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Israel’s Shimon Peres Reacts to the Turkish Elections

10 Jun

 

Newspapers reported on June 9th that former Israeli president Shimon Peres (2007-2014) was pleased by the outcome in Turkey. He is quoted as saying “I am happy about what happened in Turkey – Erdoğan wanted to turn Turkey into Iran, and there is no room for two Iran’s in the Middle East.”

 

It is worth recalling that the downward spiral in relations between Turkey and Israel started in a real way when Erdoğan attacked Israel and Peres personally for defending Israel’s massive attack on Gaza at the 2009 World Economic Forum in the course of a panel in which both he and Peres were members. Erdoğan responded to Peres’ contention that Hamas was responsible for violence against Israeli civilians. His words were undiplomatically blunt: “Mr. Peres, you are a senior citizen and you speak in a loud tone. I feel that your raised voice is due to the guilt you feel. But be sure that my voice will not be raised as yours is. When it comes to killing, you know very well how to kill. I know very well how you struck and killed innocent children on the beaches.” So piercing the haze that separates these polite evasions of such international events from the cruel realities under discussion was a welcome rarity: on this occasion Erdoğan was confronting the naked face of power with a truth that needed to be heard. After

interference from the chair, Erdoğan strode off the stage announcing that he was through forever with the World Economic Forum, not for allowing Peres to speak, but for the attempting to stifle a response.

 

The deterioration in Turkish/Israeli relations climaxed the following year when Israeli commandos boarded the Turkish passenger ship, Mavi Marmara, the lead vessel among six in a freedom flotilla containing peace activists bringing humanitarian supplies to Gaza and seeking to break the Israeli blockade. The incident on May 31, 2010 resulted in the death of nine Turkish nationals, and created an enduring rupture in the political relations between the two countries that continues despite efforts by the American president, Barack Obama, to encourage normalization. Turkey is prepared to compromise on the issues raised by the Mavi Marmara attack, but to its credit will not accept normalization until Israel lifts its blockade of Gaza and ceases its use of massive force against the totally vulnerable Gazan civilian population.

 

Erdoğan’s departure from diplomatic protocol at the World Economic Forum illustrated his impulsive tendency to vent his feeling in public places without the usual filters of self-censorship that is second nature for most politicians. Of course, assessing such outbursts generally depends on the context and on whether what is being said so forthrightly has merit or not. Erdoğan’s public venting in relation to policies that were sensitive for secular Turks became particularly frequent, intensifying polarization, especially after the AKP’s one-sided victory in the 2011 general election after which the Turkish leader did seem to embrace a more majoritarian view of democracy (acting on the mandate of the majority of voters), and abandoning the pragmatism of his earlier posture based on an acceptance of republican democracy (that is, respect for minority values and views, checks and balances on the exercise of state power).

 

Reverting to the recent Peres assertion, it is certainly inflammatory and deeply misleading to link Turkey under the AKP with Iran, and to contend that Erdoğan’s hidden project is to convert Turkey into a second Iran. This is both false and insulting, as if Turkey is incapable of self-determination according to the declared will of its own public and elected leaders. There exists no credible evidence that Turkey has in any way endorsed the defining feature of the Islamic Republic of Iran, namely, a theocratic mode of governance.

 

Peres also essentializes Iran, refusing to acknowledge its recent evolution as a result of Hassan Rouhani’s election as president in 2013 and Iran’s forthcoming nuclear diplomacy that went the extra mile in search of a formula that would normalize its regional and global relations, which if accepted by the West and put into practiced, will almost certainly be viewed as a major contribution to regional and world peace. Peres speaks as if Iran is the hermetically sealed embodiment of political evil rather than a country that has struggled to overcome its autocratic past under the Shah, and managed to be stable during this period of exceptional regional turmoil with its theocracy displaying a willingness to indulge a limited democracy despite threats and provocations from the United States and Israel. There is much to criticize in Iran, but for such criticism to be responsible, it should be responsive to actualities, especially in the Middle East where there are such scant grounds for stability, let alone justice.

 

In important respects, the outcome of the Turkish elections is far better interpreted as a Kurdish HDP victory rather than an Erdoğan AKP defeat. Time will tell whether the Kurds will be constructive and creative in this phase of their political engagement within Turkey and in relation to Kurdish political developments in neighboring countries. It will also determine whether Erdoğan is statesmanlike and creative in shaping the political future of the country, taking to heart the electoral message that any shift to a presidential system is not now in the interests of the country.

The Geopolitical Right of Exception at the United Nations

13 Apr

 

The notorious, yet influential, German jurist, Carl Schmitt famously insisted that ‘a right of exception’ was the core reality of national sovereignty. By this he meant that internal law could be put aside by ‘the sovereign,’ inhering as the crux of the relationship between state and society. In this regard international law has no overriding claim of authority with respect to sovereign states, at least from the perspective of statist jurisprudence. This discretion to ignore or violate law is distinct from submission to law as a realistic adaptation by weak states to political realities or compliance undertaken voluntarily for pragmatic reasons of convenience and mutual benefit.

 

When the UN was established, it was configured, to appeal both to realist minds who were eager to show that they had learned the lesson of Munich and to those architects of international cooperation that did not want the folly of the League of Nations, seen as a politically irrelevant sanctuary for utopians and dreamers to be repeated in this newly created organization. To achieve these ends the UN Charter vested only the UN Security Council with the power of decision (as distinct from recommendations), and limited its membership originally to nine states of which the five designated winners of World War II were given both permanent membership, and more importantly, a right of veto. In effect, the right of veto was a constitutional right of exception embedded in the UN Charter. It formulated the master procedural rule of the Charter as one that allowed permanent members of the Security Council to block any decision that was perceived to be sufficiently against their national interests or those of its friends. Just as Woodrow Wilson falsely misled the world with his pledge after World War I of ‘making the world safe for democracy’ the UN was more effectively manipulated into the actuality of ‘making the world safe for geopolitics.’

 

In effect, the UN was set up on the basis that it would never be strong enough to challenge these five major states, and that its effectiveness would rest on two possibilities: sustaining the voluntary cooperation that had worked successfully during World War II to thwart European fascism and Japanese imperialism or cooperating on issues of secondary concern in the peace and security area on which the permanent members could agree and persuade enough non-permanent term members to lend support. As was discovered several decades ago, these permanent members could only agree on what to do in the Security Council on the rarest of occasions, and that decisions relating to secondary issues, although often useful, left the really dangerous conflicts beyond the reach of the UN. The UN also committed itself to respect territorial sovereignty of its members, and by virtue of Article 2(7) of the Charter, placed all forms of civil strife beyond its writ unless the Security Council agreed that there were present substantial threats to international peace and security.

 

This constitutional right of exception to some extent contradicts the basic imperative of the Organization “to save succeeding generations from the scourge of war” that is set forth in the Preamble to the Charter. To the extent that major wars have been avoided during the lifetime of the UN it is not due to the efforts of the Organization. It is rather a consequence of deterrence, and geopolitical self-restraint and prudence, which were greatly encouraged by the awareness that any war fought with nuclear weapons would be a catastrophe regardless of which side prevailed. Major wars were prevented by a reliance on traditional notions of balance, containment, and countervailing power fine tuned for the realities of the nuclear age. These were realist instruments of statecraft associated with the European state system as adapted to the distinctive contemporary challenges. In the over 400 pages of his 2014 book, World Order, Henry Kissinger, the realist par excellence of this era, hardly mentions the UN, and accords it no significant role in shaping or even misshaping the ‘world order’ in the 21st century. The UN is simply seen as a diplomatic sideshow. He sees the present world order need to be primarily concerned with incorporating the non-Western major states, especially China, in an enlarged conception of a state system that is based on European ideas. For this process of incorporation to occur smoothly it will be essential that Westphalian logic of statism be newly perceived as reflecting the values and worldview of these diverse civilizations, and no longer be understood as an integral aspect of the Western world domination project.

 

Although the UN is a disappointment when it comes to ‘war prevention’ or the encouragement of a global rule of law, it has managed to achieve universality of membership. Unlike the League that failed to induce the United States to join and lost along the way several important members, the UN has neither expelled countries from its ranks nor have states withdrawn. The Organization has proved sufficiently useful as a site of diplomatic interaction and contestation that every government regardless of ideology or outlook finds it useful to participate in its activities. Even Israel that consistently complains loudly about the flawed and biased character of the UN, still tries with all its diplomatic ingenuity to influence its various activities in directions consistent with its foreign policy.

 

What has received too little attention so far is what I would call ‘the geopolitical right of exception’ that is quite distinct from the constitutional veto, but at least as pernicious from the perspective of enabling the UN to promote the human interest in its actions throughout the world. The geopolitical right of exception reflects the ability of one or more political actor in the world to promote or undermine policies that express its particular interest. In UN contexts the geopolitical right of exception allows a state to prevent the implementation of behavior that has been otherwise given formal approval. For instance, in the UN Human Rights Council there is no operative constitutional right of exception, and this allows certain steps to

be taken on the basis of majority approval. Yet when it comes to implementation or enforcement, acting behind the scenes, threatening funding cuts and actions for and against a high official, the political will of the Organization is effectively resisted and controlled. For instance, Israel despite ignoring strongly backed UN General Assembly resolutions dealing with such matters as refugees, Jerusalem, the separation wall, has been able to be defiant over the course of decades without experiencing any inter-governmental adverse consequences, and this is because it is protected by the United States exercise of its geopolitical right of exception on its behalf. The availability of such a geopolitical right is in direct proportion to the perceived hierarchy of hard and soft power in the world, which has meant that since World War II, the United States far more than any other political actor has enjoyed a geopolitical right of exception within the UN.

 

The existence of this geopolitical right of exception undermines the legitimacy and effectiveness of the UN. It is integral to regimes of double standards, and cuts directly against the grain of global justice that seeks to treat equals as equally as possible. It also implicitly endorses backroom strong arm tactics and procedural manipulation, as well as modifies and distorts the rights and duties of membership in the UN.

 

Overcoming the geopolitical right of exception would require its repudiation by the United States, in particular, through a recognition that its exercise is incompatible with the search for a peaceful, just, sustainable, and more participatory form of world order. Because it is often exercised invisibly, this geopolitical right is also a vehicle of influence relied upon by private sector corporate and financial interests that are contrary to the global public interest. At present, it seems hopelessly out of touch to expect any moves by the American and other powerful governments to forego the benefits of the geopolitical right of veto. Because its exercise is neither claimed nor acknowledged, there can be no accountability, thus operating in a manner that is contrary to the democratic spirit. The constitutional veto has the benefit of discourse and debate as various political actors try to offer convincing reasons for casting a veto to block a Security Council decision. For this very reason the geopolitical right of exception is often a more desirable option than the constitutional right if the policy or position being promoted is unpopular with public opinion and other governments. The U.S. Government struggles often behind the scenes at the UN to provide effective support for Israel in ways that get the job done without having to achieve such an unpopular result by a seemingly arbitrary reliance on its veto.

 

Unless a full-fledged world government were to be established, which seems slightly less likely than awarding the Nobel Peace Prize to Vladamir Putin, there is no prospect of any renunciation of the geopolitical right of exception at the UN in the foreseeable future. The best that can be hoped for is a recognition of its existence and role, some sort of greater self-restraint exhibited in its exercise, and critical commentary by those who conceive of their political identity as that of ‘citizen pilgrims.’

Iran’s Nuclear Program: Diplomacy, War, and (In)Security in the Nuclear Age

17 Mar

 

Perhaps, Netanyahu deserves some words of appreciation, at least from the Israeli hard right, for the temporary erasure of the Palestinian ordeal from national, regional, and global policy agendas. Many are distracted by the Republican recriminations directed at Obama’s diplomatic initiative to close a deal that exchanges a loosening of sanctions imposed on Iran for an agreement by Tehran to accept intrusive inspections of their nuclear program and strict limits on the amount of enriched uranium of weapons grade that can be produced or retained.

 

We can only wonder about the stability and future prospects of the United States if 47 Republican senators can irresponsibly further jeopardize the peace of the Middle East and the world by writing an outrageous Open Letter to the leadership of Iran. In this reckless political maneuver the government of Iran is provocatively reminded that whatever agreement may be reached by the two governments will in all likelihood be disowned if a Republican is elected president in 2016, or short of that, by nullifying actions taken by a Republican-controlled Congress. Mr. Netanyahu must be smiling whenever he looks at a mirror, astonished by his own ability to get the better of reason and self-interest in America, by his pyrotechnic display of ill-informed belligerence in his March 2nd address to Congress. Surely, political theater of sorts, but unlike a performance artist, Netanyahu is a political player whose past antics have brought death and destruction and now mindlessly and bombastically risk far worse in the future.

 

What interests and disturbs me even more than the fallout from Netanyahu’s partisan speech, are several unexamined presuppositions that falsely and misleadingly frame the wider debate on Iran policy. Even the most respected news sites in the West, including such influential outlets as the NY Times or The Economist, frame the discourse by taking three propositions for granted in ways that severely bias our understanding:

                        –that punitive sanctions on Iran remain an appropriate way to prevent further proliferation of nuclear weapons in the Middle East, and enjoyed the backing of the United Nations;

                        –that Iran must not only renounce the intention to acquire nuclear weapons, but their renunciation must be frequently monitored and verified, while nothing at all is done about Israel’s arsenal of nuclear weapons;

                        –that there is nothing intrinsically wrong about Irael’s threats to attack Iran if it believes that this would strengthen its security either in relation to a possible nuclear attack or in relation to Iran’s support for Hezbollah and Hamas.

 

 

 

 

SANCTIONS

 

Sanctions are a form of coercion expressly imposed in this case to exert pressure on Iran to negotiate an agreement that would provide reassurance that it was not seeking to acquire nuclear weaponry. Supposedly, Iran’s behavior made such a reinforcement of the nonproliferation treaty regime a reasonable precaution. Such measures had never been adopted or even proposed in relation to either Germany and Japan, the two main defeated countries in World War II, who have long possessed the technical and material means to acquire nuclear weapons in a matter of months. Iran has repeatedly given assurances that its nuclear program is peacefully aimed at producing energy and for medical applications, not weapons, and has accepted a willingness to have its nuclear program more regulated than is the case for any other country in the world.

 

It should be appreciated that Iran has not been guilty of waging an aggressive war for over 275 year. Not only has it refrained in recent years from launching attacks across its borders, although it has itself been severely victimized by major interventions and aggressions. Most spectacularly, the CIA-facilitated coup in 1953 that restored the Shah to power and overthrew a democratically elected government imposed a dictatorial regime on the country for over 25 years. And in 1980 Iraq invaded Iran with strong encouragement of the United States. Additionally, Iran has been subject over the years to a variety of Western covert operations designed to destabilize its government and disrupt its nuclear program.

 

Despite their UN backing, the case for sanctions seems to be an unfortunate instance of double standards, accentuated by the averted gaze of the international community over the years with respect to Israel’s process of acquisition, possession, and development of nuclear weaponry. This is especially irresponsible, given Israel’s behavior that has repeatedly exhibited a defiant attitude toward international law and world public opinion. I would conclude that Iran the imposition of harsh sanctions on Iran is discriminatory, more likely to intensify that resolve conflict. The proper use of international sanctions is to avert war or implement international law, and not as here to serve as a geopolitical instrument of hard power that seeks to sustain a hierarchical nuclear status quo in the region and beyond.

 

NUCLEAR WEAPONS OPTION

 

Iran is expected not only to forego the option to acquire nuclear weapons, but to agree to a framework of intrusive inspection if it wants to be treated as a ‘normal’ state after it proves itself worthy. As indicated, this approach seems discriminatory and hypocritical in the extreme. It would be more to the point to acknowledge the relative reasonableness of Iran’s quest for a deterrent capability given the extent to which its security and sovereignty have threatened and encroached upon by the United States and Israel.

It is relevant to note that the Obama presidency, although opting for a diplomatic resolution of the dispute about its nuclear program, nevertheless repeatedly refuses to remove the military option from the negotiating table. Israel does little to hide its efforts to build support for a coercive approach that threatens a preemptive military strike. Such an unlawful imprudent approach is justified by Israel’s belief that Iran poses an emerging existential threat to its survival if it should acquire weapons of mass destruction. Israel bases this assessment on past statements by Iranian leaders that Israel should not or will not exist, but such inflammatory rhetoric has never been tied to any statement of intention to wage war against Israel. To assert an existential threat as a pretext for war is irresponsible and dangerous.

 

From Iran’s perspective acquiring a nuclear weapons capability would seem a reasonable response to its security situation. If deterrence is deemed a security necessity for the United States and Israel, given their military dominance in conventional weaponry, it should be even more so for Iran that is truly faced with a genuine, credible, and dangerous existential threat. Few countries would become safer and more secure if in possession of nuclear weapons but Iran is one state that likely would be. Again what is at stake most fundamentally is the challenge to the nuclear oligopoly that has been maintained since the early stages of the Cold War when the Soviet Union broke the American nuclear monopoly. More immediately threatened if Iran were to acquire nuclear weapons at some future point is Israel’s regional nuclear weapons monopoly that serves both as a deterrent to others and helps clear political space for Israel’s expansionist moves in the region. I would not argue that Iran should acquire nuclear weapons, but rather that it has the strongest case among sovereign states to do so, and it is a surreal twist of realities to act as if Iran is the outlier or rogue state rather than the nuclear weapons states that refuse to honor their obligation set forth in Article VI of the NPT to seek nuclear disarmament in good faith at a time. The most urgent threat to the future in this period arises from the increasing risk that nuclear weapons will be used at some point to resolve an international conflict, and thus it should be a global policy imperative to demand efforts to achieve nuclear disarmament rather than use geopolitical leverage to sustain the existing hierarchy of states with respect to nuclear weaponry.

 

MILITARY THREATS

 

Israel’s military threats directed at Iran clearly violate the international law prohibition contained in Article 2(4) of the UN Charter that prohibit “threats or uses” of force except for self-defense against a prior armed attack or with an authorization by the Security Council. Despite this threat to international peace in an already turbulent Middle East, there is a widespread international acceptance of Israel’s behavior, and in fact, the most persuasive argument in favor of the sanctions regime is that it allays the concerns of the Israeli government and thus reduces the prospect of a unilateral military strike on Iran.

 

Conclusion

 

Overall, this opportunistic treatment of Iran’s nuclear program is less indicative of a commitment to nonproliferation than it is a shortsighted expression of geopolitical priorities. If peace and stability were the true motivations of the international community, then we would at least expect to hear strident calls for a nuclear free Middle East tied to a regional security framework. Until such a call is made, there is a cynical game being played with the complicity of the mainstream media. To expose this game we need to realize how greatly the three presuppositions discussed above misshape perceptions and discourse.  

 

 

 

 

 

 

Questioning Sweden’s ‘Bold’ Diplomatic Initiative

11 Oct

 

 

 

It was a welcome move, but only in some respects. The new center-left Swedish Prime Minister, Stefan Lofven, in his inaugural speech to Parliament indicated on October 3rd the intention of the Swedish government to recognize Palestinian statehood. He explained that such a move mentioned in the platform of his party is in accord with promoting a two-state solution, and more significantly, that is to be “negotiated in accordance with international law.” The call for adherence to international law in future diplomacy is actually more of a step forward than is the announced intention of future recognition, which has so far received all the media attention and incurred the wrath of Tel Aviv. To bring international law into future negotiations would amount to a radical modication of the ‘peace process’ that came into being with the Oslo Declaration of Principles in 1993. The Israel/United States view was to allow any agreements between the parties to arise from a bargaining process, which is a shorthand for acknowledging the primacy of power, taking account of ‘facts on the ground’ (that is, the unlawful settlements) and diplomatic leverage (allowing the United States to fake the role of ‘honest broker’ while at the same time making sure that Israel’s interests are protected).

 

I suspect that this hopeful language suggesting the relevance of international law was inserted without any awareness of its importance or relevance. Such an interpretation is in line with Swedish official explanations of their initiative as a way of helping ‘moderate’ Palestinian leaders gain control of diplomacy, thereby facilitating the eventual goal of mutual coexistence based on two states. It was presumed by Stockholm without any supportive reasoning, and against the weight of evidence and experience, that a Palestine state could emerge from a reinvigorated diplomacy. No mention was made of the settlements, separation wall, road network that have cut so deeply into the Palestinian remnant, which as of the 1967 borders was already 22% of historic Palestine, and less than half of what the UN partition plan had offered the Palestinians in 1947, which at the time seemed unfair and inconsistent with Palestinian rights under international law.

 

The United States Government spokesperson, Jan Paski, was careful to confirm the Oslo approach adopted by Washington that has been so harmful to Palestinian prospects for a viable state: “We certainly support Palestinian statehood, but it can come only through a negotiated outcome, a resolution of final status issues and mutual recognition by both parties.” Note the pointed absence of any reference to international law. Beyond this, there is less and less reason to suppose that the Israeli government supports a process that leads to Palestinian statehood in any meaningful sense, although Netanyahu repeats in international settings the sterile mantra of saying that any such results can only come from direct negotiations between the parties, and he adds the Swedish initiative if carried out, is declared to be an obstacle to such an outcome. So as not to arouse hopes, Netanyahu adds that no agreement will be reached that does not protect the national interests of Israel and ensure the security of Israeli citizens. When he speaks at home in Hebrew the prospect of a Palestinian state becomes as remote as the establishment of  world government.

 

Unsurprisingly, the head of Israel’s opposition Labor Party, Isaac Herzog, was active in reinforcing Netanyahu’s objection to Sweden’s proposed course of action. Herzog in conversation with Lofven sought to dissuade Sweden from acting ‘unilaterally,’ suggesting that such a move was likely to produce undisclosed ‘undesirable consequences.’ So much for the Israeli ‘peace camp’ that now seems content to act as errand boy for state policy as led by the right-wing Likud.

 

The Palestinian Authority, short on good news since the Gaza attacks, at its highest levels (Abbas, Erakat) greeted the Swedish move as ‘remarkable and courageous,’ as well as ‘great.’ The PA leadership even suggested that recognition of Palestinian statehood could build pressure for a resumption of talks on a two-state solution as if that would be beneficial for Palestine. Such sentiments turn a blind eye toward the Oslo record of failure from a Palestinian point of view, and quite the opposite for Israel.

 

What is the value of the Swedish proposed step, assuming that it takes place? Israel and the United States seemed poised to use full court pressure to persuade Sweden to delay indefinitely making the move, and Sweden has retreated to the extent that it has reassured the world that it is not planning to act ‘tomorrow morning’ and hopes to listen to the views of all interested governments and engage in dialogue before moving forward. At the same time, the British Parliament is set to vote on October 13 on a non-binding resolution urging recognition by Britain of Palestinian statehood.

 

Even proposing recognition of Palestinian statehood is definitely a psychological boost for the Palestinian Authority, but it changes nothing on the ground, and likely makes Israel take some defiant steps such as provocatively issuing permits for additional housing units in the settlements, which it did in 2012 as retaliation for Palestine’s successful bid to be recognized by the UN General Assembly as a non-member observer state (similar to the status enjoyed by the Vatican). Recognition also gives Palestine potential access to the International Criminal Court, which again worries Israel as it should, although the Palestinian Authority has so far held back from seeking to become a party to the ICC, and by so doing gain the capacity to request the prosecutor to investigate various allegations of Israeli war crimes, including the settlements.

 

In international law diplomatic recognition by states has been traditionally viewed as largely a matter of discretion. The United States withheld recognition from mainland China for decades after it had consolidated its governmental control over the territory and its population. Palestine has been long recognized by at least 125 states, and enjoys diplomatic relations as if a state. UN membership presupposes statehood, but it is also highly politicized and subject to the veto by any permanent member of the Security Council. Indications are that, if necessary, the United States will stand alone in using its veto to block Palestine from becoming a member.

 

But why does Israel care so much as nothing changes on the ground? There would seem to be three reasons, none very persuasive. Firstly, since Palestine badly wants to be a sovereign state and a UN member, it would make further concessions to Israel to obtain such a status in the event of further negotiations. Secondly, Israel seems eager to have the formal capacity to deny Palestinian statehood in a full sense so as to allow for the future likely incorporation the West Bank into Israel when the opportune moment arrives. This is a course of action favored by the recently elected Israeli president, Reuven Rivlin, who offers Palestinians a supposedly benevolent ‘economic peace’ in exchange if they swallow their political pride. Thirdly, recognition might give the Palestinian Authority more leverage at the UN and the ICC, and self-esteem in Palestinian circles, especially if other European Union members to follow the Swedish example. At some point down the line Israel’s prolonged occupation of Palestine would under these conditions come under increasing legal, moral, and political fire.

 

Yet from the perspective of the Palestinian people as distinct from the Palestinian Authority, does it make sense at this stage in their struggle to continue to act as if the two-state solution could still bring peace? Israel’s feverish settlement activity of recent years seems to be a clear message that a viable sovereign Palestinian state is no longer in the cards. In fact, Sweden seems to be playing the Oslo game after the game has ended for all practical purposes.

 

In other words, if Sweden’s act of recognition had been linked to Oslo’s failure it would be pointing the way toward a constructive turn in peace diplomacy, but to justify it as a step toward the two-state solution achieved by direct negotiations of the sort that has failed repeatedly for more than 20 years seems an ill-considered expression of political innocence on the part of the inexperienced new leadership in Stockholm, a gesture for peace undoubtedly meant in good faith, but seemingly without any awareness that the sick patient died years ago.

 

An Open Letter to Rabbi Ira Youdovin

11 Sep

(Prefatory Note: Rabbi Youdovin has written a lengthy response in the form of a comment, which I now append here so that readers of the post can judge for themselves the nature of our disagreements, and reach their own conclusions.)

 

 

An Open Letter to Rabbi Ira Youdovin:

 

We have exchanged views frequently in the last few years, most often by way of adversary comments written in reaction to posts published on this website. I write now a post in the form of an ‘open letter’ because I think your most recent comment objecting to my support for Steven Salaita in his campaign to have his tenure faculty appointment reinstated in the American Indian Studies Department at the Urbana-Champaign campus of the University of Illinois. Phyllis Wise, the Chancellor, now with the formal approval of the Board of Trustees, refused to forward the appointment to Board, because of private tweets highly critical of Israel that she relied upon for making a unilateral decision that Salaita would be a disruptive presence on campus and that someone holding such strong views would likely make Jewish students in courses he offered uncomfortable. She later clarified her decision as prompted by the realization that the Board under pressure from university donors would have rejected the appointment in any event and admitted that she should have consulted further before reaching her decision. I indicated my view that not only should Salaita be reinstated, but also he deserved a formal apology from the chancellor and reimbursement for damages sustained, including to his academic reputation.

 

Our most fundamental disagreement is exhibited by the opening sentences of your comment responding to my earlier post suggesting that the dehiring of Salaita amounted to an assault on academic freedom and freedom of expression. You start your comment this way: “The Salaita case is not about free speech. It’s about hate speech. The examples of Salaita’s comments cited by Prof. Falk constitute a carefully collected and unrepresentative sample of the dozens on record.” You go on to choose tweets that you find more offensive than those contained in my post:

 

“More typical of his “body of work” are:

“Fuck you, Israel. And while I’m at it, fuck you, too, PA, Sisi –

“The IDF spokesperson is a lying motherfucker.”

“If you’re defending Israel right now you’re an awful human being.”

“If Netanyahu appeared on TV wearing a necklace made from the teeth of Palestinian children, would anyone be surprised?”

 

Actually, the last of your examples was among those that I included in my post, but this is a minor quibble. My real disagreement centers on your insistence that the Salaita case “is not about free speech. It’s about hate speech.” There is no doubt that these tweets are instances of extreme invective, making use of profane language, but are they properly construed as ‘hate speech’? I would hope not. These tweets, which were not expressed in the language of the dinner table or polite parlor conversation, are directed at Israel, not Jews as a people or Jews as individuals. Israel is a state. The state is an abstraction. You cannot hate an abstraction except as a language trope. If I shout “I hate the color brown” or “fuck all brown cars” it would be absurd to consider this kind of emotive language as hate speech. The same distinction should hold in speech on matters of political opinion.

 

It is here where the essential controversy between us lies. Israel’s first defenders seek to make everyone feel that Israel as a self-proclaimed Jewish state is, in effect, the personification of the Jewish people, and that using profane language of criticism about the state amounts to hate speech. Such efforts to personify the state are themselves destructive of democratic discourse, and do impact upon academic freedom as well as muddy the waters as to the character of anti-Semitism. To be angry at a state may reveal an intemperate personality, perhaps even extreme alienation, but by itself has not ventured into the forbidden domain of hate. And many of us, including Steven Salaita, draw a sharp line separating our attitudes toward Israel as a state and the Jewish people as a people.

 

Let us choose a clear example to highlight the point. To hate Nazi Germany became not only an accepted attitude, but surely the politically correct position during and after World War II. To extend that hate, however, to the German people crosses the dangerous line, and to treat a particular German as automatically of Nazi persuasion would similarly be hateful. There has been useful debate as to what extent the German people went along with Hitler’s Nazi program, especially occasioned by Daniel Goldhagen’s challenge directed at the claim that ordinary Germans were unawares of the fate befalling the Jewish people. [See his Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (1997)].

 

I recall my own experience in North Vietnam in June 1968, in the midst of the Vietnam War, when person after person, whether a peasant in the countryside or a high official in Hanoi, told me that they hated the American government but had positive feelings toward the American people. They attributed this sentiment to the teaching of Ho Chi Minh, the revered Communist leader of their national movement, but it was said with such heartfelt sincerity by the people I met in Vietnam as to make me aware of the deficiencies of American political culture that routinely conflates an enemy state with the citizenry of the country. Such a lethal confusion may reflect the survival of racialism, and be one of the continuing costs imposed by the terrible heritage of slavery, which was also accentuated by the genocidal treatment of the indigenous population of North America by the early generations of settler colonialists. The Zionist conflation works in the opposite direction, insisting that those who challenge Israel beyond a certain moderate point are racists, a species of anti-Semite, however much they protest against the derogatory label.

 

More to the point, expressing anger toward Israel seems well within the protected boundaries of free speech, and so the only reasonable question is one of tone, including the use of profanity to express such anger, and its relevance to academic performance. As Salaita himself explained, his tweets were mainly written in the context of the recent Israeli massacre of Palestinian civilians, including over 500 children, during a period of acute frustration undoubtedly heightened by the sense that his own government here in the United States was mindlessly supportive of what Israel was doing to a vulnerable and entrapped civilian population.

 

It is also relevant to know whether the tweets should be taken as an ominous indicator of how Salaita would behave in the classroom and within the university community. On the basis of abundant testimony from colleagues and former students, as well as Salaita own very clearly articulated views, there is every reason to be confident that he would welcome and treat fairly diverse viewpoints with respect and sensitivity, including those supportive of Israel’s behavior. It is also is helpful to know that in the course of his six published books on a variety of topics involving the abuses experienced by marginalized peoples, including Palestinians, there is no hint of racism or indulgence in hate speech as an acceptable response. Quite the contrary, there is a rejection of all forms of profiling whether of the oppressor or the oppressed.

 

Of course, an accusation of hate speech in the context of criticizing Israel has as its objecting the implication that the speaker is guilty of genuine anti-Semitism. As I have tried to argue in a recent post [Sept. 1, 2014], Zionist propaganda seeks to merge anti-Israelism, denominated as a form of racial bigotry, with anti-Semitism as hatred of Jews and the Jewish people. The widespread deliberate use of this technique by organized Zionist forces in the United States is convincingly documented in The Battle for Justice in Palestine (Chicago: Haymarket, 2014), 125-225 by Ali Abunimah. It forms part of the wider Israeli effort to defend a rising tide of anti-Israeli student activism on American university campuses, and more broadly what Israeli think tanks call ‘the delegitimation project’ associated with such initiatives as the BDS campaign.

 

I found your gratuitous swipe at the Palestinian quest for national heroes particularly nasty and unjustified. You make this strange assertion: “The Palestinians and their supporters are woefully short on heroes. The five most often mentioned—Arafat, Saladin, Gandhi, Mandela, and Martin Luther King are dead. Moreover, three weren’t Arabs and only one was a Palestinian.”

 

I have been around Palestinians for a long time and I find this statement out of touch. Aside from Arafat, who is controversial even among Palestinians, and Mandela, who is invoked quite often as an inspirational figure, the other three are only rarely, if at all, mentioned. Much more appreciated as heroes by Palestinians is Archbishop Tutu of South Africa, and to a lesser extent, Jimmy Carter, both of whom are very much alive and remain engaged. Most surprisingly your list omits Edward Said and Mahmoud Darwish, both Palestinians and by far the most influential members of the Palestinian pantheon of heroes, and among the most eloquent of anti-colonial resistance voices who have ever set foot on planet earth.

 

Yes, Steven Salaita is a casualty of the long struggle to achieve Palestinian rights, and a victim of what I have called Zionist McCarthyism, but hopefully never a martyr to the cause. When you mock his passion with the demeaning words, “what kind of honest discussion could emerge from his obscene adolescent ranting?” Rabbi Youdovin, Salaita was certainly not seeking ‘honest discussion’ by sending these tweets to friends and followers, but expressing his righteous disgust about what was happening to the people of a shared ethnicity, and what you dismiss as “obscene adolescent ranting” others, including myself, hear as screams of pain and anguish. There are times and places for honest discussion, and there are times and places for screams of pain and anguish.

 

If we yearn for a world more dedicated to peace and justice, and more focused on human survival, we all need to learn to listen with our hearts as well as our heads. I find that both modes of communication have their role, and we harm our civic life as a country if we reject the relevance of screams of discontent and insist that only reasoned discourse has value.

.

 

Sincerely,

 

 

Richard Falk

 

 

*******************************

In his “Open Letter to Rabbi Ira Youdovin”, Prof Falk brands me as being among the viscous Zionists determined to ruin Steven Salaita’s career. As night follows day, the Blog Faithful pile on. One writes, “Rabbi Ira Youdovin’s views and behaviours are identical to some “mullahs” inside Iran, whose “morality” is: “The end justifies the means.” I feel sorry for Judaism.” Kata Fisher, in one of her “Reflections”, denounces me as being tunder the power of Satan and warns that I’ll be Judged, (In this and other matters, Ms. Fisher fancies herself as having a direct line to the mind of the Almighty.) But she also provides an unintentional dose of humor. Noting my frequent exchanges with Prof. Falk, she condemns me for inflicting “psychological abuse toward elderly person like that.” I’m not sure that the professor delights in being characterized as an emotionally fragile old geezer.
This is pretty scary stuff, being accused of trying to destroy a promising young scholar’s career, compared unfavorably to the Iranian mullahs and condemned to eternal damnation. The blogosphere is not always friendly place. But Prof. Falk’s blog is an especially rough neighborhood. So before I’m consumed in the fires of hell, please join me in talking a look (or second look) \at what I actually wrote.

I made a total of two posts regarding Prof. Salaita. They can be found in the two threads preceding this one. For those who don’t want to do the scrolling, here are the relevant
excerpts:
1/
“The Salaita case is not about free speech….This was not a one-time temper tantrum that might be dismissed as a momentary lapse. This is a university professor who repeatedly sounds like a potty-mouthed teenage punk. And unlike the teenager who likely is content to walk down the street muttering to himself until his anger subsides, Salaita wanted to share his animus with anybody within tweeting range.”

“I can’t make a judgment on the Salaita episode because I don’t know the inside story.”

2/
“As I posted yesterday, I won’t get into the controversy over whether Salaita’s firing is justified. I know little about the rules governing academic freedom. And, truth be told, I have more than a little sympathy for the plight of his family with neither income nor health insurance. Were it up to me, a simple apology—one that would focus on his tactics and not demanding that he renounce his underlying convictions—would have sufficed to merit reinstatement. “

“Please note that I take no position on the propriety of the university withdrawing its job offer. But although it has no relevance to the case, I am appalled by Salaita’s language. Standards on social media may not be the same as in the classroom. (Apparently, civility in their public statements is no longer expected from college teachers.) But to my mind, someone capable of an extended and profane rant of this nature directed at anything or anyone is a questionable candidate for any faculty.”

That doesn’t sound all that bad, does it? My focus is on Prof. Salaita’s language, not his ideas. I plead guilty to being committed to linguistic civility. But so was Prof. Falk until he ran into an obscenity tweeting Palestinian and changed the rules governing civility on this blog. Moreover, I clearly state that my has no relevance to his dispute with the U of Illinois. In other words, I’m not advocating anything in regard to Prof. Salaita’s job, other than saying that he merits re-instatement , and expressing my regret over the mutual failure to work things out, which likely could have been done with a little flexibility on both sides. Prof. Falk and his cohorts got their martyr, and Prof. Salaita lost his job. Doesn’t seem like a fair trade, but that’s not my decision to make.

So how do I wind up in Prof. Falk’s doghouse? The answer entails a wild adventure in sophistry and demagoguery.

Prof. Falk begins by disputing my assessment of Prof. Salaita’s tweets as hate speech. Full disclosure: having served for several years on the Illinois Governor’s Commission on Discrimination and Hate Crime, I’m aware that there are a variety of legal definitions of what constitutes hate speech, and that Prof. Salaita’s tweets do not cross the threshold prescribed by some of them. Had this been Prof. Falks objection, I would have acknowledged the error and adjusted my statement accordingly.

But Prof. Falk had something else in mind. His thesis is that Prof. Salaita’s anger not is directed at human beings—Jewish, Israeli or otherwise—but at the State of Israel. States, he argues, are abstractions, like the color brown; and nobody would construe the statement “fuck the color brown” as hate speech. Consequently, Prof. Salaita’s tweeting obscenities like “fuck you” and calling someone a “motherfucker” cannot be hate speech because he’s addressing an abstraction, like the color brown. I suspect this arcane theory comes as a surprise to Prof. Salita who personalized his tweets by specifically calling out the IDF’s spokesman a “motherfucker”, and imaging Israel’s prime minister as appearing on television wearing a necklace of a Palestinian children’s teeth.

Not being a lawyer, I’ll accept Prof. Falk’s word that the state is regarded as an abstraction in the rarefied circles of international law faculties . But in the real world—the world in which Steven Salaita and the rest of us live—the state is not in the same category as the color brown . For one thing, the color brown is not engaged in an often violent conflict with Prof. Salaita’s people. His hatred may be understandable, but it is hatred nevertheless. As a non-lawyer, I base this conclusion on the prosaic, but familiar “Duck Test”: if it quacks like a duck, waddles like a duck and looks like a duck, etc…”

This is another of those inconvenient truths that rise up to bedevil Prof. Falk in his determination to delete, deny or explain away every Palestinian failing. Regrettably, the way he handles this one is pure, unadulterated sophistry.

I won’t deal with Prof. Falk’s allusion to Nazi Germany because, frankly, I don’t understand it. I agree that it was/is wrong to blame all Germans for the Nazi atrocities. But that’s not because Germany is an abstraction. It’s because the German wartime population encompassed a diversity of opinions on, and knowledge of what was happening. This is precisely what Prof. Falk demonstrates in citing Goldhagen’s book (although I don’t understand why he chose to cite a controversial book to prove a self-evident point, particularly at a time when Hannah Arendt’s theory about the ”banality of evil” is again under serious attack.)

But more importantly, at whom is Prof. Falk’s rebuke directed? All I did was criticize Prof. Salaita’s use of profanity. That’s one person, not a population. According to Prof. Falk’s theory, Prof. Salaita would be a more appropriate target. He’s cursing an abstraction called Israel, which includes many Israelis who dissent from the Likud government’s policies. But that can’t be. Hate speech hurled at a state cannot be hate speech, just as hate speech hurled at the color brown cannot be hare speech. So we go round and round. Prof. Falk often accuses me of misrepresenting or misconstruing his positions. So I’ll leave this one with a big question mark.

Now we come to a great leap of illogic which takes us from the realm of sophistry to the realm of demagoguery. Having (erroneously!) concluded that Prof. Salaita’s remarks could not constitute hate speech, Prof. Falk proceeds to roll out his theory of why I think it does: “Israel’s first defenders [that’s me!] seek to make everyone feel that Israel as a self-proclaimed Jewish state is, in effect, the personification of the Jewish people, and that using profane language of criticism about the state amounts to hate speech…Of course, an accusation of hate speech in the context of criticizing Israel has as its objecting the implication that the speaker is guilty of genuine anti-Semitism.”

Where does this come from? I make no mention of anti-Semitism. Nor do I imply that any is a factor. To the contrary, I’ve repeatedly stated on this blog and elsewhere that criticism of Israel, even harsh criticism, does not necessarily reflect anti-Semitism. I have no idea of Prof. Salaita’s attitudes toward Jews And I did say that he merits reinstatement. But Prof. Falk deliberately ignores these not incidental realities. In his view, all criticism of Israel’s critics implies an accusation of anti-Semitism. This is outrageous stereotyping. Indeed, it’s demagogic. Faced with a set of problematic tweets, Prof. Falk asserts an elaborate and totally inaccurate rendition of my beliefs as a ploy to deflect attention from the evidence at hand. As they say in (American) football: a good offense is the best defense.

But to those of us smeared by Prof. Falk’s evasive tactics, his offense is offensive.
The saddest part of this episode is that when the dust clears, it will become apparent that the melee was not over free speech, but over the propriety of a professor’s use of obscenity which added nothing to his message but cost him his job, while his cheerleaders returned to their secure jobs and comfortable homes. Yes, Prof. Falk, those undeleted expletive were screams of pain and anguish. But aren’t there better, indeed more effective ways of expressing these same emotions, ways that do not draw attention away from the thoughts and emotions being expressed by making the words, themselves, the main attraction…ways that do not drive people apart by demonizing one side or the other? And shouldn’t we look to our intellectuals, young and old, to lead the way in developing this more civilized language?

Rabbi Ira Youdovin

 

  

                       

Joint Declaration by International Law Experts on Israel’s Gaza Offensive

28 Jul

(Prefatory Note: Posted here is a Joint Declaration of international law experts from around the world who are listed below as endorsers. I am among the endorsers, and the text was initially drafted by several international law scholars. We welcome additional signatures that can be sent to me in the comments section, with affiliation noted for identification, and names will be periodically added to the text. I view this as an important expression of professional judgment and individual conscience relating to Israeli behavior in Gaza commencing on 8 July that has already taken so many innocent lives and caused such widespread devastation. Please join us and spread the word!)  

The International Community Must End Israel’s Collective Punishment of the Civilian Population in the Gaza Strip

As international and criminal law scholars, human rights defenders, legal experts and individuals who firmly believe in the rule of law and in the necessity for its respect in times of peace and more so in times of war, we feel the intellectual and moral duty to denounce the grave violations, mystification and disrespect of the most basic principles of the laws of armed conflict and of the fundamental human rights of the entire Palestinian population committed during the ongoing Israeli offensive on the Gaza Strip. We also condemn the launch of rockets from the Gaza Strip, as every indiscriminate attack against civilians, regardless of the identity of the perpetrators, is not only illegal under international law but also morally intolerable. However, as also implicitly noted by the UN Human Rights Council in its Resolution of the 23th July 2014, the two parties to the conflict cannot be considered equal, and their actions – once again – appear to be of incomparable magnitude.

Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL), who is in the eye of the storm. Gaza’s civilian population has been victimized in the name of a falsely construed right to self-defence, in the midst of an escalation of violence provoked in the face of the entire international community. The so-called Operation Protective Edge erupted during an ongoing armed conflict, in the context of a prolonged belligerent occupation that commenced in 1967. In the course of this ongoing conflict thousands of Palestinians have been killed and injured in the Gaza Strip during recurrent and ostensible ‘ceasefire’ periods since 2005, after Israel’s unilateral ‘disengagement’ from the Gaza Strip. The deaths caused by Israel’s provocative actions in the Gaza Strip prior to the latest escalation of hostilities must not be ignored as well.

According to UN sources, over the last two weeks, nearly 800 Palestinians in Gaza have been killed and more than 4,000 injured, of whom the vast majority were civilians. Several independent sources indicate that only 15 per cent of the casualties were combatants. Entire families have been murdered. Hospitals, clinics, as well as a rehabilitation centre for disabled persons have been targeted and severely damaged. During one single day, on Sunday 20th July, more than 100 Palestinian civilians were killed in Shuga’iya, a residential neighbourhood of Gaza City. This was one of the bloodiest and most aggressive operations ever conducted by Israel in the Gaza Strip, a form of urban violence constituting a total disrespect of civilian innocence. Sadly, this was followed only a couple of days later by an equally destructive attack on Khuza’a, East of Khan Younis.

Additionally, the offensive has already caused widespread destruction of buildings and infrastructure: according to the UN Office for the Coordination of Humanitarian Affairs, over 3,300 houses have been targeted resulting in their destruction or severe damage.

As denounced by the UN Fact-Finding Mission (FFM) on the Gaza conflict in the aftermath of Israel’s ‘Operation Cast Lead’ in 2008-2009: “While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: The people of Gaza as a whole” (A/HRC/12/48, par. 1680). The same can be said for the current Israeli offensive.

The civilian population in the Gaza Strip is under direct attack and many are forced to leave their homes. What was already a refugee and humanitarian crisis has worsened with a new wave of mass displacement of civilians: the number of IDPs has reached nearly 150,000, many of whom have obtained shelter in overcrowded UNRWA schools, which unfortunately are no safe areas as demonstrated by the repeated attacks on the UNRWA school in Beit Hanoun. Everyone in Gaza is traumatized and living in a state of constant terror. This result is intentional, as Israel is again relying on the ‘Dahiya doctrine’, which deliberately has recourse to disproportionate force to inflict suffering on the civilian population in order to achieve political (to exert pressure on the Hamas Government) rather than military goals.

In so doing, Israel is repeatedly and flagrantly violating the law of armed conflict, which establishes that combatants and military objectives may be targeted, i.e. ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ Most of the recent heavy bombings in Gaza lack an acceptable military justification and, instead, appear to be designed to terrorize the civilian population. As the ICRC clarifies, deliberately causing terror is unequivocally illegal under customary international law.

 

In its Advisory Opinion in the Nuclear Weapons case, the ICJ stated that the principle of distinction, which requires belligerent States to distinguish between civilian and combatants, is one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law”.

 

The principle of distinction is codified in Articles 48, 51(2) and 52(2) of the Additional Protocol I of 1977 to the 1949 Geneva Conventions, to which no reservations have been made. According to Additional Protocol I, “attacks” refer to “acts of violence against the adversary, whether in offence or in defence” (Article 49). Under both customary international law and treaty law, the prohibition on directing attacks against the civilian population or civilian objects is absolute. There is no discretion available to invoke military necessity as a justification.

 

Contrary to Israel’s claims, mistakes resulting in civilian casualties cannot be justified: in case of doubt as to the nature of the target, the law clearly establishes that an object which is normally dedicated to civilian purposes (such as schools, houses, places of worship and medical facilities), are presumed as not being used for military purposes. During these past weeks, UN officials and representatives have repeatedly called on Israel to strictly abide by the principle of precaution in carrying out attacks in the Gaza Strip, where risks are greatly aggravated by the very high population density, and maximum restraint must be exercised to avoid civilian casualties. HRW has noted that these rules exist to minimize mistakes “when such mistakes are repeated, it raises the concern of whether the rules are being disregarded.”

 

Moreover, even when targeting clear military objectives, Israel consistently violates the principle of proportionality: this is particularly evident with regard to the hundreds of civilian houses destroyed by the Israeli army during the current military operation in Gaza. With the declared intention to target a single member of Hamas, Israeli forces have bombed and destroyed houses although occupied as residencies by dozens of civilians, including women, children, and entire families.

 

It is inherently illegal under customary international law to intentionally target civilian objects, and the violation of such a fundamental tenet of law can amount to a war crime. Issuing a ‘warning’ – such as Israel’s so-called roof knocking technique, or sending an SMS five minutes before the attack – does not mitigate this: it remains illegal to wilfully attack a civilian home without a demonstration of military necessity as it amounts to a violation of the principle of proportionality. Moreover, not only are these ‘warnings’ generally ineffective, and can even result in further fatalities, they appear to be a pre-fabricated excuse by Israel to portray people who remain in their homes as ‘human shields’.

 

The indiscriminate and disproportionate attacks, the targeting of objectives providing no effective military advantage, and the intentional targeting of civilians and civilian houses have been persistent features of Israel’s long-standing policy of punishing the entire population of the Gaza Strip, which, for over seven years, has been virtually imprisoned by Israeli imposed closure. Such a regime amounts to a form of collective punishment, which violates the unconditional prohibition set forth in Article 33 of the Fourth Geneva Convention and has been internationally condemned for its illegality. However, far from being effectively opposed international actors, Israel’s illegal policy of absolute closure imposed on the Gaza Strip has relentlessly continued, under the complicit gaze of the international community of States.

 

***

As affirmed in 2009 by the UN Fact Finding Mission on the Gaza Conflict: “Justice and respect for the rule of law are the indispensable basis for peace. The prolonged situation has created a justice crisis in the Occupied Palestinian Territory that warrants action” (A/HRC/12/48, para. 1958) Indeed: “long-standing impunity has been a key factor in the perpetuation of violence in the region and in the reoccurrence of violations, as well as in the erosion of confidence among Palestinians and many Israelis concerning prospects for justice and a peaceful solution to the conflict”. (A/HRC/12/48, para. 1964)

Therefore,

 

  • We welcome the Resolution adopted on 23 July 2014 by the UN Human Rights Council, in which an independent, international commission of inquiry was established to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory.

 

  • We call upon the United Nations, the Arab League, the European Union, individual States, in particular the United States of America, and the international community in its entirety and with its collective power to take action in the spirit of the utmost urgency to put an end to the escalation of violence against the civilian population of the Gaza Strip, and to activate procedures to hold accountable all those responsible for violations of international law, including political leaders and military commanders. In particular:
  • All regional and international actors should support the immediate conclusion of a durable, comprehensive, and mutually agreed ceasefire agreement, which must secure the rapid facilitation and access of humanitarian aid and the opening of borders to and from Gaza;
  • All High Contracting Parties to the Geneva Conventions must be urgently and unconditionally called upon to comply with their fundamental obligations, binding at all times, and to act under common Article 1, to take all measures necessary for the suppression of grave breaches, as clearly imposed by Article 146 and Article 147 of the Fourth Geneva Convention; these rules are applicable by all interested parties as well;
  • Moreover, we denounce the shameful political pressures exerted by several UN Member States and the UN on President Mahmoud Abbas, to discourage recourse to the International Criminal Court (ICC), and we urge the Governmental leaders of Palestine to invoke the jurisdiction of the ICC, by ratifying the ICC treaty and in the interim by resubmitting the declaration under Article 12(3) of the Rome Statute, in order to investigate and prosecute the serious international crimes committed on the Palestinian territory by all parties to the conflict; and
  • The UN Security Council must finally exercise its responsibilities in relation to peace and justice by referring the situation in Palestine to the Prosecutor of the ICC.

 

 

***

 

Please note that institutional affiliations are for identification purposes only.

 

 

  1. John Dugard, Former UN Special Rapporteur on human rights situation in the Occupied Palestinian Territory
  2. Richard Falk, Former UN Special Rapporteur on human rights situation in the Occupied Palestinian Territory
  3. Alain Pellet, Professor of Public International Law, University Paris Ouest, former Member of the United Nations International Law Commission, France
  4. Georges Abi-Saab, Emeritus Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Former Judge on the ICTY
  5. Vera Gowlland-Debbas, Emeritus Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
  6. Chantal Meloni, Adjunct Professor of International Criminal Law, University of Milan, Italy (Rapporteur, Joint Declaration)

 

 

  1. Roy Abbott, Consultant in International Humanitarian Law and International Human Rights Law, Australia
  2. Lama Abu-Odeh, Law Professor, Georgetown University Law Center, USA
  3. Susan M. Akram, Clinical Professor and supervising attorney, International Human rights Program, Boston University School of Law, USA
  4. Taris Ahmad, Solicitor at Jones Day, London, UK
  5. Maria Anagnostaki, PhD candidate, Law School University of Athens, Greece
  6. Antony Anghie, Professor of Law, University of Utah, USA
  7. Nizar Ayoub, Director, Al-Marsad, Arab Human Rights Centre in Golan Heights
  8. Valentina Azarov, Lecturer in Human Rights and International Law, Al Quds Bard College, Palestine
  9. Ammar Bajboj, Lecturer in Law, University of Damascus, Syria
  10. Samia Bano, SOAS School of Law, London, UK
  11. Asli Ü Bali, Professor of Law, UCLA School of Law, USA
  12. Jakub Michał Baranowski, Phd Candidate, Universita’ degli Studi Roma Tre, Italy
  13. Frank Barat, Russell Tribunal on Palestine
  14. Emma Bell, Coordinator of the European Group for the Study of Deviance and Social Control, Université de Savoie, France
  15. Barbara Giovanna Bello, Post-doc Fellow, University of Milan, Italy
  16. Brenna Bhandar, Senior lecturer in Law, SOAS School of Law, London, UK
  17. George Bisharat, Professor of Law, UC Hastings College of Law, USA
  18. Barbara Blok, LLM Candidate, University of Essex, UK
  19. John Braithwaite, Professor of Criminology, Australian National University, Australia
  20. Michelle Burgis-Kasthala, lecturer in international law, University of Edinburgh, UK
  21. Eddie Bruce-Jones, Lecturer in Law, University of London, Birkbeck College, UK
  22. Sandy Camlann, LLM Candidate, Université Paris Ouest Nanterre La Défense, France
  23. Grazia Careccia, Human Rights Advocate, London, UK
  24. Baris Cayli, Impact Fellow, University of Stirling, UK
  25. Antonio Cavaliere, Professor of Criminal Law, University Federico II, Naples, Italy
  26. Kathleen Cavanaugh, Senior Lecturer, Irish Center for Human Rights, National University of Ireland, Galway, Ireland
  27. Elizabeth Chadwick, Reader in International Law, Nottingham, UK
  28. Donna R. Cline, Attorney at Law, USA
  29. Karen Corteen, Senior Lecturer in Criminology, University of Chester, UK
  30. Andrew Dahdal, Lecturer, Faculty of Business and Economics, Macquarie University, Sydney, Australia
  31. Teresa Dagenhardt, Reader in Criminology, Queen’s University Belfast, Northern Ireland
  32. Luigi Daniele, PhD candidate in Law, Italy
  33. Alessandro De Giorgi, Professor of Justice Studies, San Josè State University, USA
  34. Paul de Waart, Professor Emeritus of International Law, VU University, Amsterdam, The Netherlands
  35. Gabriele della Morte, Senior Lecturer in International Law, University Cattolica, Milan, Italy
  36. Max du Plessis, Professor of Law, University of Kwazulu-Natal, and Barrister, South Africa and London, UK
  37. Noura Erakat, Georgetown University, USA
  38. Mohammad Fadel, Associate Professor of Law, University of Toronto Faculty of Law, Canada
  39. Mireille Fanon-Mendés France, Independent Expert UNO, Frantz Fanon Foundation, France
  40. Michelle Farrell, lecturer in law, School of Law and Social Justice, University of Liverpool, UK
  41. Daniel Feierstein, Professor and President International Association of Genocide Scholars (IAGS), Argentina
  42. Eleonor Fernández Muñoz, Costa Rica
  43. Tenny Fernando, Attorney at Law, Sri Lanka
  44. Amelia Festa, LLM Candidate, University of Naples Federico II, Italy
  45. Katherine Franke, Professor of Law, Columbia Law School, USA
  46. Jacques Gaillot, Bishop in partibus of Patenia
  47. Katherine Gallagher, Vice President FIDH, senior attorney, Centre for Constitutional Rights (CCR), New York, USA
  48. Avo Sevag Garabet, LLM, University of Groningen, the Netherlands
  49. Jose Garcia Anon, Professor of Law, Human Rights Institute, University of Valencia, Valencia, Spain
  50. Irene Gasparini, PhD candidate, Universitá Cattolica, Milan, Italy
  51. Stratos Georgoulas, Assistant Professor, University of the Aegean, Greece
  52. Haluk Gerger, Professor, Turkey
  53. Hedda Giersten, Professor, Universitet I Oslo, Norway
  54. Javier Giraldo, Director Banco de Datos CINEP, Colombia
  55. Carmen G. Gonzales, Professor of Law, Seattle University School of Law, USA
  56. Penny Green, Professor of Law and Criminology, Director of the State Crime Initiative, King’s College London, UK
  57. Katy Hayward, Senior Lecturer in Sociology, Queen’s University Belfast, Northern Ireland
  58. Andrew Henley, PhD candidate, Keele University, UK
  59. Christiane Hessel, Paris, France
  60. Paddy Hillyard, Professor Emeritus, Queen’s University Belfast, Northern Ireland
  61. Ata Hindi, Institute of Law, Birzeit University, Palestine
  62. Francois Houtart, Professor, National Institute of Higher Studies, Quito, Ecuador
  63. Deena R. Hurwitz, Professor, General Faculty, Director International Human Rights Law Clinic, University of Virginia School of Law, USA
  64. Perfecto Andrés Ibánes, Magistrado Tribunal Supremo de Espagna, Spain
  65. Franco Ippolito, President of the Permanent People’s Tribunal, Italy
  66. Ruth Jamieson, Honorary Lecturer, School of Law, Queen’s University, Belfast, Northern Ireland
  67. Helen Jarvis, former member Extraordinary Chambers in the Courts of Cambodia (ECCC), member of IAGS, Cambodia
  68. Ioannis Kalpouzos, Lecturer in Law, City Law School, London, UK
  69. Victor Kattan, post-doctoral fellow, Law Faculty, National University of Singapore
  70. Michael Kearney, PhD, Lecturer in Law, University of Sussex, UK
  71. Yousuf Syed Khan, USA
  72. Tarik Kochi, Senior Lecturer in Law, School of Law, Politics and Sociology, University of Sussex, UK
  73. Anna Koppel, MSt Candidate in International Human Rights Law, University of Oxford, UK
  74. Karim Lahidji, President of the International Federation for Human Rights (FIDH) and lawyer
  75. Giulia Lanza, PhD Candidate, Università degli Studi di Verona, Italy
  76. Daniel Machover, solicitor, Hickman & Rose, London, UK
  77. Tayyab Mahmud, Professor of Law, Director of the Centre for Global Justice, Seattle University School of Law, USA
  78. Maria C. LaHood, Senior Staff Attorney, CCR, New York, USA
  79. Louise Mallinder, Reader in Human Rights and International Law, University of Ulster, UK
  80. Triestino Mariniello, Lecturer in International Criminal Law, Edge Hill University, UK
  81. Mazen Masri, Lecturer in Law, The City Law School, City University, London, UK
  82. Siobhan McAlister, School of Sociology, Queen’s University Belfast, Northern Ireland
  83. Liam McCann, Principal Lecturer in Criminology, University of Lincoln, UK
  84. Jude McCulloch, Professor of Criminology, Monash University, Melbourne, Australia
  85. Yvonne McDermott Rees, Lecturer in Law, University of Bangor, UK
  86. Cahal McLaughlin, Professor, School of Creative Arts, Queen’s University Belfast, Northern Ireland
  87. Araks Melkonyan, LLM Candidate, University of Essex, UK
  88. Antonio Menna, PhD Candidate, Second University of Naples, Caserta, Italy
  89. Naomi Mezey, Professor of Law, Georgetown University Law Center, USA
  90. Michele Miravalle, PhD candidate, University of Torino, Italy
  91. Sergio Moccia, Professor of Criminal Law, University Federico II, Naples, Italy
  92. Kerry Moore, Lecturer, Cardiff University
  93. Giuseppe Mosconi, Professor of Sociology, University of Padova, Italy
  94. Usha Natarajan, Assistant Professor, Department of Law & Centre for Migration and Refugee Studies, The American University in Cairo, Egypt
  95. Miren Odriozola Gurrutxaga, PhD Candidate, University of the Basque Country, Donostia – San Sebastián, Spain
  96. Georgios Papanicolaou, Reader in Criminology, Teesside University, UK
  97. Marco Pertile, Senior Lecturer in International Law,
    Faculty of Law, University of Trento, Italy
  98. Andreas Philippopoulos-Mihalopoulos, Professor of Law and Theory, LLM, The Westminster Law and Theory Centre, UK
  99. Antoni Pigrau Solé, Universitat Rovira i Virgili de Tarragona, Spain
  100. Joseph Powderly, Assistant Professor of Public International Law, Leiden University, The Netherlands
  101. Tony Platt, Visiting Professor of Justice Studies, San Jose State University, USA
  102. Scott Poynting, Professor in Criminology, University of Auckland, New Zeeland
  103. Chris Powell, Professor of Criminology, University S.Maine, USA
  104. Bill Quigley, Professor, Loyola University, New Orleans College of Law, USA
  105. John Quigley, Professor of Law, Ohio State University
  106. Zouhair Racheha, PhD Candidate, University Jean Moulin Lyon 3, France
  107. Laura Raymond, International Human Rights Advocacy Program Manager, CCR, New York, USA
  108. Véronique Rocheleau-Brosseau, LLM candidate, Laval University, Canada
  109. David Rodríguez Goyes, Lecturer, Antonio Nariño and Santo Tomás Universities, Colombia
  110. Alessandro Rosanò, PhD Candidate, Università degli Studi di Padova, Italy
  111. Jamil Salem, Director Institute of Law, Birzeit University, Palestine
  112. Mahmood Salimi, LLM Candidate, Moofid University, Iran
  113. Nahed Samour, doctoral fellow, Humboldt University, Faculty of Law, Berlin, Germany
  114. Iain GM Scobbie, Professor of Public International Law, University of Manchester, UK
  115. David Scott, Senior Lecturer in Criminology, Liverpool John Moores University, UK
  116. Phil Scraton, Professor of Criminology, Belfast, Ireland
  117. Rachel Seoighe, PhD Candidate, Legal Consultant, King’s College London, UK
  118. Tanya Serisier, School of Sociology, Queen’s University Belfast, Northern Ireland
  119. Mohammad Shahabuddin, PdD, Visiting researcher, Graduate School of International Social Sciences, Yokohama National University, Japan
  120. Dean Spade, Seattle University School of Law, USA
  121. Per Stadig, lawyer, Sweden
  122. Chantal Thomas, Professor of Law, Cornell University, USA
  123. Kendall Thomas, Nash Professor of Law, Columbia University, USA
  124. Gianni Tognoni, Lelio Basso Foundation, Rome, Italy
  125. Steve Tombs, Professor of Criminology, The Open University, UK
  126. Paul Troop, Barrister, Garden Court Chambers, UK
  127. Valeria Verdolini, Reader in Sociology, University of Milan, Italy
  128. Francesca Vianello, University of Padova, Italy
  129. Aimilia Voulvouli, Assistant Professor of Sociology, Fatih University, Turkey
  130. Namita Wahi, Fellow, Centre for Policy Research, Dharma Marg, Chanakyapuri, New Delhi, India
  131. Sharon Weill, PhD, Science Po, Paris/ CERAH, Geneva, Switzerland
  132. Peter Weiss, Vice President of Centre for Constitutional Rights (CCR), New York, USA
  133. David Whyte, Reader in Sociology, University of Liverpool, UK
  134. Jeanne M. Woods, Henry F. Bonura, Jr. Distinguished Professor of Law, Loyola University College of Law, New Orleans, USA
  135. William Thomas Worster, Lecturer, International Law, The Hague University of Applied Sciences, The Netherlands
  136. Maung Zarni, Judge, PPT on Sri Lanka and Visiting Fellow, London School of Economics and Political Science

 

 

 

 

 

 

 

 

 

 

 

 

 

Palestinian Recourse to the International Criminal Court: The Time has Come

21 Jul

[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.)

 

 

 

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

 

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their side. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law, global solidarity, and their own creative and brave resistance that the Palestinian people must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

 

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

 

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

 

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29, 2012 the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

 

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping atomic bombs on the heavily populated cities of Hiroshima and Nagasaki.

 

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

 

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

 

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

 

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

 

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

 

Despite all these problems, recourse to the ICC remains a valuable trump card in the thin PA deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

No Exit from Gaza: A New War Crime?

16 Jul

 

(Prefatory Note: this is a modified version of a post published online, July 15, 2014, at the recently established very informative website, Middle East Eye; as the casualty totals continue to mount while the world looks on in stupefied inaction, the attacks go on; at the very least, from a humanitarian perspective,there should be a global outcry demanding that children, mothers, and those sick and disabled be allowed to leave the Gaza Strip until current hostilities end. Yet this is a gap in international humanitarian law, refugee law, and the moral sensibilities of the combatant states.)

 

 

As the hideous Israeli assault on Gaza, named Operation Protective Edge, by the IDF enters its second week, overdue international appeals for a ceasefire fall on deaf ears. The short lived July 15th ceasefire arranged by Sisi’s Egypt had many accompanying signs of bad faith from its inception, including the failure to allow Hamas to participate in the process, insultingly conveying the proposed terms of the ceasefire through public media. The vague terms depicted, alongside the failure to take any account of Hamas’ previously announced conditions, suggest that this initiative was not a serious effort to end the violence, but rather a clever ploy to regain moral credibility for Israel thereby facilitating the continuation and even intensification of its violent military campaign that was never defensive in conception or execution. Rather than being a real effort to end the violence, such a ‘ceasefire’ seems best understood as a sophisticated for form of escalation produced by a descent into the lower depths of Israeli hasbara. Such an Israeli tactic was facilitated by the active complicity of the Egyptian government that shares with Israel an undisguised wish to destroy Hamas. Cairo regards Hamas as an offshoot of the Egyptian Muslim Brotherhood, an organization that has been criminalized and viciously repressed, and has collaborated with Tel Aviv ever since Sisi took over control of the Egyptian government.

 

Throughout Protective Edge Bibi Netanyahu has been telling the world that no outside pressure will alter Israel’s resolve to reach its military and political goals to disable Hamas for the indefinite future. The main official justification for such aggression is to make sure this time that Israelis will never again have to seek shelter from Hamas rockets, an elusive result that Netanyahu acknowledges could require a prolonged military campaign combining ground forces with a continuing air and naval assault. Others claim on Israel’s behalf that this attack on Hamas is a just response to its involvement in the kidnapping incident a month ago in which three Israeli settler teenagers were seized by two Palestinians, and soon afterwards brutally executed. Such a rationale would still be a hyperbolic form of collective punishment directed at the entire civilian population of Gaza, even if there had been a Hamas connection to the earlier crime, an involvement alleged from the very first moment, and yet up to now not substantiated by evidence even in the face of Hamas’ denial of any involvement. The internationally respected human rights and international law specialist resident in Gaza, Raji Sourani, has written that the scale and ferocity of Protective Edge is an application of what he labels the ‘Gaza Doctrine,’ a deliberate reliance on disproportionate force in any encounter in Gaza. The Gaza Doctrine is a renewal of what was originally known as the ‘Dahiya Doctrine’ after the destruction of the Dahiya residential neighborhood in south Beirut, where many of Hezbollah’s faithful were living, during the 2006 Lebanon War. The inability of Hamas to mount any sort of defense for the people of Gaza or even to provide protection via shelters and the like, epitomizes the criminal nature of Protective Edge, and more generally, of totally one-sided warfare.

 

Leaving aside the debate on causes and justifications, the civilian population of Gaza, estimated to be about 1.8 million with women and children comprising 75% of the total, are trapped in an overcrowded war zone with no shelters and no apparent exit from terrifying danger. Even if families are lucky enough to avoid direct physical injury, the experience of screaming jet fighters attacking through the night, targeting, attack, and surveillance drones flying overhead 24 hours a day, sustained naval artillery barrages, not to mention the threats and warnings of an imminent ground invasion combine to create a nonstop horror show. It has been convincingly confirmed by mental health specialists that these realities result in a trauma inducing phenomenon on a massive scale with prospects of lasting and irreversible psychological damage, especially to children.

 

With these elements in mind, the idea of fulfilling the basic objective of international humanitarian law to protect civilians caught in a war zoneis being violated by Israel, although not altogether. Israeli officials claim that leaflets dropped on some intended targets, otherwise forbidden, that give residents a few minutes to vacate their homes before their living space is reduced to rubble, exhibits a humane intent and satisfies the requirements of international humanitarian law. Such a self-sanitizing gesture fails to discharge the obligations of an Occupying Power under international humanitarian law.

 

In a further escalation of the attacks, perhaps the prelude to a ground invasion, residents of northern Gaza are being told to flee the area, and tens of thousands have apparently done so. Hamas apparently urged these same people not to leave their homes dismissing Israeli threats as intimidating propaganda. Cynically interpreted, Hamas appears to be informing Israel that if they go ahead and invade, there will be responsible for causing many Palestinian civilian casualties, and the shock caused by such carnage will help eventually swing the international balance of opinion strongly in their favor.

 

The entrapment of the Gazan population within closed borders is part of a deliberate Israeli pattern of prolonged collective punishment that has for the past several years been imposed on Gaza. This amounts to a grave breach of Article 33 of the Fourth Geneva Convention, and as such qualifies as a potential Crime Against Humanity. The morbid clarity of criminal intent is further disclosed by Israel’s willingness to allow 800 or so Gazans who have dual citizenship and hold a foreign passport to leave Gaza by entering Israel at the Erez Crossing, including 150 with American passports. No other Palestinian residents of Gaza have the option of leaving even if disabled, sick, elderly, or young. The civilian population of Gaza is denied the option of seeking refugee status by fleeing Gaza during this time of intense warfare, and there is no space available within Gaza that might allow Palestinian civilians to become internally displaced until Protective Edge completes its dirty work.

 

In countries such as Iraq and Syria we grieve appropriately for the millions becoming refugees or ‘internally displaced,’ compelled by the dangers of the raging conflict to seek refuge somewhere in the country that is removed from the immediate dangers of inhabiting the war zone. We can sense the extremity of the humanitarian tragedy in Gaza by realizing that these people whose lives are being acutely jeopardized, have no place to hide from the brutalities of war. There is no doubt that the whole of the Gaza Strip is a war zone. Gazans who have endured many mortal threats and a siege since 2007, currently find themselves in situations of extreme hazard, and yet have no possibility of seeking temporary safety as refugees by crossing an international border. The idea of internal refuge is almost inapplicable given the ferocious nature of Protective Edge that has spared not one corner of the tiny and overcrowded Gaza Strip. To be sure, in response to Israeli warnings to abandon their homes tens of thousands of Palestinians are fleeing south from north Gaza. At present writing , an estimated 17 thousand Palestinians have obtained refuge in the 20 UN-run schools situated throughout Gaza. UNRWA is doing its heroic best to handle these desperate people but its buildings have limited space and lack the facilities to handle properly this kind humanitarian emergency–insufficient bathrooms, no beds, and not enough space to meet the demands.

 

This is not the first time that this exit challenge has been posed in Gaza. Back in 2008-09 and 2012, Israeli launched major military operations in Gaza, and the issue of the entrapped civilian population was brought to the attention of the UN and the international community, a challenge met as now with scandalous silence. The encirclement of Gaza by Israeli controlled crossings and fences, even worse than in the past due to an Egyptian political leadership that makes no secret of its hostility to Hamas. The overall humanitarian crisis is catastrophic in the risk it poses to the totally vulnerable Gazan social reality.

 

For some perspective, it is useful to recall that just prior to the Kosovo War in 1999, up to a million Kosovars crossed into Macedonia to escape anticipated NATO air strikes and because of a credible fear of an imminent ethnic cleansing campaign carried out by Serbian forces then controlling the country. As soon as the war was over and Serbia abandoned Kosovo, these refugees returned, having safely navigated the dangers of the war.

 

In Libya, too, the international community meaningfully responded in 2011 to the urgent crisis of an entrapped civilian population. In the Libyan crisis Security Council members talked piously about relying on the emergent norm of international law known as the Responsibility to Protect, or R2P, that validated intruding on Libyan sovereignty by way of a No Fly Zone that was established to protect the civilian population of Benghazi facing the vengeance of Qaddafi’s forces. This 2011 intervention has been much criticized because the humanitarian justification on which authorization for the undertaking was transformed immediately into a controversial regime-changing intervention that raised many objections. What is most relevant here is that the UN and the member governments of the Security Council acknowledged their responsibility to do something to protect a civilian population unable to remove itself from a combat zone. It should not be forgotten in comparing Libya with Gaza that humanitarian appeals seem much more effective when the country in question is perceived to have strategic value, especially large oil deposits.

 

The UN , aside from the admirable field efforts of UNRWA noted above, and the international refusal to adopt measures protective of the people of Gaza is unforgiveable, particularly as Gazans are being subjected to severe forms of violence that are approaching genocidal thresholds. Even so the UN and its leading member governments turn their heads and look away. Some do wors by actually endorsing Israel’s aggression. This pattern of behavior exhibits either a sense of helplessness in the face of Israel’s military juggernaut or even more disturbingly, a silence that can be construed as tacitly blessing this infernal entrapment of innocent and a long victimized people.

 

International law has little to say. International refugee law avoids issues associated with any right to escape from a war zone and does impose a duty on belligerent parties to provide civilians with an exit and/or a temporary place of sanctuary. International humanitarian law offers little more by way of protection to an entrapped people, despite the seeming relevance of the Fourth Geneva Convention devoted to the Protection of Civilians in Time of War. There is accorded to foreign nationals a right of departure with the onset of war, including even repatriation to an enemy country, but no right of nationals to leave their own country if under attack. And the generalized obligation of an Occupying Power to protect the civilian population is legally subordinated to its security needs, including military necessity, and so is generally of little practical use during an ongoing military operation.

 

What is evident in relation to the entrapped civilian population of Gaza is that no legal obligation exists to provide for safe havens either within the country experiencing the warfare or beyond its borders. At minimum, this horrible cauldron of violence and vulnerability reveals serious gaps in international humanitarian law, as well as the absence of self-imposed moral constraints that might limit belligerent violence. Such unattended vulnerability to atrocity urgently calls for a supplemental international agreement, perhaps taking the form of a treaty protocol to the Geneva Convention conferring an unconditional right of exit on civilians entrapped in a war zone. There is also a need to make any denial of the right of exit a species of war crime within the purview of the International Criminal Court. It should also be considered whether there should be conferred a right of internal displacement, imposing an obligation upon the Occupying Power, a territorial government, and insurgent actor to establish and respect enclaves set aside for displaced persons and to allow unimpeded civilian departure from war zones so as to take advantage of internal displacement. There are further complications that need to be addressed including whether the territorial government or Occupying Power can invoke security considerations to deny exit and displacement rights to those it has reason to believe are entitled to respect as civilians.

 

For the present it is enough to observe that the civilian population of Gaza finds itself totally entrapped in a terrifying war zone, and that Israel, the UN, and neighboring governments have refused to accept responsibility to offer some form of humane protection. It is one aspect of the unacceptability of the Israeli military operation from a moral/legal perspective and the related failure of international humanitarian law to lay down suitable rules and procedures that respect the human dignity of civilian innocence so entrapped. Yet, as almost always in such situations, it is the presence or absence of political will on the part of leading geopolitical actors that is the decisive factor in determining whether victimized people will be protected or not.And so it is with Gaza.

Tormenting Gaza

15 Jul

(Prefatory Note: the Israeli military operation, code name Operation Protective Edge by Israel, being carried out in the Gaza Strip continues, and seems poised to mount a ground attack that will further intensify the suffering of the Palestinian people, and lend additional credibility to the accusation of ‘collective punishment,’ both a grave breach of international humanitarian law and a crime against humanity. The post below is a somewhat edited republication of an opinion piece published in AlJazeera English several days ago at the start of Operation Protective Edge.]

 

For the third time in the last six years Israel has cruelly unleashed the full fury of its military machine against the defenseless 1.7 million people of Gaza, inflicting heavy civilian casualties and further devastation on the long besieged and impoverished Gaza Strip. With cynical disregard of the realities of this latest one-sided confrontation between Israel and Palestine, instead of condemning such recourse to massive violence as ‘aggression’ that violates the UN Charter and fundamental international law principles, the reaction of Western diplomats and mainstream media has so far perversely sided with Israel, citing the bland rationalization repeatedly stressed by Netanyahu that ‘every nation has the right to defend itself.’ And so it does, but not by way of aggression! From the UN Secretary General to the President of the United States, the main insistence has been that Hamas stop must all rocket attacks while Israel is requested ever so politely to show “maximum restraint.”

 

Up to now, the Israeli attacks have caused some two hundred deaths (more than half of whom are women and children; 80% civilians) and more than a thousand physical injuries (plus countless more injuries to mental health). In this period hundreds of rockets have been fired into Israel from Gaza, but have yet to cause a single death. The only reported serious injury to Israelis has been suffered by a person on his way to a shelter, making one aware that there are no shelters for Gazans subjected to much more lethal forms of firepower. Granted that such rocket attacks, indiscriminate in nature, are unlawful forms of resistance, to single out this lesser type of violence out and overlook the greater violence distorts the context in biased and unacceptable ways, and helps explain the distorted discourse in Western diplomacy. Surely, the greater occasion of terror is that being inflicted on the hapless Gazans as disclosed by comparing the casualty disparity, and surely the political condemnation by responsible governments and even more so by the UN should be directed at the aggressor, who also happens to be the only political actor with the means to end the escalating violence, yet defiantly lacks the will. This international reaction to this latest crisis confirms for all with eyes to see that geopolitical alignments, not law or justice, dominates the diplomacy of leading Western states and the UN, when it comes to the Middle East, and especially if it concerns Israel-Palestine, and never more so than in relation to Gaza.

 

After several days of the Israel attack, self-servingly code-named Protective Edge by Israel, President Obama made a low profile offer to mediate a return to the 2012 ceasefire that had been arranged through the good offices of Egypt after this earlier onslaught on Gaza. Whether the U.S. Government, the undisguised patron and unconditional supporter of Israel, has the credibility to play such a mediating role rather doubtful, but in any event, Israel showed no interest. It is possible that Hamas, weakened by developments in Egypt and elsewhere in the region, and facing the desperation of a terrorized and totally vulnerable people entrapped in the Gaza Strip, with a health system on the verge of collapse, might accept such a move even if excluded from participating directly in the negotiations, which would mean depending on the Palestinian Authority to represent Gaza’s interests. After all, Hamas, although prevailing in fair elections back in 2006, remains ‘a terrorist organization’ according to the Western diplomatic establishment, even though it has been in recent years mostly on the receiving end of Israeli state terrorism, and should be allowed to act diplomatically on behalf of Gaza and enhance its credentials as a political actor. At present, the issue may be moot as Netanyahu belligerently insists that no amount of international pressure will lead Israel to stop its attack until the ambitious political goals of the military operation have been attained. These goals include as a priority the elimination of Hamas influence in the West Bank, which is the prize that the current Israeli leadership covets in its quest to complete the Likud maximalist version of the Zionist Project.

 

An aspect of the distorted approach to responsibility for the violence in Gaza is the refusal of the West to take note of the connection between Protective Edge and the June 12th kidnapping and killing of the three Israeli settler teenage children and the surge of public and private sector revenge violence culminating in the grisly murder of Mohammed Abu Khdeir, a 17 year old Arab boy a few days later in the Shuafat neighborhood of Jerusalem. Without ever disclosing evidence linking Hamas to such an atrocious crime the Netanyahu government and Israeli media reacted hysterically, immediately inciting a vicious campaign against suspected Hamas militants throughout the West Bank and East Jerusalem, including air strikes in Gaza. In this atmosphere many Israeli officials and media stalwarts were provocatively calling upon the Israeli citizenry to strike back at the Palestinians. It was in this inflamed atmosphere that the Israeli government undertook a massive campaign of collective punishment, itself a war crime: hundreds of Palestinians thought to be associated with Hamas were arrested and detained; house demolitions of the homes of suspects; killings of at least six Palestinians; lockdowns of entire cities; air strikes against Gaza.

 

All this was done despite the mounting belief of independent observers that the crime against the Israeli youths was carried out by two Palestinians unaffiliated with Hamas, perhaps with an initial plan to bargain for the release of Palestinian prisoners in an exchange. Never has it been asserted in high profile diplomatic circles of the West that the horrible crime provided Netanyahu with a pretext for unleashing an anti-Hamas campaign to complete the process of de facto annexation of most of the West Bank. This campaign seems far less motivated by a response to the kidnapping/murder than by the political objective of punishing the Palestinians leadership for defying the Netanyahu government for recently achieving a measure of reconciliation as between the Palestinian Authority and Hamas. Further in the background, but part of the context, is the Israeli interest in shifting responsibility away from themselves for the failure of the Kerry direct negotiations that collapsed at the end of April. And in the foreground, are the settlers and the settlements with their avowed intention of incorporating Samaria and Judea into the state of Israel once and for all, whatever the consequences.

 

So far, Israel has met calls for restraint and a ceasefire with contempt. Rumors of Hamas’s receptivity to a ceasefire have not been tested. Israel’s leaders have responded defiantly, suggesting that Protective Edge will not cease until the Hamas’ infrastructure is destroyed, whatever it takes, supposedly to ensure that no rockets will ever again be fired from Gaza, which would imply that Gaza was totally subjugated and completely helpless. When Palestinian civilians are killed and terrorized in the process of pursuing such an elusive goal, this is rationalized by Israeli officials as a regrettable side effect of what Israeli leaders are claiming to be a legitimate military undertaking. In a characteristic warped statement Netanyahu declared: “We are not eager for battle, but the security of our citizens and children takes precedence over all else.” Some Israeli top officials were clearer about Israel’s objectives than was the prime minister. The Defense Minister, Moshe Yalon, called for the total destruction of Hamas, which is tantamount to seeking a genocidal hunting license in relation to the entrapped people of Gaza and the oppressed population of the West Bank and East Jerusalem. The Deputy Minister of Defense, Danny Dayon, publically urged Israel to cut off fuel and electricity to Gaza. If such a policy is implemented it would virtually guaranty a grotesque humanitarian crisis; he was later dismissed by Netanyahu for publicly declaring that Israel was humiliated because it allowed Hamas to set the terms for a ceasefire, an allegation that is obviously false as Hamas, so far as we know was excluded from the negotiations that led to the announcement that Israel had accepted a ceasefire. As it turned out, this unilateral ceasefire, rejected by Hamas, only lasted for six hours, and has been followed by intensified Israeli attacks on Gaza, especially targeting the residences of Hamas leaders. 

 

While Gaza burns, the fiddlers at the UN content themselves by worrying about the text of a proposed Security Council resolution, which never materialized. Israel and the United States were reported to be using all the leverage at their disposal to avoid condemnations of the Israeli air strikes on civilian targets in Gaza and even hoping that the final text of a resolution, if any, will include their preferred language about every sovereign state having a right to protect itself. It now seems that there will be no resolution as the United States is refusing to accept the language of the drafters, and only a rather innocuous non-binding Security Council ‘statement.’

 

On the basis of this disillusioning global response to Israeli aggression, it should become clear that the Palestinian struggle for self-determination and justice needs to be waged worldwide primarily at the grassroots level. It has never seemed more reasonable and morally necessary for persons of good will to lend maximum support to the BDS (boycott, divestment, and sanctions) campaign that has been in any event growing rapidly. It is also time to demand that governments adopt sanctions seeking Israeli withdrawal from the occupation of Palestine. An appropriate furtheresponse would be for the UN General Assembly to recommend imposing an arms embargo on Israel, as well as a boycott on Israel’s arms exports. This would be, at first, a largely symbolic gesture as Israel has become a major weapons maker, exporting arms to many countries with a tasteless sales pitch that stress the benefits of Israeli weaponry because it is ‘field-tested.’ There is a special challenge to American governmental institutions and its taxpaying citizenry that have been providing more than $3 billion of military assistance aid, coupled with special arrangements beneficial to Israel, for many years.

 

It is painfully evident that state-to-state diplomacy and the UN have failed to produce a just peace despite decades of fruitless talks. It is time acknowledge that these talks have been carried on in bad faith: while the diplomats sat around the table, Israeli settlements relentlessly expanded, apartheid structures deepened their hold on the West Bank and Jerusalem, and Gaza was cordoned off as a hostage enclave to be attacked by Israel at will whenever a bloody sacrifice seemed useful from the perspective of national interests.

 

At least, the Secretary General of the Arab League, Nabil ElAraby, condemned the “dangerous Israeli escalation,” urged the Security Council to “adopt measures to stop Israeli aggression against the Gaza Strip,” and warned of the humanitarian consequences. Turkish and Iranian issued official statements along similar lines. There is so much regional turbulence at present that it is unlikely to hope for anything more than scattered verbal denunciations from authorities in the region preoccupied with other concerns, but given the gravity of the situation, attention needs to be refocused on the Palestinian ordeal. Pressure on Israel is urgently needed to protect the Palestinian people from further tragedy, and the Arab neighbors of Israel and the European states that long held sway in the region, are challenged as never before to do the right thing, but it is doubtful that any constructive action will be taken unless regional and global public opinion becomes sufficiently enraged to exert real pressure on these governments, and hence on Israel itself. To pursue this goal now should be made a top priority of the Palestinian global solidarity movement.

 

Five Palestine Futures

24 Jun

 

Background and Foreground      

 

 

For years, perhaps going back as far as the Madrid Peace Conference of 1991, influential international debate on the future of Palestine has almost exclusively considered variations on the theme of a two-state solution. The American Secretary of State, John Kerry, stampeded the Palestinian Authority and Israel into negotiations that ‘failed’ even before they started a year ago. At least Kerry was prudent enough to warn both sides that this was their do or die moment for resolving the conflict. It was presumed without dissent in high places anywhere that this two-state outcome was the one and only solution that could bring peace. Besides the parties themselves, the EU, the Arab League, the UN all wagered that a resolution of the conflict required the establishment of a Palestinian state. Even Benjamin Netanyahu became a reluctant subscriber to this mantra in his 2009 speech at Bar-Ilan University, although always in a halfhearted spirit.

 

The reasoning that underlay this consensus went along these lines: a viable solution to the Israel-Palestine conflict could not challenge the Israeli commitment and the essential Zionist Project to create a homeland for Jews worldwide; this meant that self-determination for the Palestinian people would have to be addressed separately, and the only way to do this was by way of a partition of historic Palestine. The British had come to this conclusion as early as 1936 in the Peel Commission Report (a British Royal Commission that concluded that the British mandate as applied to the whole of historic Palestine was unworkable because of the tensions between the two ethnic communities, and proposed that partition be imposed), which became the basis for the solution proposed in 1947 by the UN in General Assembly Resolution 181. It was reaffirmed in Security Council Resolution 242 unanimously adopted after the 1967 War that reduced the portion of Palestine assigned to the Palestinian from 45% to 22%, calling for the withdrawal of Israeli forces from the territory occupied as a result and reaffirming the principle of international law that territory could not be validly acquired by force of arms.

 

Underneath the partition consensus there is an intriguing puzzle to solve: why has the consensus persisted despite the leadership of neither Israel nor Palestine seeming to have opted for partition except as a second best outcome. The Palestinians made their dislike of partition manifest from the outset of large scale Jewish immigration in the decades after the Balfour Declaration of 1917, believing that imposing a Jewish homeland, much less a Jewish state, was an unacceptable colonial encroachment. In the late 1980s the Palestinians, as represented by the Palestine Liberation Organization, adjusting to the realities of Israel’s presence, accepted the idea of partition in the historic decision in 1988 of the Palestine National Council. In its essence, the Palestinians endorsed the vision embedded in SC Res. 242, envisioning a Palestinian reality based on an Israeli withdrawal to the pre-war green line borders, an expectation that, of course, never materialized.

 

More subtly, the Zionist leadership was at best ambivalent about partition, appreciating it initially as a path leading to sovereignty, which exceeded ‘homeland’ as a political outcome, and represented more than they could have hoped for earlier in their movement, yet decisively less than the biblical vision of Israel as encompassing the whole of historic Israel. As the situation evolved since Israeli independence, Israel has continuously revised its sense of a favorable balance of forces making it seem realistic to seek a fuller realization of the Zionist dream. In recent years, the Israeli one-staters have started to gain the upper hand, based partly on what has been happening on the ground, partly by the rightward drift of the governing coalition, and partly from the absence of real incentives to compromise territorially due to the falling away of Palestinian armed resistance and the absence of meaningful pressure from Washington. There is a renewed reliance in Israel on the contention that the ‘Palestinians’ do not really have a distinct ethnicity, and hence are not a ‘people’ entitled to self-determination under international law. Palestinians are and should be viewed as ‘Arabs.’ As such, they have no need for another state as already 22 Arab states exist. In my experience, within Israel, almost no Israelis refer to Palestinians as other than as Arabs, except of course the Palestinians.

  

Of course, what a Palestinian state meant to the Palestinians was different than what it meant to the Israelis. Additionally, what it meant for the Palestinian Authority was also far apart from what the Palestinians overseas dispersed communities and the refugee camps believed to be the necessary components of peace. Almost necessarily, the focus on Palestine as a state rather than Palestine as the communal recipient of rights reduced the conflict to a territorial dispute supposedly susceptible to solution by a ‘land for peace’ formula. This approach marginalized other Palestinian grievances, above all, the right of return of Palestinian refugees, creating tensions between Palestinians living under occupation and Palestinians living in refugee camps and in exile. It also situated issues relating to Jerusalem in some indeterminate zone that was neither territorial nor distinct from territorial claims.

 

On the Israeli side, too, there were big variations. The dominant Israeli position in recent years has been one in which the dimensions of a Palestinian state must be subordinated to the imperatives of Israeli security as defined by the Israeli government. In effect, that would mean confiscating all of Occupied Palestine to the West of the separation wall and the settlement blocs as well as controlling the borders and maintaining for an indefinite period Israeli security forces in the Jordan Valley. In addition, Palestinians must renounce all their claims as part of a final status agreement, which would seem also to imply the end of any assertion of a right of return for 1948 and 1967 Palestinian refugees. More maximalist versions involve even larger annexationist features and treat the city of Jerusalem as exclusively belonging in perpetuity to Israel. On top of all these demands is the insistence by Netanyahu that the Palestinian Authority recognize Israel as a Jewish state, which both relegates the Palestinian minority in Israel to permanent subjugation and effectively renounces any Palestinian right of return.

 

The Israeli government having in recent years become virtually inseparable from the settler movement has long appreciated that the function of endorsing a Palestinian state was little more than a way of appeasing, and thereby neutralizing, world public opinion, given its insistence that a political solution was possible and necessary, and could only happen if the Palestinian got their state, satisfying at the very least, the territorial core of self-determination. Even now the Palestinian Authority continues to sing the same lyrics, although the melody is more solemn. The Palestinian governmental representatives in recent years have lost even the ability to say ‘no’ to international negotiations despite having nothing to gain from the recurrent charade of such American orchestrated gatherings and quite a bit to lose by way of expanding settlements, the altered makeup of Jerusalem, and a gradual shifting international mood in the direction of accepting Israeli maximalism as unassailable, if regrettable. Ironically, Israeli media influence and the supportive voice of the U.S. Government also blames the Palestinians for each round of failed peace talks, although for the first time, the Israel obstructionist role was so evident, Washington blamed both sides.

 

 

There is no light at the end of this particular tunnel. With what appears to be the death throes of a failed peace process is being acknowledged in the form of an eerie silence in high places. There is an absence of conjecture or advocacy as to how the conflict might end abetted by the recent focus on the turmoil in the region, especially the renewed chaos in Iraq and intensifying strife in Syria that has shifted public and media attention away from the Israel-Palestine agenda. This evasive silence has for the present replaced earlier false hopes invested in futile diplomatic negotiations. In retrospect, it is easy to conclude that political preconditions for conflict-resolving negotiations premised on a viable Palestinian sovereign state never truly existed on the Israeli side, assuredly after the assassination of Yitzhak Rabin in 1995. This is mainly because the expansionist vision of the right-wing settlers became more and more accepted as official state policy in Tel Aviv, and there was no longer pressures being mounted by Palestinian armed struggle. On the Palestinian governmental side, in contrast, there was an eagerness to end the occupation and attain the status and rituals associated with being a sovereign state. Confusion surrounded the practicalities of what such an arrangement would yield. It always seemed doubtful as to whether a deal like this could be sold to the Palestinian people if it left the several million Palestinians living in refugee camps and overseas out in the cold. This assessment is especially true since the death of Arafat in 2004, which has led to a virtual leadership vacuum on the Palestinian side.

 

The security logic of the Israeli right is that Israel will only be able to maintain its security over time if it continues to control all or most of the West Bank. This image of security reflects the view that real threat to Israel no longer comes from Palestinian armed resistance. It comes from the surrounding Arab world that is moving toward more advanced weaponry, and at some point is almost sure to again turn its guns and missiles in an Israeli direction. Additionally, pushing toward a similar understanding, is the view that the full realization of Zionism involves the incorporation of the West Bank, always referred to in internal Israeli discourse by their biblical names of Judea and Samaria.

 

Peace through bilateral negotiations presided over by the United States has long seemed moribund to many close observers, but after the recent collapse of the talks this top down diplomatic approach seems discredited even among governments and at the UN, at least for now. Yet it is impossible for most of the world to accept the finality of such a stalemate that favors Israel, in effect, ratifying land grabs and apartheid structures, while consigning the Palestinians to regimes of misery of for the indefinite future, which translates into the rigors of permanent denial of rights, oppression, refugee camps, and involuntary exile. This bleak assessment raises the question ‘What Now?’

 

           

Constructing a New Box

 

 

In situations of this sort, where differences seem irreconcilable, the common call is ‘to think outside the box.’ The old box was the consensus associated with the two-state mantra, which appeared to have a solidity that never truly existed. Now appearances are more reliable. At present there is not even a box to think within. Yet silence and despair is not an option while Palestine suffering and denial of rights endures. Future alternatives need to be imagined and appraised. Five seem worth pondering, and each has some plausibility.

(1)  Israeli One-State: Such an end game involves extending Israel’s border to incorporate most of the West Bank, keeping the settlements except, perhaps, relinquishing control over a few isolated outposts. This vision of Palestine’s future takes on heightened political relevance considering that Reuven Rivlin, the newly elected Israeli President, is an open advocate of a supposedly humane version of an Israeli one-state outcome, a position that directly contradicts Netanyahu’s endorsement of an eventual Palesinian state. This benevolent version, spelled out in some detail by an influential settler advocate, Dani Dayan, calls for a radical easing of Palestinian life in relation to day to day humiliations, ranging from the numerous checkpoints, restrictions on mobility, and anticipates and supports the dismantling of the separation wall. [See Dayan, “Peaceful Nonreconciliation Now,” NY Times, June 9, 2014]

 

Dayan proposes that the Israeli government take a series of steps to raise the Palestinian standard of living significantly. He admits that this type of ‘economic peace’ will never satisfy Palestinian political/legal grievances relating to territory, independence, and the right of return. Such a proposal is essentially offering the Palestinians a Faustian Bargain in which Palestinians give up their rights of resistance in waging a political struggle for self-determination in exchange for the tangible psychological and economic advantages of living better lives materially and enjoying some measure of dignity within an Israeli structure of governance. The obstacle here is that the authentic voices representing the Palestinian people seem united in refusing to renounce their political ambitions and their right of resistance. The acceptance of such an arrangement would be widely understood, including among the Palestinian people, as a political surrender to the de facto realities of Israeli settler colonialism carried to its maximalist endpoint. It is relevant to note that the Dayan proposal is coupled with the expectation that the Palestinians would renounce in principle and practice any right of violent resistance, while the Israeli state would be entitled to engage in violence whenever the perceived imperatives of security so demanded.

 

 

(2)  Binational One-State: The more idealistic version of the one-state solution presupposes a secular state that encompasses the whole of historic Palestine, establishes a unified government with democracy and human rights for all, and creates semi-autonomous regions where Jews and Palestinians can exercise self-administration and freely express their separate national and ethnic identities. In effect, the two dominant peoples in Palestine would agree to live together within a single sovereign state on the basis of equality and democracy, but with agreed provisions creating separate national communities preserving culture, tradition, ethnicity, and religious affiliation. There are several obstacles: given the realities on the ground and the attachment of an overwhelming majority of Israelis to the Zionist Project of a Jewish State with its unlimited right of return for Jews worldwide, the proposal seems utopian, lacking political traction. Furthermore, the disparities in wealth and education would likely lead to Israeli hierarchy, if not dominance and continued exploitation, in any process that purported to unify the country on a non-Zionist basis.

 

 

(3)  Israeli Withdrawal from Occupation: In this proposal, there would be no explicit shift in the structures of governance. In a manner similar to the 2005 Sharon Disengagement Plan for Gaza, this new initiative would apply to those portions of Palestine that Israel seeks to incorporate within its final international borders. This arrangement would leave the Palestinian Authority in charge of the remnant of the West Bank, as well as Gaza. It would maintain the actuality of the occupation regime, but without the presence of Israeli security forces and keep the separation wall, imposing rigid border controls and continue repression, effectively depriving Palestinians of the enjoyment of their most basic human rights. This approach                          rests on the assumption that Israeli military control is able to implement such a solution as well as to deal with external threats mounted from hostile forces in the region. The main obstacle is that Palestinians would have no incentive to accept such an outcome, it would be denounced in most international settings, including the United Nations, and it would have the likely political consequence of further isolating Israel in global settings.

 

(4)  Palestinian Self-Determination: There is some new thinking in the Palestinian camp, most articulately formulated by Ali Abunimah in his important book, The Battle for Justice in Palestine. The emphasis is on civil society activism and nonviolent Palestinian resistance as building global support for a solution that is responsive to the Palestinian right of self-determination. What form self-determination eventually assumes is a matter, above all, for Palestinians to decide for themselves. The realization of self-determination presupposes leadership that is accepted by authentic representatives of the whole of the Palestinian people, including those living as a minority within Israel, those living under occupation, and those in refugee camps and involuntary exile. The contours of the territorial division or unity that emerges would be the outcome of negotiations, but its embodiment would address the legitimate grievances of the Palestinian people as defined by international law and international human rights and include a formal acknowledgement by Israel of past injustices done to the Palestinian people. The main obstacle here is one of hard power disparities and rigidities, as well as the continuing, although weakening, Jewish worldwide engagement with the Zionist Project. The way around such an obstacle is to gain worldwide support that mounts sufficient pressure on Israel, the United States, and Europe so as to induce a recalculation of interests by Israeli leaders and citizens based on a new realism associated with the increasing leverage of growing Palestinian soft power capabilities.

 

(5)  Peaceful Co-Existence: In recent years, Hamas, strangely seems to be the last holdout for a version of the two-state solution, although in its maximalist form. Israel would need to withdraw to the 1967 borders, end its blockade of Gaza, and give Palestine control over East Jerusalem. The main obstacle here is that Israel would have to abandon its expansionist goals and dismantle the settlements, although it could retain the Zionist Project in its more limited territorial applications to Israel as it existed in 1967. The secondary obstacle is that the Hamas Charter calls for the total removal of the entire Jewish presence from historic Palestine, making the proposal seem tactical and untrustworthy, and at most intended to serve as an interim arrangement, an uneasy truce and unsustainable peace. Hamas officials have indicated a willingness to commit to 50 years of coexistence, a period in which much could change, including even the primacy of the statist framing of political community. It is impossible to imagine Israel accepting such a blurry outcome that rolled back the factual realities of expansion that have been created by Israel over the course of several decades. Besides, whatever its content the very fact that Hamas was the source of such a proposal would alone be sufficient to produce an Israel rejection.

 

A Concluding Comment

 

It is obvious that none of these five approaches seems either attractive enough to challenge the status quo or politically persuasive enough to shift the balance of forces bearing on the conflict. Yet, there are signs indicating both that the Israelis are moving toward a unilaterally imposed option and the Palestinians are becoming more inclined to combine nonviolent resistance with support for militant global solidarity. On the one side, the Israeli settler movement is on the front line, and on the other, the Palestinian BDS campaign is gathering momentum as the leading expression of the Palestine National Movement. In both instances, at this time the relevant governmental entities have been marginalized as political actors in relation to the struggle. This is itself an extraordinary development, but where it will lead remains obscure. Two images of the near future seem most relevant. From an Israeli perspective: the consummation of the Zionist project by the incorporation of all or most of the West Bank, the further ethnic consolidation of control over the whole of Jerusalem, and the rejection of any humanitarian responsibility or political ambition with regard to the Gaza Strip. From a Palestinian perspective: the growth of the global solidarity movement to a point where an increasing number of governments impose sanctions on Israel, reinforced societal initiatives associated with the BDS campaign, giving rise to new thinking in Israel and the United States about how best to engage in damage control. If such a point is reached, the experience of transforming apartheid South Africa into a multi-racial constitutional democracy is almost certain to intrigue the political imagination.