conclusion that the retreat from globalization is one factor in altering the nature of the Palestinian struggle, but may not in the end affect the outcome. In the immediate setting, it seems like a major setback for the Palestinians as the Israelis have unambiguous geopolitical support for their most extravagant claims, and there is no meaning countervailing power at either the regional or global levels. Yet in the post-colonial period, a long subjugated people do not give up their dreams of political independence and their grievances of rights denied, especially in the Palestinian as long endorsed by the UN and international public opinion. One development favoring the Palestinians, and evidently worrying the Israelis, is the increasing acceptance of the view that Israel maintains an apartheid structure of control over the Palestinian people and that the Israel needs to be perceived as the last remaining significant settler colonial state. This chance of discourse has been countered by branding activists and critics as ‘anti-Semites’ although their opposition to Israel is nonviolent and unrelated to hostility to Jews as a people, but to the Israeli state as depriving the majority resident population of its rights of self-determination and its overall human rights.
Each struggle has its own features, and this is particularly true in the case of Israel/Palestine. A crucial such distinguishing feature is that Israel managed to impose its political will on Palestine with the help of British colonial support, yet able to come to independence as a powerful manifestation of anti-colonial struggle by coercing not only the Palestinians, but making life untenable for the British (Kaplan, 2019). Of course, the last stage of the struggle to establish Israel in the face of Palestinian and Arab opposition were a series of developments in Europe favorable to the Zionist project, especially the moral sympathy arising from Nazi genocidal behavior and the liberal guilt of Europe and North America arising from their failure to challenge German murderous racism. These factors led to the premature legitimation of Israel in 1948, reaching its climax by admission to the United Nations without first resolving Palestinian grievances in a satisfactory manner. Such an attempt might not have succeeded in any event as the Palestinian side refused the idea of partitioning its homeland, and the Zionist side, although outwardly ready to strike a pragmatic bargain never gave up its vision of restoring sovereignty over the biblical homeland of the Jewish people.
Finally, the retreat from globalization is too new and contingent, to serve as a basis for anticipating the future as it impacts on the Israel/Palestine struggle. As suggested, present realities suggest that the situation seems to favor Israeli ambitions, but some factors could strengthen the Palestinian position overnight, such as the rejection of Trump in the 2020 American elections, the true unification of Palestinian leadership, or the shift toward democratic populism in the Arab world as foreshadowed by the 2011 uprisings. In the event of a restored spirit of globalization an early undertaking might be renewed attention to Palestinian grievances, and a resolve to take action to complete the policy agenda of decolonization and racial equality that dominated the last decades of the prior century .
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Tags: After Globalization, Daniel Piper, Netanyahu, Trump/Kushner Plan, Victory Scenario