Israel | Global Justice in the 21st Century

Tag Archives: Israel

Will Saudi Leadership of OPEC Clash with U.S. Strategic Partnership?

[Prefatory Note: This post is a somewhat updated and expanded version of responses to questions posed by the Iranian journalist, Javad Arabshirazi on October 12, 2022.]

REEVALUATING US RELATIONS WITH SAUDI ARABIA AFTER OPEC+ OIL PRODUCTION

#1: The White House says that President Joe Biden is re-evaluating the US relationship with Saudi Arabia after the Organization of the Petroleum Exporting Countries and allies (OPEC+), in which Riyadh is a top producer, announced last week it would cut oil production. What is your take on this?

Biden and the U.S. swallowed a lot of harsh criticism for maintaining such a friendly relationship with Saudi Arabia in the aftermath of the 2018 brazen murder in the Saudi Consulate in Istanbul of the respected journalist, Jamal Khashoggi, who was long a Washington resident. Also, such a positive relationship had long been criticized as disregarding Biden’s supposed primary commitments to democratic values and human rights, given that Saudi Arabia has a worst record on gender issues than Iran and yet gets a pass. Furthermore, criticism had long been leveled at the U.S. military and diplomatic support for the unlawful and inhumane Saudi military intervention in Yemen mainly in the form of air attacks that have frequently struck civilian targets.

In this sense, Saudi Arabia and Mohammed bin Salmon, like Israel, had been shielded from official censure either by the U.S or at the UN, being considered a strategic partner and a key player when it comes to world energy markets and regional security in the Middle East. That being said, it is also true that Saudi Arabia never dreamed of having the extraordinary policy leverage in the U.S. enjoyed by Israel, lacking its lobbying prowess and willingness to use its influence when necessary to sway American voters. In addition, Biden’s visit in July of this year in the face of mounting liberal criticism was rumored to be compensated by a private Saudi commitments to maintain oil production levels and accept lower per barrel princes at least until December, that is, after the U.S. upcoming November elections at which higher gap pump prices would hurt Democratic Party prospects. In addition, it was believed that any production cuts by OPEC would aid Russian energy export marketing.

In this sense, the Saudi-led OPEC+ (13 OPEC members + 23 cooperating governments of oil exporting countries; significantly, Saudi Arabia and Russia co-chair OPEC+!) production cuts were seen as undercutting both U.S. domestic anti-inflation and foreign anti-Rissian policy, which was determined to reduce Europe’s dependence on imported Russian gas. Although not publicly commented upon, this turn toward Russia in the strategic context of energy must have outraged, or at least disillusioned, those Washington insiders who have pragmatically encouraged a human rights blindfold and a tight embrace.

To consider this production/price move from a Saudi perspective makes it seem mainly motivated by its national interest in protecting the value of their principal trading asset, as well as not wanting their compliance with Washington wishes to be taken for granted or cancel other relationship as with Russia in OPEC+. With a global recession widely anticipated in coming months, principally as a consequence of the prolonged Ukraine crisis, oil demand is predicted to fall sharply, if possibly briefly, exerting a downward pressure on the world prices of oil and gas. Thus, from an economistic perspective an OPEC adjustment by way of temporarily reduced production seemed sensible. The Saudis undoubtedly felt that to remain a trustworthy leader of the OPEC and especially OPEC+ required that their influence not be distracted by U.S. political pressures and this depended on setting production quotas responsive only to energy market factors. Saudi Arabia formally confirmed this line of interpretation in their public written reaction to complaints from Biden, ant threats to reevaluate the bilateral relationship in manner than would be punitive toward Riyadh.

Also, at stake was the idea that a country like Saudi Arabia should demonstrate its political independence, especially when purporting to administer such an important form of multilateralism as is involved in OPEC+ operatioonas. To manifest such independence on such a crucial issue as production levels meant avoiding any impression of subservience to the regional hegemony claimed by any non-OPEC or OPEC+ external actor. In this sense, what the Saudis are doing is somewhat similar in spirit to what Turkey has been doing in recent years, which has caused some friction within the NATO alliance framework but gained wide international respect for Turkey as an independent political actor. This is also what Israel has done in its own more provocative manner by not at all hiding its sharp differences with the U.S. on important questions, perhaps most notably through various disruptive expressions of its intense opposition to the 5+ 1 Nuclear Agreement of 2015 (also known as JCPOA) with Iran and currently by way of its opposition to the revival of the agreement by way of a U.S. return as a party, which is what Biden pledged when campaigning to be president in 2016. Israel has vigorously obstructed this major diplomatic and security effort without encountering any sort of pushback by way of adverse ‘consequences’ that the Saudis are now being warned about. I would venture the opinion that absent Israel’s opposition, JCPOA would have been by now long restored, providing greater stability to the Middle East while at the same time gradually lifting the harsh and unjustifiable Trump sanctions that have brought great suffering to the people Iran.

#2: President has warned of the consequences. What consequences this could have?

Biden has been deliberately vague about the nature of such consequences, although he spoken publicly about reevaluating the entire U.S./Saudi relationship. It may indicate that such a public show of displeasure, also reflecting some Congressional and public pressure to rethink whether closeness to Saudi Arabia sufficiently serves American interests to offset the clash with U,S. proclaimed values relating to human rights and democracy. I believe that it is helpful at this stage to consider this flareup as a temporary kafuffle between long-term allies joined at the hip. If this is true this incident will eventuate in nothing more consequential than a warning and a signal of disappointment, at most conveying an implicit threat that if such diplomatic defiance is shown in the future by Riyadh it might then indeed have ‘consequences,’ but even that might be a stretch unless Israel also turns away from soliciting normalization of relations with Saudi Arabia. If Republicans regain the White House in 2024, there will be even less willingness to rethink in any serious way, u.S./Saudi relations.

More concrete options are of course presently possible and have been proposed in the U.S. media and the Congress including an embargo on arms and legal action against the OPEC oil cartel. I find it somewhat doubtful at this stage that such drastic steps would be taken, and if they were, I would predict a boomerang effect. I suspect that the foreign policy establishment in Washington is inhibited by the fear that in the event of a tangible pushback, Saudi Arabia might become tempted by the opportunity to shift its alignment in a direction more in line with China and Russia, an outcome running directly counter to the regional policies of both Israel and Egypt and quite disturbing for Europe, and of course the United States.

#3: An important question here is that on what basis and why Riyadh has decided to do this. Is Riyadh going to partner with another country?

It is probable that Saudi Arabia’s leaders are also hoping that the storm will pass, and that it can reestablish close security ties with the U.S.. once having made its point about the autonomy of its approach to oil and OPEC+. There is little reason to think that the Saudis are ready to risk the loss of U.S. support for the security of Kingdom against internal and external adversaries. This has been the overriding Saudi goal long before MBS became the face of Saudi Arabia, and this support has critically extended to the management of its regional rivalry with Iran.

It may take some accommodating steps by Riyadh to restore rapidly pre-crisis normalcy such as voting with the U.S. in the UN to condemn the Russian annexation of four areas of Ukraine following the sham referenda that Moscow insisted exhibited a popular preference for reintegration with Russia. It has been rumored that the Saudis have given secret reassurances that current OPEC oil production quotas will be reconsidered at the next cartel meeting in light of any changes in the world economic situation that might lead increased oil production by OPEC members.

I would think that both the U.S. and Saudi Arabia will downplay the apparent tensions of the moment, and nothing concrete will happen to diminish the strategic level of mutual cooperation between these two countries. I further assume that behind the scenes, Israel is exerting strong pressure encouraging such an approach for the sake of its regional ambitions and to undergird its continuing efforts to confront and destabilize Iran. Nevertheless, it is a turbulent time in international relations, and anything is possible. So what seems most plausible at this moment may look quite different in a month or two.



Tags: Israel, OPEC, OPEC+, Russia, US/Saudi Relations

Comments 10 Comments
Categories Israel, OPEC, OPEc+, Russia, Saudi Arabia, US/Saudi Relations

The Nuclear Agreement (JCPOA, 2015) Should be Renewed

25 Aug

[Prefatory Note: Richard Falk Responses to Questions posed by Mohamadreza Farahzadi, of the international desk of Farhikhtegan Daily pertaining to long process of rejoining this agreement limited Iran to the development of civilian nuclear power technology; the text of my responses and the title has been modified. It is one more example that undoing the human and diplomatic harm of Trump’s international legacy is a complex matter that not only exhibits the persisting influence of unrepentant Trumpists but the passivity of the Democratic Party leadership, particularly when it dares to disagree with Israel on a matter of foreign policy concern.]

1. According to the reports of the International Atomic Energy Agency, which is responsible for monitoring Iran’s nuclear commitments, Tehran was fully fulfilling its obligations according to the JCPOA until the US withdrew from it. However, even after the withdrawal of the USA from the JCPOA, these approvals continued and were accepted by the existing members as well.

It seems that Iran, which started adjusting its nuclear commitments a year after the withdrawal of the USA from the JCPOA, has no problem with returning to its previous commitments. In the meantime, the only problem that is the main reason for the existence of JCPOA revival negotiations is the withdrawal of the United States from the agreement during the Trump era and its not returning during the Biden administration. Accordingly, Iran in general is only seeking guarantees so that it will not be deprived of the economic benefits of fulfilling its obligations. Why has the USA refused to return to the JCPOA?

Response: I share the view that the 2018 U.S. withdrawal from JCPOA was the sole explanation for the breakdown of the 2015 agreement, which as you suggest, was working well, with the IAEA confirming Iran’s compliance. This compliance was impressive insofar as Israel continuing to violate Iranian sovereignty by engaging unlawful and provocative ways involving further efforts to disrupt Iran’s legitimate nuclear program, including the assassination of nuclear scientists and acts of sabotage directed at nuclear facilities..

It is correct to point out that Biden would encounter political difficulties in providing a meaningful guaranty to Iran that a future president of the United States would not again withdraw as Trump would almost certainly do should he be reelected in 2024. Biden is also under pressure from Israel and from domestic politics with an mid-term election scheduled for November 2022, not to rejoin the JCPOA, at least not without additional constraints on Iran relating to non-nuclear armaments and regional political activity and a green light to Israel’s unilateral efforts to violate Iran’s sovereignty for purposes associated with alleged security concerns..

If fairness were to prevail, the. U.S. would repudiate Israeli efforts to shape U.S. foreign policy and rejoin JCPOA without any new preconditions, and accompanied by certain conciliatory acts that were in effect an apologetic acknowledgement of the harm endured by Iran and its people due to the wrongful withdrawal in 2018.

2. In recent weeks, the European Union has presented a final proposal package to Iran and the United States to revive the agreement. Iran quickly responded to the package of the European Union. Citing sources in Europe who had access to the text, some media have called Iran’s text “constructive”. However, the United States has so far refused to respond to the package proposed by Europe and maintains that it is still examining the package and Iran’s response to it. Does the fact that Iran’s speed in responding and its content which has been called “constructive” by European sources, have been faced by the delay of USA, imply Democrats’ unwillingness to revive JCPOA? The conjecture is intensified having in mind the notion that the mid-term elections of the Congress are near and returning to Iran nuclear deal can have negative results for the Democrats.

Response: I would suspect that the major explanation for the delay on the U.S, side is its search for a formula that will lessen Israeli and domestic public criticism for moving toward an acceptance of this latest proposal package table by the EU. Unlike the U.S., Iran does not need to consult with other governmental or political entities before fashioning its response. The European sources asserting that Iran’s proposals are ‘constructive’ undoubtedly is intended to influence Washington to respond in a similar favorable manner to that of Iran, and hence close to consummating a new deal.

This outlook reflects overwhelming sentiments that JCPOA is a positive framework for tension reduction and war avoidance in the Middle East that deserves widespread support to overcome these unfortunate pockets of continuing opposition to any agreement with Iran, and persisting demands to renew and even intensify the coercive approach to Iran by way of sanctions that lasted almost 25 years. Israel has attacked the proposed renewal of JCPOA on three unconvincing grounds: first,, that it will not stop Iran from acquiring nuclear weaponry, posing severe threats to the security of countries in the region; that sanctions relief will provide the Iranian government with $100 billion per year to fund ‘terrorist’ organizations’ (specifically, Hezbollah, Hamas, and Islamic Jirhad); and by agreeing to such an arrangement the U.S. signals a lack of resolve to oppose Iranian expansionism .

3. Iran is strongly seeking to receive a guarantee from the United States that Washington will not withdraw from the nuclear agreement. However, the United States ignores Iran’s request on the pretext that it is not able to make such a promise based on the structures of the United States. Although Washington’s argument may seem correct at first glance, in any case, countries have international and bilateral obligations that all their administrations must respect.

On the other hand, as the Iranian authorities have announced, it seems that they want to increase the moral cost of the USA withdrawal, because in practice, if Washington or even another country wants to withdraw from the agreement, it is impossible to force it to stay. Having in mind the fact that the provision of such assurances only increases the moral constraints of the agreement and may not have any practical value, why is Washington resisting their provision? Does Washington want another unjustified exit?

Response: My assessment is that as weak an American president as Biden will be very reluctant to generate critical reactions contending that he is giving assurances to a hostile foreign government that exceed his constitutional authority, based on the doctrine separation of legislative and executive authority that is invoked as an integral part of the foundation of legitimate governance in the U.S. The normal path to a long-range irreversible national commitments takes the form of an international treaty requiring ratification by 2/3s of the U.S. Senate. This would not be unobtainable in relation to the JCPOA. given Israel’s and Republican right-wing’s opposition to concluding any agreement with Iran on its nuclear program. In any event, to follow treaty ratification procedures would require years of effort even if the political atmosphere made ratification a practical option.

It is also probably useful for Biden to have the freedom to assure Israel and critics of a diplomatic approach coupled with an assurance that if Iran behaves in a manner that is regarded as unacceptable, then a second withdrawal is an option that has not been foreclosed, even morally. The issue is on both sides one of appearances, For Iran the appearance that JCPOA is this time a durable arrangement not subject to changes in political leadership in signatory countries. For the U.S. the appearance of flexibility are assurances to opponents and critics that JCPOA does not constrain American leaders from once more withdrawing and opting once more for a totally coercive approach to relations with Iran.

As matters now stand, the U.S. has virtually admitted that it needs time to consult with the E3 countries (France, UK, Germany), and most of all Israel to make sure that the terms agreed upon for the renewal of the JCPOA take maximum account of their national security interests. Whether the text subject to these consultations ends up in a deal probably depends on whether Washington is willing to ignore opposition by Israel and to moderate criticism by promising a strong U.S. future military and diplomatic engagement in securing the region. If an agreement does result it may also include an expressed willingness to refrain from Israeli unilateral moves against Iran even uses of aggressive force in total disregard of international law and the UN Charter.

Tags: Iran Nuclear Agreement, Israel, JCPOA, Middle East, polishing nuclear weapons, United States

Comments 20 Comments
Categories Iran, Israel/United States, JCPOA

Will the Iran Nuclear Agreement be Restored?

26 Jan

[Prefatory Note: An interview with Mojtaba Majidi of the Mehr News Agency (Tehran) on the Vienna Talks that are seeking to restore the Iran Nuclear Agreement of 2015 reached during the Obama presidency. When Trump became president in2017 he denounced the agreement as harmful to Israel and notstrong enough to control Iran’s nuclear ambitions. The U.S. withdrew in 2018, reimposing harsh sanctions, moves criticized at the time by the other five signatory countries (UK, France, Germany, Russia, China). Biden pledged to reinvigorate the agreement by rejoining, but has not wanted to override Israeli concerns nor generate a controversy at home. At present, it is quite uncertain as to whether these hurdles can be overcome.]

Q1: Apparently Iran has taken a constructive stance on the Iranian nuclear issue and has sent a delegation to take part in the new round of negotiation on resuming compliance with the JCPOA. However, the US and Western countries still criticize Iran for not being serious enough in the negotiation. How do you evaluate Iran’s performance in the negotiation?

It is difficult to assess these public statements made by both sides with reference to the Vienna Talks. It appears to be a pre-negotiating communication with media platforms and public opinion, as well as in the US. It seems to be a way of blunting Israel’s criticisms for any negotiations with Iran that might lead to the restoration of the 2015 Nuclear Agreement (JCPOA), the end of sanctions, or improved relations between the two countries. We do not know how motivated the US and Iran are to give ground so as to reach an agreed outcome. The degree of negotiating flexibility and the red lines of both parties will become more obvious as their respective preconditions for agreement are put forward in the negotiations.

Having acknowledged this obscurity, I believe the main burden is on the US to demonstrate its sincerity and credibility. In 2018 US formally and unilaterally withdrew, Trump having repudiated the agreement soon after he was elected in 2016, subsequently reimposing sanctions and authorizing various unlawful covert operations in violation of Iran’s sovereign rights, as well as refusing to criticize Israel’s unlawful threats and uses of force against Iran. In this sense, it is vital that the US demonstrate its good faith, including a willingness to offer some sort of guaranty against a second repudiation of the JCPOA( Joint Comprehensive Plan of Action) that would probably be combined with the reimposition of sanctions should the Republican Party return to power in 2025. To be sure, even a strong guaranty embedded in the restored agreement would be unlikely to be respected by Trump or enforceable. A US commitment to oppose any Israel’s future hostile acts directed at Iran would serve the purposes of the agreement, which aims at enhancing regional stability, but would also be vulnerabilities of American electoral politics.

Q2: Iran insists on the removal of all nuclear-related sanctions. Will the US do so? In fact, do you see any real political will in the US to reach an agreement?

I believe the US does seek stability in the Middle East. The question is whether it is prepared to pay the diplomatic and domestic political price of increased friction with Israel accentuated by the added difficulties with Congressional allies of Israel claiming a weakening of ‘the special relationship’ that the US has long maintained with Israel and the Biden presidency has repeatedly reaffirmed. It is less the absence of political will to reach an agreement, but the need Washington evidently feels to weigh the balance between the benefits of such agreement against the strong pushback in the US led by Trump-oriented Republicans. After the problematic manner of the withdrawal of American forces from Afghanistan, Biden is undoubtedly sensitive to allegations from the American right that he is projecting an image of American weakness, regional disengagement, and global decline.

Q3: Iran has repeatedly stressed that the core purpose of this round of negotiation is to lift sanctions against Iran and normalize Iran’s economic and trade activities. How do you evaluate this appeal of Iran?

I think the genuineness and justification of this pursuit of normalcy on Iran’s part is sincere, deserves respect, and is mandated by international law and the UN Charter. Arguably, Iran has done nothing wrong that would warrant punitive actions of the sort taken or the kind of coercion embedded in the ‘maximum pressure’ approach to the Trump presidency. It is unlawful to threaten or use force as a tactic of diplomacy, and Iran has been constantly threatened over a period of many years, economically harmed, and politically destabilized by such tactics, as well as by the imposition of sanctions that have inhibited foreign investment and trade by third party countries.

Q4: Iran says the text of the 2015 JCPOA should be the cornerstone of the Vienna talks but the other side, in fact, is after a new 2021 JCPOA. How do you assess these excessive demands?

On its face, these US demands are unreasonable considering that it was its unilateral, unprovoked act that led to the breakdown of the agreed arrangements embodied in the 2015 JCPOA framework. Iran should not be politically expected to accept new conditions and constraints that impose additional limits on its freedom of action in a 2022 revamped version of the former agreement.

The argument for new conditions is to take account of Iran’s technological advances, its enhanced enrichment capabilities, improved centrifuges, and its alleged closer approach in knowhow and time to acquisition of nuclear weaponry. It is notable that the CIA director has recently declared that there is no evidence that Iran is seeking a nuclear weapons capability. Nevertheless, the expiration of key clauses of the 2015 JCPOA in 2030 is sufficiently close that there is pressure on the US, especially from Israel and counter-proliferation extremists to insist upon a longer termination date of 25 years from the time that a new agreement is signed.

Q5: Biden administration says it is not going to guarantee that the US will not withdraw from the possible future agreement like what Trump did. And even some in Washington are threatening to kill any agreement that Biden may reach. How do you assess the US stance and its effect on the talks’ process? How may U.S. domestic competitions ruin any chance of reaching a good nuclear pact?

I think this risk of a future obstruction of an agreement within the US is very high. The prospect of Republican electoral success in 2022 and 2024 elections cannot be disregarded, and are reinforced by public opinion polls.

Such outcome would undoubtedly raise pressures for restoring the Trump approach to Iran and an overall approach to Middle East politics more in accord with Israel’s preferences. It may be because Biden accords priority to domestic issues, including COVID, public funding of infrastructure (roads, bridges, airports, renewable energy), and improved race relations that the US will continue to adhere to its version of a hardline approach with regard to both the Vienna negotiations on nuclear issues and in its overall relationship with Iran. At the same time, the US Government seems likely to engage in crisis management if the talks breakdown, and may believe it will have enhanced leverage to restrain Israel if it maintains the present status quo with Iran, meaning no new agreement and no sanctions relief. I think this would be a dangerous turn of events, likely to lead to a downward spiral in the Middle East that could produce open warfare.

Q6: Under such fragile circumstances threatening any possible agreement, how constructive role can Europe play? Basically, is Europe independent enough to be able to play a constructive role in securing any possible agreement? Or it will behave inactively as it did after Trump’s withdrawal?

I believe Europe is not likely to exert much influence on US diplomacy with Iran unless it fears the effects of a slide into war or aggravated instability in the Middle East. Europe seems currently more concerned about relations with Russia and China at this point, feeling a renewed dependence on the NATO alliance for its own security. In an atmosphere of a second Cold War Europe seems as though it will continue to accept Washington’s leadership. As well, European governments, above all Germany, but also France and the UK, remain subject to considerable pressure from Israel, and are not likely to take a strong independent position that is opposed by either Washington or the Israeli government.

I think Iran’s main source of leverage is to continue exploring the benefits of geopolitical realignment, especially in relation to China and Russia, but also seeking greater support from the Islamic world and by way of regional accommodations. .

Further in the background of the Vienna talks but in some respects Iran’s strongest diplomatic tool would be to support and advocate long languishing proposals for a Middle East Nuclear Weapons Free Zone (MENWFZ). Iran has somewhat surprisingly not yet voiced public vigorous objections to Israel’s acquisition of nuclear weaponry and their subsequent development. By making the MENWFZ an active peace proposal, perhaps enlarged to encompass categories of Weapons of Mass Destruction (that is, chemical and biological weapons), Iran would be taking a constructive stand consistent with its commitment to its reliance on non-nuclear defense capabilities and a security posture based on mutual principles of non-aggression.

Iran has a strong interest in promoting denuclearization for the region. Doing so would have additional benefits. It would expose Israel’s nuclearism, and accompanying hypocrisy. It might even exert pressure on Israel to change course and itself become receptive to the virtues of MENWFZ, which might include normalization of all inter-governmental relations. To make such an approach politically and morally feasible for Tehran, it would be important to reaffirm Iranian solidarity with the Palestinian struggle for basic rights. This factor would undoubtedly complicate the diplomacy surrounding the nuclear issue as Tehran would be inhibited from using ‘normalization’ with Israel as a bargaining chip in the nuclear context so long as Palestinian rights are being denied.

By raising these issues, I am suggesting the need for fresh thinking on all sides if the present signs of an impasse relating to the future of JCPOA are to be overcome, or if the Vienna process proves to be a failure with both sides shifting blame away from itself. This impasse would not exist, in my judgment, if Israel was not part of the diplomatic equation. This dysfunctional obstacle should be overcome or circumvented, and JCPOA restored in a form acceptable to both sides. Even should a favorable result be reached, it will not remove Israel from relevance, but would likely find Washington scrambling to provide Israel with tangible reassurances that its ‘special relationship’ with the US remains operative. Quite possibly, and most unfortunately, this could result in one more Palestinian setback in their struggle for basic rights if care is not taken by Iran to do its best to avoid such blowback side-effects or providing Israel with the latest weaponry or the funds to ensure that it maintains its regional edge with respect to military power.

Tags: Iran Nuclear Agreement, Israel

Comments 7 Comments
Categories Iran Nuclear Agreement, Iran nuclear diplomacy, JCPOA

Palestine is Winning the Legitimacy War

19 May

[Prefatory Note: This opinion piece was published in Middle East Eye on May 18,2021, and republished in Il Manifesto and The Wire under different titles. It attempts to contextualize the current violence directed against Gaza in earlier Israeli provocations. It also takes note of Israel’s reliance on excessive force in its attack upon an essentially helpless Gazan civilian population of over two million people trapped inside a crowded and unlawfully blockaded enclave. The communal violence between Arabs and Jews in Israeli towns and villages, the unity displayed by Palestinians inside and outside the occupied territories, the protests at the borders of Jordan and Lebanon, the Jewish dissent from Israeli criminal assault on Gaza, and the greater receptivity of the Western media and even the US Congress to Palestinian grievances different than past interludes of severe violence. The future will tell us whether finally an inflection point in the Palestinian struggle has been reached in which the path to peace is cleared by the fusion of resistance from within and solidarity from without.]

The Last Stand of Settler Colonialism: Apartheid Israel

The current crisis of Palestine/Israel deepens and widens as casualties mount, smoke from destroyed buildings blacken the sky over Gaza, rioting on the streets of many Israeli and West Bank towns, Israeli police disrupting worshippers in the Al-Aqsa mosque compound and protecting extremist Jewish settlers shouting genocidal slogans ‘death to the Arabs’ in their inflammatory marches through Palestinian neighborhoods. Underlying this entire eruption of tensions between oppressor and oppressed were the flimsy legalized evictions of six Palestinian families long resident in the Sheikh Jarrah. These evictions epitomized the long Palestinian ordeal of persecution and banishment in what psychologically remains their homeland. While this mayhem continues the lights have remained scandalously dim at the UN. Western leaders pathetically call for calm on both as if both sides shared equal blame, while perversely affirming the one-sidedness of ‘Israel’s right to defend itself,’ which supposes that Israel had been attacked out of the blue.

Is this but one more cycle of violence exhibiting the unresolvable clash between a native people overwhelmed by a colonial intruder emboldened by a unique religiously grounded settler sense of entitlement? Or are we witnessing the beginning of the end of the century long struggle by the Palestinian people to defend their homeland against the unfolding Zionist Project that stole their land, trampled on their dignity, and made Palestinians victimized strangers in what had been their national home for centuries? Only the future can fully unravel this haunting uncertainty. In the meantime, we can expect more bloodshed, death, outrage, grief, injustice, and continuing geopolitical interference. What these events have made clear is that the Palestinians are withstanding prolonged oppression with their spirit of resistance intact, and refuse to. be pacified regardless of the severity of the imposed hardships. We also are made to appreciate that the Israeli leadership and most of its public is no longer in the mood even to pretend receptivity to a peaceful alternative to the completion of their settler colonial undertaking despite its dependence on a weaponized version of apartheid governance.

THE HASBARA NARRATIVE

For Israelis and much of the West the core narrative continues to be the violence of a terrorist organization, Hamas, challenging the peaceful state of Israel with destructive intent, making the Israeli response seem reasonable as both a discouragement of the rockets but also as a harsh punitive lesson for the people of Gaza designed to deter future terrorist attacks. The Israeli missiles and drones are deemed ‘defensive’ while the rockets are acts of ‘terrorism’ even though Israeli human targets are seldom hit, and despite the fact that it is Israeli weaponry that causes 95% of the widespread death and destruction among the over two million civilians Gazans who have been victims of an unlawful and crippling blockade that since 2007 has brought severe suffering to the impoverished, crowded, traumatized Palestinian enclave long enduring unemployment levels above 50%.

In the current confrontation Israel’s control of the international discourse has succeeded in de-contextualizing the timeline of violence, having the effect of leading those with little knowledge of what induced the flurry of Hamas rockets to believe falsely that the destruction in Gaza was a retaliatory Israeli reaction to hundreds of rockets launched by Hamas and Gaza militia groups. With abuses of language that might even surprise Orwell, Israel’s state terrorism is airbrushed by the world along with the rebuff of Hamas’ peace diplomacy over the past 15 years that has repeatedly sought a permanent ceasefire and peaceful coexistence.

For Palestinians, and those in solidarity with their struggle, Israel knowingly allowed the subjugated population of East Jerusalem to experience a series of anguishing humiliations to occur during the holy period of Muslim religious observances in Ramadan rubbing salt in the a wounds recently opened by the Sheikh Jarrar evictions, which had the inevitable effect of refreshing Palestinian memories of their defining experiences of ethnic cleansing days before the annual May 15^th observance of the Nakba. This amounted to a metaphoric reenactment of that massive crime of expulsion accompanying the birth of Israel in 1948, culminating in the bulldozing of several hundred Palestinian villages signaling a firm Israeli intention to make the banishment permanent.

SOUTH AFRICAN APARTHEID

Unlike South Africa, which made never claimed to be a democracy, Israel legitimated itself by presenting itself as a constitutional democracy. This resolve to be a democracy came with a high price tag of deception and self-deception, necessitating to this day a continuing struggle to make apartheid work to secure Jewish supremacy while hiding Palestinian subjugation. For decades Israel was successful in hiding these apartheid features from the world because the legacy of the Holocaust lent uncritical credence to the Zionist narrative of providing sanctuary for the survivors of the worst genocide known to humanity. Additionally, the Jewish presence was making the desert bloom, while at the same time virtually erasing Palestine grievances, further discounted by hasbara visions of Palestinian backwardness as contrasting with Israeli modernizing prowess, and later on by juxtaposing a political caricature of the two peoples portraying Jewish adherence to Western values as opposed to Palestinian embrace of terrorism.

WINNING THE LEGITIMACY WAR

Recent developments in the symbolic domains of politics that control the outcome of Legitimacy Wars have scored several victories for the Palestinian struggle. The International Criminal Court has authorized the investigation of Israeli criminality in Occupied Palestine since 2015 despite vigorous opposition from the leadership of the Israeli government, fully supported by the United States. The investigation in The Hague, although proceeding with diligent respect for the legalities involved, was not openly engaged by Israel, but rather was immediately denounced by Netanyahu as ‘pure antisemitism.’

Beyond this, the contentions of Israeli apartheid, which only a few years ago was similarly denounced when an academic report commissioned by the UN concluded that the allegation of apartheid was unequivocally confirmed by Israeli policies and practices of an inhuman character designed to ensure Palestinian victimization and Jewish domination. In the past few months both B’Tselem, Israel’s leading human rights NGO, and Human Rights Watch, have issued carefully documented studies that reach the same startling conclusion that the Israel indeed administers an apartheid regime within the whole of historic Palestine, that is, the Occupied Palestinian Territories plus Israel itself. While these two developments do not alleviate Palestinian suffering or the behavioral effects of enduring denial of basic rights, they are significant symbolic victories that stiffen the morale of Palestinian resistance and strengthen the bonds of global solidarity. The record of struggles against colonialism since 1945 support reaching the conclusion that the side that wins a Legitimacy War will eventually control the political outcome, despite being weaker militarily and diplomatically.

The endgame of South African apartheid reinforces this reassessment of the changing balance of forces in the Palestinian struggle. Despite having what appeared to be effective and stable control of the African majority population through the implementation of brutal apartheid structures, the racist regime collapsed from within under the combined weight of internal resistance and international solidarity. Outside pressures included a widely endorsed BDS campaign enjoying UN backing. Israel is not South Africa in a number of key aspects, but the combination of resistance and solidarity was dramatically ramped upwards in the past week. Israel has already long lost the main legal and moral arguments, almost acknowledging this interpretation by their defiant way of changing the subject with reckless accusations of antisemitism, and is in the process of losing the political argument.

Israel’s own sense of vulnerability to a South African scenario has been exposed by this growing tendency to brand supporters of BDS and harsh critics as ‘antisemites,’ which seems in the context of present development best described as ‘a geopolitical panic attack.’ I find it appropriate to recall Gandhi’s famous observation along these lines: “first, they ignore you, then they insult you, then they fight you, then you win.”

Tags: apartheid, Gandhi, Israel, Legitimacy Wars, Palestine, Symbolic Politics

Comments 5 Comments
Categories aapartheid, hasbara, Israel/Palestine, Legitimacy War, South Africa

The Geopolitics of the Normalization Agreements

10 Mar

Listen Closely to the Israeli Discourse in an American Liberal Idiom: Geopolitical Dreams, Ethical Nightmares

Thomas Friedman is both an echo of the liberal establishment and a media force to be reckoned with when it comes to post-cold war, post-Trump America. Known for championing the excesses of modernity by conceiving of technology, markets, capital flows, permissive social norms, and science-based truth and rationality as alone capable of offering promises of a good life for everyone. Friedman’s tone has always been arrogant and condescending. He is never shy about offering the rich and powerful the benefit of his technocratic wisdom. When it comes to foreign policy especially in the Middle East, and most particularly where Israel is involved, Friedman seeks to mount a guru’s pedestal so as to position himself above the fray, yet he never departs from the party line that unconditionally affirms Israel while being blind to Palestinian grievances and hostile to Palestinian resistance and global solidarity initiatives. In other words, Friedman is to liberal Zionism, what Sheldon Adelson was to militant Zionism as epitomized by the Netanyahu leadership, but whose stance is endorsed by the spectrum of right-wing political parties in Israel that dominate the scene when it comes to victimizing the Palestinian people.

Yet even judging by the low standards that Friedman has set for himself over the years, his most recent NY Times opinion piece was as grotesque as informed commentary on the Middle East can become, especially if read carefully, and with a critical eye. Published as an opinion piece on March 2^nd with a title that is as foolishly flippant as the text that follows is pernicious: “Jumping Jehoshaphat: Have You Seen How Many Israelis Just Visited the U.A.E.” As if Israeli shopping trips to Dubai or Abu Dubai are political signposts indicating that the region has started to overlook the Palestinian struggle for basic rights, and get on with the more important work of servicing consumers and tourists. If a spike in U.A.E. shopping is one sign, the ICC decision of February 5^th to proceed further with investigate well-evidenced allegations of Israeli criminality in Occupied Palestine points in quite a different direction. It seems revealing that this latter development does not warrant even a nod of recognition in Friedman’s warped imagination that heeds market signals far more than international law grievances, especially if put forth by adversaries of the U.S. or Israel.

It is tempting to deal comprehensively with the several perversions of policy encountered in the course of a journalistic piece of less than 1,000 words, but I will mention only those that seem most outrageous from the perspective of law, morality, and transparency. The piece can be read as above all a promotional boost for the normalization agreements reached in the last weeks of the Trump presidency, a triumph of Washington bullying governments. It not only gave Israel a big political victory but helped show the folks back home that Trump’s style of diplomacy succeeded where his more highminded predecessors had failed. Despite being a strident critic of Trump in conformity with his liberal persona, Friedman has this to say about the normalization agreements, which he further blesses by adopting the self-glorifying name of the Abraham Accords bestowed by supporters: “I believed from the start that the opening between Israel, Bahrain, Morocco and Sudan—forged by Jared Kushner and Donald Trump could be game-changing.” Not a word about the arms deals and diplomatic payoffs made to twist the arms of the Arab governments, and not even a notation that this normalization ploy was the Trumpist culmination of carrying pro-Israeli partisanship to its extremes, which meant proceeding as if the Palestinians are to be seen nor heard as little as possible, and certainly never acknowledged.

Friedman goes on to say that it is too soon to know whether this good news will go further, recalling his disappointment that the once seemingly hopeful bonding of Israel with Lebanese Christians in the early 1980s turned out to be a ‘shotgun wedding and divorce.’ This meant that this promise an Arab-Israeli rapprochement was nothing more than a disillusioning house of cards that failed to produce lasting results of achieving peaceful relations with Arab countries without the inconvenience of doing something for the Palestinians. Again, it is the silences that are the most revealing aspect of Friedman’s lament. There is not a word in the column that the peak moment of bonding between Israelis and Lebanese Christians came during the Lebanon War of 1982, reaching its dramatic climax when Israel’s IDF collaborated with the Maronite militias in overseeing the civilian massacres in the Palestinian refugee camps of Sabra and Shatila. To lament the breakdown of this ill-fated marriage of convenience, without noting one of the starkest mass atrocities of the past half century in the region, is a typical embodiment of Friedman’s hypocritical morality and opportunistic geopolitics. Friedman does not stop there. He adds a gratuitous insult directed at Hezbollah coupled with a passing slur directed at Iran because it supports Hezbollah, and thus has the temerity to challenge Israeli/Saudi/U.S. phantasies.

Bad as is this foray into the tragic realities of Lebanese politics, worse is to come. Friedman regards the real payoff of the Trump normalization process is situated in the future. He conjectures that a parallel agreement with Saudi Arabia would be the crown jewel of the process, opining that such “..normalization would be huge for both Israel-Arab and Jewish-Muslim relations.” At the same time, Friedman reluctantly recognizes that the murder of Kamal Khashoggi is seen by some as an awkward impediment to reach this proclaimed goal. Here is how Friedman frames the grisly event: “The CIA-reported decision to have Saudi democracy advocate Jamal Khashoggi, who a long-time U.S. resident, killed and dismembered was utterly demented—an incomprehensible response to a peaceful critic who no threat to the kingdom.”

The language, as always with Friedman is revealing in ways that should make this journalist of post-colonial imperialism squirm. Why the word ‘demented,’ meaning bizarre action without rational justification, when the act in question was a wonton criminal abuse of power, accentuated by the misuse of diplomatic facilities to carry out an act of aggravated state terror—the Saudi Consulate in Istanbul. Further that the killing Khashoggi was ‘incomprehensible’ because it served no state purpose since there was ‘no threat to the kingdom.’ Cynical and hypocritical to the core: Hezbollah is demeaned for no reason, while a much deserved condemnation of MBS is sidestepped by Friedman’s rather implausible claim of being mystified by what he portrays as the senseless murder of Khashoggi a harmless critic of Mohamed bin Salmon’s Saudi imperium. Having taken note of the bloody deed, Friedman makes his priorities unmistakable by giving a green light to the nefarious business of geopolitics. Friedman always ready to provide unsolicited advice, without pausing for a breath of fresh air, observe that while “[t]he Biden team is still sorting out how it will relate to MBS” it remains right “to insist that that America will continue to deal with Saudi Arabia in general as an ally.”

Without the slightest show of moral inhibition, Friedman cuts to the chase, affirming the triangular relations between Saudi Arabia, Israel, and the United States as a constructive partnership in the region. He celebratory mood is expressed as follows: “If the Abraham Accords do thrive and broaden to include normalization between Israeli and Saudi Arabia, we are talking about one on the most significant realignments in modern Middle Eastern history, which for many decades was largely shaped by Great Power interventions and Arab-Israeli dynamics. Not anymore.” Again, this realignment is presupposed to be a constructive development without any indications of qualifications either by reference to the dangers of inclining the region even more toward a military confrontation with Iran or by acting as if the daily Palestinian ordeal was not worth addressing in the course of assessing such a diplomatic misadventure.

Friedman does go on to contend implausibly that in such an altered diplomatic environment, Israel might become more amenable to a two-state solution without even pausing to point out that even under pressure, Israel never wanted to co-exist with a viable Palestinian state, and now with the rightward drift of its internal politics and its guaranty of continued unconditional support in Washington, it no longer needs to pretend. The accelerating growth of Israeli settlements in defiance of the UN, the deferred pledges of substantial annexation of the West Bank, and the evident resolve by Israel to uphold its claim to govern Jerusalem as a unified whole, capital for Israel alone, makes any resurrection of two-state diplomacy an even crueler bad joke than Oslo told to the world while Palestinian aspirations are drenched in blood and the Palestinian people faced with an indefinite prospect of suffering under an apartheid Israeli regime.

The fact that the Biden presidency wasted no time resurrecting the two-state corpse is the clearest possible demonstration of the moral and political bankruptcy of U.S. policy with respect to the Palestinian struggle to achieve basic rights after many decades of denial. Unlike the Trump years, Friedman can exult in the reality that he is no longer out of step with those who preside over policymaking in the White House when it comes to the Middle East. And now post-Trump I am quite sure Friedman would not urge the Biden/Blinken to take back any of the unlawful gifts bestowed on Israel during the four Trump/Kushner years, including the Syrian Golan Height, the UN-defying move of the American Embassy to Jerusalem, the ‘legalization’ of the settlements along with de facto annexation of significant territory in occupied Palestine.

Tags: Biden/Blinken, Israel, Jamal Khashoggi, Normalization Agreements, Sabra & Shatila, Saudi Arabia

Comments 13 Comments
Categories liberalism, Middle East geopolitics, Normalization Agreements, Thomas Friedman

Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

[Prefatory Note: What is posted below is an Amicus Brief submitted to the International Criminal Court in The Hague on 16 March 2020 in the jurisdictional phase of a proceeding in which to initiate such a legal proceeding and whether the ICC has jurisdiction, that is, legal authority to investigate and possibly prosecute such alleged. As the Prosecutor indicated, the facts at her disposal indicate a basis for accepting Palestine’s request forPearce an investigation of alleged Israeli criminal conduct on three clusters of issues: (1) military operations in Gaza in 2014, (2) unlawful aspects of Israeli settlements, aand (3) use of excessive force against protesters at the Gaza border in The Great March of Return. The focus of this procedural phase is whether Palestine is ‘a State’ in relation also suggest evidence of criminal behavior by Hamas that she believes within her jurisdictional orbit. The ICC has deferred further proceedings in view of the COVIS-19 pandemic, which has led to protests from concerned NGO groups and activists. The brief was prepared with major research assistance from Pearce Clancy and Susan Power of Al Haq for which I am extremely grateful. In the background is the undisguised and bitter hostility of the Government of Israel and its political leaders to Palestine for seeking an international assessment of their contention of Israeli criminality almost as if a legal challenge to Israeli impunity is itself immoral. The United States vents its fury and threats in an analogous manner at the ICC because it had the temerity to agree to investigate charges of U.S, war crimes in Afghanistan. There will be no global rule of law so long as geopolitical actors are made the beneficiaries of double standards in the application and implementation of international law. Earlier the ICC was almost solely preoccupied with allegations involving Africa, and there was an understandable African complaint that its countries were being singled out, while criminality of the West was not even investigated. While this turn by the ICC angering Israel and the United States delegitimizes the ICC for the hegemonic West, it lends the ICC much needed legitimacy among many non-Western States and most human rights NGOs.]

Original: English

No.: ICC-01/18
Date: 16 March 2020

Before:

Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

ICC-01/18-77 16-03-2020 1/29 NM PT

Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

No. ICC-01/18 1/29 16 March 2020

Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

·
·
···
····
·

Professor John Quigley
Guernica 37 International Justice Chambers
The European Centre for Law and Justice
Professor Hatem Bazian
The Touro Institute on Human Rights and the Holocaust
The Czech Republic
The Israel Bar Association
Professor Richard Falk
The Organization of Islamic Cooperation
The Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs
MyAQSA Foundation
Professor Eyal Benvenisti
The Federal Republic of Germany Australia
UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
The Palestinian Bar Association
Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond- Barak, Prof.

ICC-01/18-77 16-03-2020 2/29 NM PT

No. ICC-01/18

2/29

16 March 2020

Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker The International Association of Jewish Lawyers and Jurists

Professor Asem Khalil and Assistant Professor Halla Shoaibi
Shurat Hadin – Israel Law Center Todd F. Buchwald and Stephen J. Rapp

Intellectum Scientific Society
The International Commission of Jurists
Dr. Robert Heinsch and Dr. Giulia Pinzauti
The Republic of Austria
The International Association of Democratic Lawyers
The Office of Public Counsel for the Defence
The Honourable Professor Robert Badinter, the Honourable Professor Irwin Cotler, Professor David Crane, Professor Jean-François Gaudreault- DesBiens, Lord David Pannick and Professor Guglielmo Verdirame
The Palestinian Center for Human Rights, Al-Haq Law in the Service of Mankind, Al- Mezan Center for Human Rights and Aldameer Association for Human Rights
The Federative Republic of Brazil Professor Malcolm N Shaw
Hungary
Ambassador Dennis Ross
The International Federation for Human Rights, No Peace Without Justice, Women’s Initiatives for Gender Justice and REDRESS Professor William Schabas International-Lawyers.org
The League of Arab States
Me Yael Vias Gvirsman
The Popular Conference for Palestinians Abroad
The Israel Forever Foundation
Dr. Frank Romano
Dr. Uri Weiss
The Republic of Uganda

ICC-01/18-77 16-03-2020 3/29 NM PT

No. ICC-01/18 3/29

16 March 2020

ICC-01/18-77 16-03-2020 4/29 NM PT

Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

No. ICC-01/18 4/29 16 March 2020

Introduction

Following the submission of an application for leave to submit as part of the present proceedings,1 and its subsequent acceptance by this Chamber,2 this amicus curiae submission will address the question directed to the Chamber, namely that of the territorial jurisdiction of the Court in a future investigation into the Situation in Palestine.3
Mindful of the fact that a pronouncement by the Chamber on the question of jurisdiction at this stage is controversial,4 this amicus argues that should a ruling be made at this stage, it must recognise the jurisdiction of the State of Palestine as pertaining to the entirety of the occupied Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip. The legal argument will be presented in two stages. Section II will deal with the underlying question of Palestinian statehood under international law, noted as a prerequisite for invoking the jurisdiction of this Court by the State of Palestine, arguing that the Court should be satisfied that Palestine’s status as a State for the purposes of the Court’s statutory framework allows exercise of such authority, and that the principles of interpretation by which the Court operates mandates such a conclusion. Section III will regard the question of statehood as resolved, and address the territorial jurisdiction of each component of

1 Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence (13 February 2020) ICC-01/18-24.

2 ICC, Decision on Applications for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence (20 February 2020) ICC-01/18, para 55, 56.

3 See ICC, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (22 January 2020) ICC-1/18-12 (henceforth the “Request”) at para 220.

4 ICC, Request Under Regulation 46(3) of the Regulations of the Court: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (6 September 2018) ICC-RoC46(3)-01/18, para 27; ICC, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut (6 September 2018) ICC- RoC46(3)-01/18-37-Anx; see, however, Anthony Abato, ‘False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC (9 March 2020), available at: https://www.ejiltalk.org/false- positives-false-negatives-and-prosecutorial-discretion-regarding-the-jurisdiction-of-the-icc/: “When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.”

ICC-01/18-77 16-03-2020 5/29 NM PT

No. ICC-01/18 5/29 16 March 2020

occupied Palestinian territory, arguing that the Court’s jurisdiction extends to the West Bank, East Jerusalem, and the Gaza Strip.

The Issue of Statehood

While recognising the scope set by the Pre-Trial Chamber (PTC) within which amici curiae have been requested to abide, I concur with the recognition by the Prosecutor that the Court’s territorial jurisdiction over the territory belonging to the State of Palestine is contingent upon the legitimacy of that State’s claim to statehood.5 Accordingly, and as outlined in the Request for Leave pursuant to Rule 103 of the Rules of Procedure and Evidence,6 this section will provide a brief analysis of the question of Palestinian statehood within the framework of the Rome Statute.7
It is submitted that as a matter of substantive international law, Palestinian statehood has been resolved. While not indicative of statehood in and of itself,8 the recognition thereof by the United Nations (UN) General Assembly in Resolution 67/19 of 4 December 20129 is indicative of widespread academic opinion and State practice.10 Also highly relevant, the

5 Request at para 7; see also Article 12, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (henceforth the “Rome Statute”).

6 ICC, Rules of Evidence and Procedure (2nd edn, 2013).
7 See Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and

Evidence (13 February 2020) ICC-01/18-24, at para 4.

8 Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A comment on Ambos’ ‘Palestine, ‘Non- Member Observer’ Status and ICC Jurisdiction’’ (27 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status- and-icc-jurisdiction/#more-10954; it has been compellingly argued that the modern Palestinian State long pre- dates recognition by the General Assembly, see, inter alia, Victor Kattan, ‘Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I’ (9 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/09/muddying-the-waters-a-reply-to-kay-and-kern-on-the-statehood-of-palestine- and-the-icc-part-i/; Victor Kattan, ‘Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern’ (20 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/20/muddying-the-waters-still- further-a-response-to-steven-kay-and-joshua-kern/.

9 UN General Assembly Resolution 67/19 (4 December 2012) UN Doc. A/RES/67/19 at para 2: “[d]ecides to accord to Palestine non-member observer State status” (emphasis added).

10 See, inter alia, John Quigley, ‘ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC’ (5 February 2020) Opinio Juris, available at: https://opiniojuris.org/2020/02/05/icc-and-palestine-symposium-general-assembly-resolution-67-19-and- palestine-as-a-state-before-the-icc/, arguing that Resolution 67/19 was conclusive; also John Quigley, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016).

ICC-01/18-77 16-03-2020 6/29 NM PT

No. ICC-01/18 6/29 16 March 2020

State of Palestine has been diplomatically recognised by a reported 140 States,11 has been afforded full membership of the UN Educational, Scientific and Cultural Organization (UNESCO),12 inducted into the Court’s Assembly of States Parties (ASP),13 recognised and been reviewed by UN human rights treaty bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) in July 201814, the UN Committee for the Elimination of Racial Discrimination (CERD) in August 201915, the UN Committee on the Rights of the Child (CRC) in January 202016, and soon the UN Committee Against Torture (CAT)17, as being capable of conferring jurisdiction under the relevant international human rights treaties, while it has further acceded to myriad international

11 As reported in UN General Assembly, Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (4 August 2019) UN Doc A/74/35, para 17.

12 UNESCO, General Conference admits Palestine as UNESCO Member (31 October 2011), available at:

http://www.unesco.org/new/en/media-services/single- view/news/general_conference_admits_palestine_as_unesco_member/; UNESCO, Records of the General Conference, 36th session (25 October-10 November 2011) VI General Resolutions, at para 76; note also that considerable weigh has been put on Palestine’s status as a UNESCO member, see Jure Vidmar, ‘Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state’ (22 November 2018) available at: https://www.ejiltalk.org/palestine-v-united-states-why-the-icj-does-not-need-to-decide-whether-palestine-is- a-state/; William Schabas, ‘Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute’ (3 November 2011) PhD studies in human rights, available at: http://humanrightsdoctorate.blogspot.com/2011/11/relevant-depositary-practice-of.html; Michael Kearney, ‘The Situation in Palestine’ (5 April 2012) Opinio Juris, available at: http://opiniojuris.org/2012/04/05/the-situation- in-palestine/.

13 ICC, Welcoming ceremony for a new State Party: State of Palestine (1 April 2015).

14 See Article 25, Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) 1249 UNTS 13: “The present Convention shall be open for signature by all States”; see also CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1.

15 See Article 17(1), International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 UNTS 195 (henceforth “ICERD”): “This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention”; CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2; see also decision at CERD, Inter-State communication submitted by the State of Palestine against Israel (12 December 2019) UN Doc CERD/C/100/5 (henceforth the “CERD Decision”).

16 See Article 46, Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3: “The present Convention shall be open for signature by all States”; see also CRC, Concluding Observations: State of Palestine (6 March 2020) UN Doc CRC/C/PSE/CO/1.

17 Article 25, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85: “This Convention is open for signature by all States”; see also Palestine’s State Report: State of Palestine, Initial report submitted by the State of Palestine under article 19 of the Convention, due in 2015(26 August 2019) UN Doc CAT/C/PSE/1.

ICC-01/18-77 16-03-2020 7/29 NM PT

No. ICC-01/18 7/29 16 March 2020

treaties and human rights instruments, including the Apartheid Convention18, Rome Statute,

the four Geneva Conventions and their Additional Protocols.19

Nonetheless, an analysis as to statehood appears to be necessary, given the prerequisite

found in Article 12, as well as the corpus of argumentation outlined in amici applications in preparation of the current proceedings. That said, it is submitted that the PTC is bound to consider this issue as a matter of procedural, as opposed to substantive law. I agree with the Prosecutor in her opinion that the determination to be made by the Court is not whether Palestine constitutes a State as a matter of general international law, but solely for the purposes of the Court’s jurisdiction under the Rome Statute.20

The PTC therefore need not consider what have been dubbed the “Montevideo Criteria”21 of statehood.22 Instead, the PTC need only consider whether the referral submitted by the State of Palestine23 is consistent with the terms of Article 12(2)(a) of the Rome Statute, having reference to the accepted rules of interpretation outlined in the Vienna Convention

18 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entry into force 18 July 1976) UN General Assembly Resolution A/RES/3068(XXVIII).

19 Request, para 127; note also Victor Kattan, ‘The Implications of Joining the ICC after Operation Protective Edge’ (2014) 44(1) Journal of Palestine Studies 63: “The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood.”

20 Request, para 42, 111; Alain Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ (2010) 6, available at: https://iccforum.com/media/background/gaza/2010-02-18_Pellet- Memo_(English_Translation).pdf.

21 Article 1, Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934): “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

22 In any case, the Montevideo Criteria should not be viewed as a rigid yardstick with which to judge statehood, on this, and the context in which the Convention was drafted, see Quigley op cit (2020); see also James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2007) at 437: “… the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even hackneyed.”

23 State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 May 2018).

ICC-01/18-77 16-03-2020 8/29 NM PT

No. ICC-01/18 8/29 16 March 2020

on the Law of Treaties,24 and the object and purpose of the Rome Statute, namely to end

impunity for international crimes.25

As the Prosecutor has compellingly argued, the status of a “State” within the context of

Articles 12(1), 12(2), and 125(3) of the Rome Statute, being consistent throughout, has been concretely achieved by the deposit of Palestine’s instrument of accession with the UN Secretary-General.26 The so-called “all States” formula embedded in the framework of the Rome Statute27 necessarily links the eligibility criteria for accession to determinations of the General Assembly.28 Thus, accession to the Rome Statute contains an implicit “statehood check”, whereby the Secretary-General confirms whether the entity attempting to accede constitutes a State under international law. While deference to the pronouncements of the General Assembly is controversial to some observers, it must be stressed that this approach is consistent with previous Court practice regarding Palestine,29 and is desirable to avoid a situation in which the final pronouncement on statehood for the purposes of a given instrument falls entirely on the Secretary-General.30

The question, therefore, is not whether Palestine constitutes a State as such, but whether, through its accession to the Rome Statute, as well as other instruments and fora, it has

24 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (henceforth the “VCLT”).

25 Request, para 29: “to end impunity and ensure that the Court’s jurisdiction is triggered responsibly and lawfully”; ICC, Separate Opinion of Judge Péter Kovács (27 January 2016) ICC-01/15-12-Anx-Corr, para 65: “a policy running against the basic philosophy of the ICC, namely to end impunity”; Preamble, Rome Statute: “the most serious crimes of concern to the international community as a whole must not go unpunished”; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) 77: “… its role is also geared towards preventing or deterring future atrocities”; interestingly it is worth noting Vidmar’s contention, op cit, in the context of the International Court of Justice: “… regulating an entity’s legal status is clearly not the object and purpose of the treaty” (emphasis added).

26 Request, para 103.
27 Article 125(3), Rome Statute.

28 See Treaty Section, UN Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999) UN Doc. ST/LEG/7/Rev.1, paras 81-83.

29 While the former Prosecutor refrained from opening an investigation due to concerns of jurisdiction, his analysis suggests that his Office’s position would have been different had the General Assembly passed Resolution 67/19 by that time, see Office of the Prosecutor, Situation in Palestine (3 April 2012) at paras 5, 7, available at: https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A- FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.

30 Request, para 109.

ICC-01/18-77 16-03-2020 9/29 NM PT

No. ICC-01/18 9/29 16 March 2020

attained the full suite of rights and obligations found therein; here, the answer should be in the affirmative, given Palestine’s acceptance as both a State Party and functional member of the international community. This approach, referred to as the “functionalist approach” has a strong basis elsewhere in the field of international law,31 and has been widely endorsed, explicitly or otherwise, by commentators as the appropriate lens for the Court.32 This was appreciated recently by CERD in its jurisdictional finding on the Inter-State Complaint submitted by Palestine, which did find it necessary to extend its analysis beyond Palestine’s status, and functional capacity to act, as a State Party to ICERD.33

Moreover, it should be stressed that this approach is not merely consistent with the object and purpose of the Rome Statute, but is arguably mandated by the “General Rule” of interpretation.34 As previously affirmed by the Court, this judicial body is not permitted to decline to draw on a particular element of the “General Rule”,35 and should interpret all sources of law in light of the object and purpose of the Rome Statute,36 while doing what is necessary to avoid results that are unreasonable, or produce absurdities and unjust results.37 The Rome Statute thus requires its interpretation to be carried out in light of internationally

31 While not directly applicable to the Rome Statute framework, the best example of this is the so-called “Vienna Formula”, stemming from Article 81, VCLT, see: Schabas op cit; on the prevalence of functionalism elsewhere, see Pellet op cit, para 9.

32 See, inter alia: Valentina Azarova and Triestino Mariniello, ‘Why the ICC Needs a ‘Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context’ (2017) 11(1) Diritti Umani e Diritto Internazionale (Human Rights and International Law) 152-154; Pellet op cit; Kai Ambos, ‘Palestine, UN Non-Member Observer Status and ICC Jurisdiction’ (6 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/; Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016) 31-35; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen’ (2010) 8 Journal of International Criminal Justice 329; Al-Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under Article 12(3) of the Rome Statute (14 December 2009).

33 CERD Decision, para 3.9. 34 Article 31(1), VCLT.

35 ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga: Judgement pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, para 44.

36 Ibid., 47.
37 ICC, Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo (21

March 2016) ICC-01/05-01/18, paras 80-81.

ICC-01/18-77 16-03-2020 10/29 NM PT

No. ICC-01/18 10/29 16 March 2020

recognised human rights norms,38 which must necessarily include the long recognised right of the Palestinian people to self-determination, a jus cogens norm,39 which gives rise to obligations erga omnes, binding on all States.40 As certain acts by the State of Israel in the occupied Palestinian territory create obligations of such a character,41 this must be considered in the PTC’s interpretative calculus. The Prosecutor alludes to this in her Request, wherein she notes that “[i]t would appear contrary to the principle of effectiveness42 and good faith to allow an entity to join the ICC but then to deny the rights and obligations of accession … the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.”43

It is useful to dwell on the implications of a negative determination of Palestine’s standing as a State Party before the Court: “[w]ould a referral and the deposit of the instrument of accession … be deemed invalid? Would that State Party be expelled from the Court? Or would it become a sui generis State Party which can still participate and vote in the ASP … even though the Court may not have jurisdiction over such a State?”44 If such a perverse approach were adopted, Palestine would be rendered as akin to a “legal black hole”, despite its accession.45

38 Article 21(3), Rome Statute.

39 Antonio Cassese, International Law (2nd edn, Oxford University Press, 2005) 65; Malcolm N Shaw, International Law (6th edn, Cambridge University Press, 2008) 808; James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (25 January 2012) para 26, available at: https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.

40 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 (Advisory Opinion) (1971) para 29 (henceforth the “Namibia Opinion”).

41 ICJ, Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) para 155-156 (henceforth the “Wall Opinion”).

42 Defined in ICC, Joint Concurring Opinion of Judges Eboe-Osuji,Morrison, Hofmanski and Bossa (6 May 2019) ICC-02/05-01/09-397-Anx1 at para 419: “a principle which gives preference to that interpretation of a treaty which best promotes its major purposes”, quoting Myers McDougal and Richard Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 261.

43 Request, para 114. 44 Ibid.
45 Shany, op cit, 337.

ICC-01/18-77 16-03-2020 11/29 NM PT

No. ICC-01/18 11/29 16 March 2020

It would therefore appear that, in any event, a negative determination by the PTC at this stage would be manifestly incompatible with the object and purpose of the Rome Statute and the inclusive goals of the Court. As such, attempting to deviate from the functionalist approach, outlined above and adopted by CERD, and to apply the so-called “Montevideo criteria”, would seem an ultra vires act by the Court, as well as being an overly rigid and ill-advised step inconsistent with “the basic philosophy” of the Court which “might result in an increase in the impunity gap.”46

III. The Issue of Territorial Jurisdiction

The issue of statehood so resolved, the amicus observations now turn to the territorial scope of a potential future investigation.47 It is submitted that the same principles and rules of interpretation that guide the Chamber in its determination on the issue of Palestinian statehood should also apply here. With due regard for the “General Rule”, the principle of effectiveness, and due regard for internationally recognised norms of human rights, particularly the collective right of self-determination, it is clear that to provide a meaningful method with which to end impunity for international crimes, the scope of a future investigation by the Prosecutor should encompass the entirety of the occupied Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip. Moreover, as noted by the Prosecutor, it is appropriate to stress that a determination as to jurisdictional scope here should not be conflated with a delineation of the Palestinian territorial claim as such.48
While an extended analysis of the events leading to the beginning of the occupation of the occupied Palestinian territory in 1967 does not require reiterating here,49 and will

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

49 For helpful narration, see Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44(1) Harvard International Law Journal 69-85; for events prior to 1948, see also Victor

ICC-01/18-77 16-03-2020 12/29 NM PT

No. ICC-01/18 12/29 16 March 2020

doubtlessly be provided in detail by other amici, it is useful at this stage to recall the status of the occupied Palestinian territory as occupied since 1967, as it represents the current Palestinian State’s territorial claim.50 This claim has been bolstered51 by the territorial nature of the Palestinian right to self-determination, including permanent sovereignty over natural wealth and resources, as repeatedly recognised by, inter alia, the UN General Assembly,52 the Human Rights Council,53 and the ICJ.54 Accordingly, just as the Chamber is bound to consider this right in its interpretation on the issue of statehood, it should be considered during its analysis as to the extent of its jurisdiction.

Moreover, the legal importance of the maintenance of the character of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, as a single territorial unit, has been repeatedly recognised by the international community, including by the UN Security Council,55 and General Assembly.56 It is further

Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891- 1949 (Pluto Press, 2009).

50 See ICJ, Written Statement Submitted by Palestine (30 January 2004) para 547; State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 Mary 2018), fn 4.

51 On this see Request, para 194, fn. 612, quoting Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol. 1, Peace: Parts 2 to 4 (Longman, 1996) para 274: “[i]t is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. State and territory are, in the traditional law, complementary terms. Normally only a state can possess a territory, yet that possession of a territory is the essence of the definition of state. The infusion of the concept of the rights of a ‘people’ into this legal scheme is therefore a change which is more fundamental than at first appears”; see also Crawford op cit, para 29: “In light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. As such, Israel does not acquire a legal right to or interest in land in the West Bank purely on the basis of its status as an occupier.”

52 See, inter alia, UN General Assembly Resolutions: 2649 (XXV) (30 November 1970) para 5; 67/19 (4 December 2012) UN Doc A/RES/67/19, para 1,4; 70/15 (4 December 2015) UN Doc A/RES/70/15, para 21(b); 71/23 (15 December 2016) UN Doc A/RES/71/23, para 22(b); 72/14 (7 December 2017) UN Doc A/RES/72/14, para 24(b); 793/96 (18 December 2018), preamble; 73/19 (5 December 2018) UN Doc A/RES/73/19, para 22(b); 73/255 (15 January 2019) UN Doc A/RES/73/255 para 1; 73/158 (9 January 2019) UN Doc A/RES/73/158.

53 Most recently, UN Human Rights Council Resolution 40/24 (17 April 2019) UN Doc A/HRC/RES/40/24. 54 Wall Opinion, para 122.

55 The Security Council declared any attempts to alter the “physical character, demographic composition, institutional structure, or status” of the oPt as being of “no legal validity” and “a flagrant violation of the Fourth Geneva Convention … and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace”, UN Security Council Resolution 465 (1 March 1980) UN Doc S/RES/465, para 5; see also Resolution 2334 (23 December 2016) UN Doc S/RES/2334, para 3.

56 UN General Assembly Resolutions: 70/15 (4 December 2015) UN Doc A/RES/70/15, para 11; 71/23 (15 December 2016) UN Doc A/RES/71/23 para 12; 72/14 (7 December 2017) UN Doc A/RES/72/14 para 13; 73/19 (5 December 2018) UN Doc A/RES/73/19 para 13; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8.

ICC-01/18-77 16-03-2020 13/29 NM PT

No. ICC-01/18 13/29 16 March 2020

necessary to clarify that Palestine’s claim to its territory, or indeed that of any State, is not contingent on having “defined and settled boundaries”57 or the exclusive authority to exercise jurisdiction, of any kind, therein.

Nonetheless, due to the idiosyncratic legal complexities imposed by Israel upon each of the three geographic domains of the occupied Palestinian territory (the West Bank, including East Jerusalem, and the Gaza Strip), as part of the former’s campaign of strategic fragmentation imposed upon the Palestinian people as a whole,58 it is worth considering each territorial domain so as to clarify their specific relationship to the overall territorial claims of the State of Palestine, and as such to the scope of the Court’s jurisdiction.
West Bank
As noted above, the West Bank has been under belligerent Israeli military occupation since the 1967 War,59 which triggered the applicability of the Fourth Geneva Convention60 and Hague Regulations61 throughout the occupied Palestinian territory. Later, in 1993, a process began whereby the Palestine Liberation Organisation (PLO) and the State of Israel produced what became known as the Oslo Accords, which divided the West Bank into Areas A, B, and C.62 For the purposes of this analysis, it should be noted that a core aspect of these

57 Shaw, quoted in Request, fn. 608.

58 On this, see throughout UN ESCWA, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue No. 1, (2017) UN Doc E/ESCWA/ECRI/2017/1; see also, Al-Haq, et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports (10 November 2019), available at: http://www.alhaq.org/cached_uploads/download/2019/11/12/joint-parallel-report-to-cerd-on-israel-s-17th-19th- periodic-reports-10-november-2019-final-1573563352.pdf.

59 Wall Opinion, para 73, 101.
60 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,

entry into force 21 October 1950) 75 UNTS 287 (henceforth the “Fourth Geneva Convention”).

61 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land) (adopted 18 October 1907, entry into force 26 January 1910) (henceforth the “Hague Regulations”).

62 See Request, para 68.
No. ICC-01/18 14/29 16 March 2020

ICC-01/18-77 16-03-2020 14/29 NM PT

agreements is the exclusion of all Israelis in the occupied Palestinian territory from

Palestinian criminal jurisdiction.63

A key component of the occupation’s machinery has been the construction and maintenance

of illegal Israeli settlements in the West Bank, including East Jerusalem.64 These settlements have largely been constructed on appropriated Palestinian land, which is typically seized under the pretext of “military necessity”, or through its designation, by the Israeli occupying authorities, as “State” or abandoned land65, and are predominantly located in Area C, which the Oslo Accords identify as being subject to Israeli jurisdictional control.

It is submitted, in line with the analysis put forward by the Prosecutor, that the Oslo process, constitutive of “Oslo I” and “Oslo II”, does not create a legal barrier or challenge to the territorial jurisdiction of the State of Palestine, and therefore the Court.66 First, the Oslo Accords constitute a “special agreement” for the purposes of the Fourth Geneva Convention, and as such cannot deprive the Palestinian people of their inalienable rights and protections under international law and the Fourth Geneva Convention.67 Accordingly, the fact that the PLO has entered into such agreements with the State of Israel may not be interpreted as having relinquished the right of self-determination and permanent sovereignty over natural resources inherent to the Palestinian people, nor can it be interpreted as constituting a renunciation of any other rights conferred upon the protected population.

63 Ibid., para 70.

64 For a timeline of the Israeli settler enterprise, see UN Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East-Jerusalem (7 February 2013) UN Doc A/HRC/22/63, para 24-30.

65 Ibid., 20.
66 See Request, para 183.

67 Articles 7, Fourth Geneva Convention; Request, para 186; see also Basheer AlZoughbi, ‘The Operation of the Oslo Treaties and the Pacific Mechanisms of Conflict Resolution under Public International Law’ (2013) 45(2) Peace Research 39-40: “The transfer of power that was introduced in the aftermath of the Oslo Accords as a result of the agreements concluded between the PLO and Israel changed neither the status of the Occupied Palestinian Territory nor that of protected persons who were being deprived of the benefits of the 1949 Fourth Geneva Convention on a continuous basis … Thus, according to the Fourth Geneva Convention, Israel has legal obligations to honour the rights and ensure the welfare of those under occupation.”

ICC-01/18-77 16-03-2020 15/29 NM PT

No. ICC-01/18 15/29 16 March 2020

Moreover, as also recognised by the Prosecutor, the provisions of Oslo II regarding the regulation of the jurisdiction of the Palestinian National Authority (PNA) relates solely to enforcement, as opposed to prescriptive jurisdiction, i.e. the ability to enforce, as opposed to create, law.68 Stahn, referenced extensively by the Prosecutor,69 draws this distinction most clearly: noting the separation of jurisdiction into these two categories, he contends that “[a]ny other conception would have detrimental consequences for international law. It would imply that a state that is unable to exercise jurisdiction over specific parts of its territory would lose its ability to investigate or prosecute offenders or to seize an international jurisdiction with the power to try offenders. This would create significant accountability gaps” (emphasis added).70 Crucially, the ability to confer jurisdiction on the Court is a matter of prescriptive jurisdiction.71

20.Stahn further observes that “[b]ilateral immunity agreements that award exclusive jurisdiction over specific categories of persons to another state do not extinguish the general capacity of the contracting state to allocate jurisdiction to another entity. If anything, such agreements demonstrate the inherent or pre-existing competence of the State to exercise such jurisdiction.”72 As such, the inability of the PNA to punish, prosecute, or otherwise enforce its laws against Israelis does not preclude the Court from investigating, charging,

68 Request, para 184; see also Ambos op cit: “Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction”.

69 See, in particular, Request, fn. 581-582.

70 Carsten Stahn, ‘Response: The ICC: Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Neo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) 49(2) Vanderbilt Journal of Transnational Law 450.

71 Ambos op cit: “… pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.”

72 Stahn op cit, 451, also 451-452: “If a state has conferred jurisdiction to the ICC, despite a previous bilateral treaty arrangement limiting domestic jurisdiction, the resolution of conflicting obligations becomes an issue of complementarity and cooperation. The ICC is not bound by the agreement of the State Party. It does therefore not have to apply the rule lex specialis derrogat lex generalis. It will instead have to assess whether there are any domestic investigations or not. In case of inaction, the ICC is generally competent to proceed with its own investigations and prosecution.”

ICC-01/18-77 16-03-2020 16/29 NM PT

No. ICC-01/18 16/29 16 March 2020

or prosecuting such individuals for international crimes committed within the occupied

Palestinian territory, including in Area C in the occupied West Bank.

Alternatively, Al-Haq, a Palestinian human rights organisation, outlines the argument73 that grave breaches of international humanitarian law, such as the construction and maintenance of Israeli settlements, which have been recognised by the ICJ as amounting to violations of jus cogens norms giving rise to obligations erga omnes,74 create obligations on all States to take positive action to try or extradite those suspected of grave breaches of the Geneva Conventions.75 This obligation, it is argued, has been recognised as binding the PNA, without prejudice to the existence, or supposed non-existence, of a State of Palestine. As such, the purported inability of the PNA to fulfil this duty as a result of a strict interpretation of Oslo II, whether through the Court or otherwise, would amount to undermining recognised principles of international law; “[b]y this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international

humanitarian law, is on a par with proper states.”76

Regardless of which approach the Court finds most compelling, Kearney is doubtless

correct in stressing that similar restrictions imposed by the Oslo Accords, such as the capacity to engage in international relations,77 are not reflected in State practice, by either third States or Palestine itself, nor is it conducive to the experience of international organisations and human rights bodies.78 The UN Commission of Inquiry addressing the 2018 protests in the occupied Palestinian territory (Commission of Inquiry) affirmatively

73 Originating in Al-Haq, Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (14 December 2009).

74 Wall Opinion, 88, 156.

75 See Article 146(2), Fourth Geneva Convention.

76 See Kearney op cit, 34-35.

77 See Request, para 71.

78 Kearney op cit: “It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people”.

ICC-01/18-77 16-03-2020 17/29 NM PT

No. ICC-01/18 17/29 16 March 2020

found that the PNA has obligations, under both international human rights and humanitarian law,79 applicable to “the entire OPT” (emphasis added),80 without distinction as to the Areas delineated in the Oslo Accords. This is further corroborated by, inter alia, CEDAW81, CERD82, and the CRC.83 As such, the Oslo Accords should not be deemed to be a barrier to the full exertion of the Court’s jurisdiction over the occupied West Bank as a whole.

Finally, it has been argued that the Court’s jurisdiction may not be extended to, or would be of questionable authority, with respect to illegal Israeli settlements in the occupied West Bank.84 It is respectfully submitted that this argument represents the perfect opportunity to illustrate why Article 21(3) should be applied in interpreting the Court’s jurisdiction in Palestine. The construction and maintenance of illegal Israeli settlements in the West Bank, as well as East Jerusalem, has been well established to be in violation of internationally recognised principles of human rights law,85 including jus cogens norms, which give rise to obligations erga omnes. Accordingly, interpreting the Court’s, and indirectly the Prosecutor’s, jurisdiction as limited due to the presence of the settlements would be fundamentally incompatible with the Chamber’s obligation to interpret the relevant law in light of principles of human rights.
East Jerusalem

79 UN Human Rights Council, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (25 February 2019) UN Doc A/HRC/40/74, para 708 (henceforth “Commission of Inquiry Report”).

80 Ibid., para 759.
81 CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1, PARA

82 CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2, para 3.

83 CRC, Concluding Observations: State of Palestine (13 February 2020) UN Doc CRC/C/PSE/CO/1, para 4.

84 For this argument, see Stephen Kay and Joshua Kern, ‘The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction’ (5 July 2019) Opinio Juris, available at: https://opiniojuris.org/2019/07/05/the- statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/.

85 See throughout, Human Rights Council op cit (7 February 2013); see also Committee for Economic, Social and Cultural Rights, Concluding Observations: Israel (12 November 2019) UN Doc E/C.12/ISR/CO/4, para 11, 16, 46.

ICC-01/18-77 16-03-2020 18/29 NM PT

No. ICC-01/18 18/29 16 March 2020

East Jerusalem, or those portions of the city which lie beyond the Green Line, has been repeatedly affirmed and reaffirmed to be a part of the occupied Palestinian territory in countless UN General Assembly,86 Security Council,87 and Human Rights Council88 resolutions, as well as in the Wall Opinion issued by the ICJ.89 Moreover, actions which “purport to have altered the character, status or demographic composition of the Holy City of Jerusalem” have been deemed by the international community to “have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council”.90 While many proposals relating to the status of Jerusalem have been suggested,91 including the so-called corpus separatum proposed in the UN partition plan92, the territorial claim of Palestine to Jerusalem has never been refuted; tellingly, the importance of determining this issue with respect to the right of the Palestinian people to self-determination, including permanent sovereignty, was reiterated on the occasion of Israel’s induction into the UN.93
While it is respectfully submitted that this should be sufficient to satisfy the Court as to its jurisdiction over East Jerusalem, given the importance of the city, both spiritually and as an

86 See, inter alia, UN General Assembly Resolutions: 36/120(D) (10 December 1981), para 5; 36/120(F) (10 December 1981), para 2; 72/15 (7 December 2017) UN Doc A/RES/72/15, preamble; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8, 12.

87 UN Security Council Resolutions: 465 (1 March 1980) UN Doc S/RES/465, para 5; 476 (30 June 1980) UN Doc S/RES/476, para 1; 478 (20 August 1980) UN Doc S/RES/478, para 3.

88 Most recently in UN Human Rights Council Resolution 40/23 (22 March 2019) UN Doc A/RES/40/23, para 15.

89 See, Wall Opinion para 119: “… the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem)”, also para 120: “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

90 UN General Assembly Resolution ES-10/19 (22 December 2017) UN Doc A/RES/ES-10/19, para 1, see also UN Security Council Resolutions: 252 (21 May 1968) UN Doc S/RES/252, para 2; 267 (3 July 1969) UN Doc S/RES/267, para 4; 298 (25 September 1971) UN Doc S/RES/1971, para 3.

91 See, for example, John V Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’ (1996) 45(3) Catholic University Law Review 781.

92 See Part III, UN General Assembly Resolution 181(II) (29 November 1947) UN Doc A/RES/181(II).
93 UN General Assembly Resolution 273(III) (11 May 1949) UN Doc A/RES/273(III), preamble, “[r]ecalling its

resolutions of 29 November 1947 and 11 December 1948”.

ICC-01/18-77 16-03-2020 19/29 NM PT

No. ICC-01/18 19/29 16 March 2020

integral component of the territory of Palestine, its status as occupied territory94, as well as the gravity of the situation on the ground, this section will provide further analysis as to the sovereignty and right to self-determination of the Palestinian people in the city, and its continuity ever since the British Mandate was established.

During the British Mandate period, which commenced after the fall of the Ottoman Empire as a result of the peace diplomacy at Versailles, Palestine was categorised, under British rule, as a “Class A” mandate, along with others such as Iraq, Syria, and Lebanon. The ICJ declared that “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” as a “sacred trust” that pre-existed the creation of the Mandate system, and “continued to apply to League of Nations mandated territories”.95 Thus, the Palestinian people were recognised as having an inherent right to self-determination, even while under Mandate rule.96 The continuity of this right, which encompassed Jerusalem, the capital of Palestine during the Mandate, remained unbroken, including through the 1948 War. The Jewish Agency declared the establishment of the State of Israel following the seizure of the western part of the city of Jerusalem, and after a protracted campaign of ethnic cleansing directed towards the indigenous Palestinian people,97 the newly-established State of Israel immediately declared Jerusalem to be “Israel-occupied territory.”98 Nonetheless, a few

94 Wall Opinion, para 78.
95 Namibia Opinion, para 52; see also ICJ, International Status of South West Africa (Advisory Opinion) (11 July

1950).

96 On this, see Al-Haq, ‘Al-Haq Briefing Paper – 70 Years On: Palestinians Retain Sovereignty Over East and West Jerusalem’ (2018), available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/images/stories/PDF/Jerusalem_20%20Oct_final.pdf ; see also John Quigley, ‘Sovereignty in Jerusalem’ (1996) 45(3) Catholic University Law Review 778: Palestinians “had a right to sovereignty based on its connection to the territory, and on the principle of self- determination”.

97 See Henry Cattan, Jerusalem (St Martins’ Press, 1981) 48; also, generally, Ilan Pappe, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6; Ilan Pappe, The Ethnic Cleansing of Palestine (One World, 2006).

98 Israel Ministry of Foreign Affairs, 2 Jerusalem Declared Israel-Occupied City- Government Proclamation, available at: https://mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/2%20jerusalem%20declared%20israel- occupied%20city-%20governm.aspx.

ICC-01/18-77 16-03-2020 20/29 NM PT

No. ICC-01/18 20/29 16 March 2020

months later, in February 1949, Israel abolished military rule and instituted its own civil

administration in the city, amounting to de facto annexation.99
27. East Jerusalem was among the Palestinian territories occupied by Israel during the 1967

War. As noted by the UN Secretary-General in 1967, “[t]he Israel authorities … stated … that the municipality of West Jerusalem began operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the agent of the Military Government, but from 29 June municipal processes started to function according to Israel law.”100 The extension of annexation from the western to the eastern part of the city, as well as neighbouring Palestinian villages101, made it clear that “Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before 1967.”102 The annexationist extension of Israeli authority over East Jerusalem and the surrounding area through the shifting and redrawing of municipal boundaries adheres to the so-called “Jerusalem 2020 Master Plan”, designed to achieve “spatial segregation”103 within the city, instituted with the ultimate aim of the strategic fragmentation of the Palestinian people104, and the demographic manipulation of the city, restricting the Palestinian presence to 30 percent of the population.105

99 Israel Ministry of Foreign Affairs, 4 Jerusalem-s Military Government Abolished- Government Proclamation, available at: http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/4%20Jerusalem- s%20Military%20Government%20Abolished-%20Gover.aspx.

100 UN Security Council, Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating to Jerusalem (12 September 1967) UN Doc S/8146, para 28.

101 See B’Tselem, East Jerusalem (11 November 2017, last updated 27 January 2019), available at: https://www.btselem.org/jerusalem.

102 Ibid., para 33.

103 Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004), section 7: “… spatial segregation of the various populations groups in the city is a real advantage … It is appropriate, therefore, to direct a planning policy that encourages the continuation of spatial segregation with a substantial amount of tolerance and consideration”, available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/en/wp- content/uploads/2018/03/LocalOutlinePlanJerusalem2000.pdf.

104 See UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk (13 January 2014) UN Doc A/HRC/25/67, para 23.

105 Jerusalem Municipality, op cit, section 7: “Demographic Balance ‘According to Governmental Decisions’ – This goal, as presented by the municipality and adopted in governmental discussions regarding the matter, seeks to maintain a ratio of 70% Jews and 30% Arabs.”

ICC-01/18-77 16-03-2020 21/29 NM PT

No. ICC-01/18 21/29 16 March 2020

The annexation of East Jerusalem, made effective in 1967, was formalised in Israeli law in 1980 with the passing of the “Basic Law: Jerusalem, Capital of Israel,” of constitutional status, envisaging “Jerusalem, complete and united [as] the capital of Israel.”106 This formalisation was condemned as “null and void” by the UN Security Council.107 The culmination of Israel’s annexationist policies to alter the demographic character of the city occurred with the erection of the Annexation Wall, which cemented Israel’s acquisition,108 and illegal annexation,109 of Jerusalem by military force and the coercive displacement of the indigenous Palestinian population, in direct contravention of international law110. As the acquisition of territory by force, as extended by occupation or annexation, cannot vest sovereignty in a belligerent or occupier, the actions taken by Israel in 1948, 1967, and 1980 are ineffectual in vesting Israel with sovereignty over Jerusalem, in particular occupied East Jerusalem.
It is pertinent to give consideration to the Palestinian residents of East Jerusalem, who are not treated in accordance with human dignity, but rather as a demographic challenge by the Israeli authorities. While the State of Palestine is unable to confer citizenship upon residents, Israel refuses to extend similar rights upon Palestinian East Jerusalemites, and instead subjects them to a precarious “permanent residency” status, which may be revoked at any time.111 Moreover, such status may be, and often is, revoked punitively, as part of

106 Knesset, Basic Law: Jerusalem, Capital of Israel, translation available at: https://www.knesset.gov.il/laws/special/eng/basic10_eng.htm.

107 UN Security Council Resolution 478 (20 August 1980) UN Doc S/RES/478.

108 Article 2(4), Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI.; see also Wall Opinion, para 1; UN Security Council Resolution 2334 (23 December 2014) UN Doc S/RES/2334, preamble.

109 Article 47, Fourth Geneva Convention.

110 See Wall Opinion, para 122: “…the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council … There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.”

111 This was introduced by Knesset, Entry into Israel Law (5710/1950), available at: https://www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/40-Entry-into- Israel-Law-1952.pdf.

ICC-01/18-77 16-03-2020 22/29 NM PT

No. ICC-01/18 22/29 16 March 2020

unlawful campaigns of collective punishment, under the vague pretext of a “breach of

allegiance” to the State of Israel.112

Israel’s framework of control over East Jerusalem does not, in any way, provide for the

Palestinian pursuit of political, social, and cultural development, nor the vindication of their inalienable rights under international law, and thus is incompatible with their inherent right of self-determination.113 This manifest and prolonged breach of the collective right of Palestinian East Jerusalemites must be used as a basis, in line with Article 21(3) of the Rome Statute, in interpreting the extent of ICC jurisdiction; it is the Israeli authorities who exercise control over the annexed city and are responsible for the ongoing campaign of rights violations and alleged international crimes. Any move to exclude East Jerusalem from Palestinian jurisdiction would improperly contribute to unending Israeli impunity.

Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.

The Gaza Strip
As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

112 See Al-Haq, Punitive Residency Revocation: the Most Recent Tool of Forcible Transfer (17 March 2018), available at: http://www.alhaq.org/advocacy/6257.html.

113 Reference re: Secession of Quebec [1998] 2 R.C.S, at para 126.

114 See The Israeli-Palestinian Interim Agreement (Oslo II) (28 September 1995), available at: http://www.acpr.org.il/publications/books/44-Zero-isr-pal-interim-agreement.pdf, Article XI(1): “The two sides view the West Bank and the Gaza Strip as a single territorial unit”, and Article XVII(1): “In accordance with the DOP, the jurisdiction will cover West Bank and Gaza Strip territory as a single territorial unit …”; see also UN Security Council Resolution 1860 (8 January 2009) UN Doc S/RES/1860, preamble: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state”.

ICC-01/18-77 16-03-2020 23/29 NM PT

No. ICC-01/18 23/29 16 March 2020

claim, nor has it suspended obligations under international law to uphold the human rights

of Palestinians in Gaza.
33. The lack of control directly enjoyed by the PNA in Gaza has been well documented by the

Prosecutor,115 and while Israel argues that Gaza is no longer occupied, or has attained a sui generis status,116 the prevailing expert and UN view is that the territory remains occupied by Israel, despite the so-called removal of its illegal settlements from the Strip in 2005.117 As noted by Professor John Dugard in 2007, during his tenure as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, “[s]tatements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate … In effect, following Israel’s withdrawal, Gaza became a sealed off, imprisoned and occupied territory.”118 Thus, the ability of the PNA to control Gaza is hampered in part by the ongoing closure and measures of collective punishment imposed by Israel with the ultimate goal of rendering Gaza uninhabitable119; as noted by Darcy and Reynolds, “[w]hile events in Gaza have departed from traditional conceptions of warfare and occupation … sufficient clarity is retained when it comes to the effective control exercised by Israel over the Gaza Strip in order to categorize the territory as occupied.”120 As such, it is incorrect to view Gaza as unoccupied territory; the so-called ‘disengagement’ by Israeli forces in 2005 facilitated a new means of Israel’s domination and control,

115 See Request, para 80.
116 See, for example, Elizabeth Samson, ‘Is Gaza Occupied?: Redefining the Status of Gaza under International

Law’ (2010) 25(5) American University Law Review 915.

117 George E Bisharat et al, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38(1) Denver Journal of International Law & Policy 47-51; Shane Darcy and John Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15(2) Journal of Conflict & Security Law 223-242; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2009) 851-862.

118 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (29 January 2007) UN Doc A/HRC/4/17, para 6.

119 See UN, Gaza “Unliveable”, UN Special Rapporteur for the Situation of Human Rights in the OPT Tells Third Committee (24 October 2018), available at: https://www.un.org/unispal/document/gaza-unliveable-un- special-rapporteur-for-the-situation-of-human-rights-in-the-opt-tells-third-committee-press-release-excerpts/.

120 Darcy and Reynolds, op cit, 243.
No. ICC-01/18 24/29 16 March 2020

ICC-01/18-77 16-03-2020 24/29 NM PT

effectively amounting to a “reployment” of military capabilities exercising control of land

borders, airspace, and naval frontiers.121
34. It must be stressed that the partial control, hampered by continued Israeli occupation,

exercised by Hamas within Gaza does not produce a sui generis, quasi-state status; Hamas itself views Gaza as integral to Palestine,122 and rejects any suggestion that its administrative role in Gaza compromises Palestinian territorial integrity. Moreover, regardless of de facto control by Hamas, the PLO has been treated as the “sole legitimate representatives” of the Palestinian people by the League of Arab States,123 Israel,124 the UN General Assembly,125 and a United States federal appeals court.126 This may be observed in practice through the accepted claim by the PNA, controlled by the PLO, over Gaza’s territorial waters, in line with the Convention on the Law of the Sea127, asserting sovereignty over the “territorial sea, its airspace, and its bed and subsoil”.128 Thus, the link between the sovereign claim by the State of Palestine in the West Bank, including East Jerusalem, is fundamentally linked and congruent to that of the Gaza Strip.

121 Bisharat, op cit, 49.
122 See Hamas, Hamas warns against holding Palestinian elections separately (23 October 2019), available at:

https://hamas.ps/en/post/2382/hamas-warns-against-holding-palestinian-elections-separately.

123 League of Arab States, PLO sole legitimate representative of the Palestinian people – LAS Rabat Summit (28 October 1974), available on UN website at: https://www.un.org/unispal/document/auto-insert-194621/; see also Issa Al-Shuaibi, ‘The Development of Palestinian Entity-Consciousness: Part III’ (1980) 9(3) Journal of Palestine Studies 100.

124 Israel Ministry of Foreign Affairs, Israel-PLO Recognition: Exchange of Letters between PM Rabin and Chairman Arafat, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel- plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx.

125 The Assembly altered the designation of “Palestine Liberation Organization” given to the PLO to simply “Palestine”, thereby essentially conflating the two, see UN General Assembly Resolution 43/177 (15 December 1988) UN Doc A/RES.43/177, para 3; note, however, that this does not indicate that the PLO has become synonymous with Palestine as such, but rather is its internationally recognised conduit, see Azarov and Meloni op cit.

126 Universal Cable Productions LLC v Atlantic Speciality Insurance Company (12 July 2019) 9th Circuit, at 29: “Here, the Palestinian Authority is the de jure government”, available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/17-56672.pdf.

127 Convention on the Law of the Sea (adopted 10 December 1982, entry into force 16 November 1994).

128 State of Palestine Ministry of Foreign Affairs and Expatriates, Declaration of the State of Palestine regarding its maritime boundaries in accordance with the United Nations Convention on Law of the Sea, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PSE_Deposit_09-2019.pdf.

ICC-01/18-77 16-03-2020 25/29 NM PT

No. ICC-01/18 25/29 16 March 2020

The PNA’s de jure jurisdictional claim over the Gaza Strip is further strengthened by the direct applicability of international human rights treaties acceded to by the State of Palestine therein. This has been affirmed by the Commission of Inquiry,129 and was seemingly taken as self-evident by CERD in its December 2019 jurisdictional decision.130 This has been further confirmed by other bodies such as CEDAW131 and CRC132. Indeed, the Commission of Inquiry “consider[ed] Hamas to be obligated to respect, protect and fulfil human rights” based on the accessions to various treaties by the State of Palestine,133 indicating that Hamas, as the de facto authorities in Gaza, are bound by obligations of the State of Palestine. Thus, there does not appear to be any general bar to the imposition of international statutory obligations upon either the Gaza Strip, or Hamas; instead, the State of Palestine is demonstrably capable of imposing such obligations.
Moreover, within the specific framework of the Rome Statute, there does not appear to be any prohibition on the extension of the Court’s jurisdiction to the Gaza Strip, despite de facto control by Hamas. In the context of the occupied Georgian territory, referred to as South Ossetia, the PTC ruled that regardless of the lack of effective control by Georgia over that territory, “South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State.”134 In light of this decision, in a context wherein a separate State, although its legitimacy is questionable, had been declared, it would be inconsistent for the Court to deny the applicability of its jurisdictional reach due to the lack of de facto control over Gaza by the State of Palestine. Gaza is not the subject of an adverse separatist

129 See Commission of Inquiry Report, para 759, 768. 130 See throughout, CERD Decision.
131 CEDAW, op cit, para 9.
132 CRC, op cit, para 4.

133 Commission of Inquiry Report, para 759.

134 ICC, Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation (27 January 2016) ICC-01/15, para 6.

ICC-01/18-77 16-03-2020 26/29 NM PT

No. ICC-01/18 26/29 16 March 2020

claim, but rather functions and has been recognised as an integral component of the

occupied Palestinian territory.
37. Similarly, as the Court has previously made implicit designations on the competing claims

to legitimacy of opposing authorities,135 it is respectfully submitted that the Court should be satisfied with the State of Palestine’s internationally recognised de jure status as the competent authority over the entirety of the occupied Palestinian territory, and should not be deterred by its lack of de facto control. The Court’s sole consideration vis-à-vis the competency of Palestinian authorities to submit jurisdiction to the Court begins and ends with positions “clearly designated by the [de jure] State.”136 The implications of an alternative ruling would be a consolidation of the fragmentation of the Palestinian people; should the Gaza Strip be excluded from the remit of the Prosecutor’s investigation, the Court would further entrench the arbitrary fragmentation, imposed by Israel’s occupation machinery137, facilitating the creation and maintenance of a regime of impunity shielding accountability for the commission of international crimes.

Conclusion
Should the Court deem it necessary to make a jurisdictional ruling, under the auspices of Article 19(3), at this stage, it is respectfully submitted that it should rule that the entirety of the occupied Palestinian territory constitutes the legitimate territory of the State of Palestine, and is subject to the Court’s jurisdiction. While I am mindful of the importance and sensitivity of the issues presently before the Court to the objections of a sovereign State, however in this instance it has become abundantly clear that the broader legal considerations of extending legal accountability for international crimes should be given priority.

135 See ICC, Situation in Libya in the Case of the Prosecutor v Said Al-Islam Gaddafi: Decision on the Prosecutor’s “Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami AL-ATIRI, Commander of the Abu0Bakr Al Siddiq Battalion in Zintan, Libya” (21 November 2016) ICC-01/11-1/11, para 15.

136 Ibid., para 16.
137 See Richard Falk, ‘Israel’s Politics of Fragmentation’ (10 October 2010) Global Justice in the 21st Century,

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
No. ICC-01/18 27/29 16 March 2020

ICC-01/18-77 16-03-2020 27/29 NM PT

Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

138 John Quigley, Situation in the State of Palestine: Submissions Pursuant to Rule 103 (John Quigley) (3 March 2020) ICC-01/18, para 59.

ICC-01/18-77 16-03-2020 28/29 NM PT

No. ICC-01/18 28/29 16 March 2020

context of the Rome Statute, and has the authority and competence to provide the Court with jurisdiction over the entirety of its territory, defined as the West Bank, including East Jerusalem, and the Gaza Strip, in line with the provisions of Article 12(3).

Professor Richard Falk

Dated this 16th day of March, 2020 At Istanbul, Turkey

ICC-01/18-77 16-03-2020 29/29 NM PT

No. ICC-01/18 29/29 16 March 2020

Tags: Bensouda, Criminal Allegations, Global Rule of Law, ICC, Israel

Comments 45 Comments
Categories Commentary, Crimes of State, Fatou Bennssouda, International & Global Law, Reflections

First Reactions to the Farce of the Century

28 Jan

Rodrigo Craviero Supplemental Interview Questions

Q: What kind of comments would you add?

The release of Trump’s plan seems to have generated far less interest and enthusiasm, except on Netanyahu’s, and likely majority opinion in Israel, than I expected. It may be too soon to be confident that this first impression will turn out to be accurate. What seems clear from the timing and mode of release is that the Trump/Kushner plan is intended to help Netanyahu prevail in the upcoming Israeli elections, and will also be useful to Trump with respect to Evangelical and hard-core Jewish support in the presidential election in November. There is some reason to believe, whether knowingly or not, the plan, and the pre-release one sidedness was designed to ensure a Palestinian rejection, allowing Israel to embrace the plan and claim to seek peace, as well as go forward with unilateral moves such as annexing the Jordan Valley.

Q: How do you see also fact return of Palestinian refugees will be impossible, as Netanyahu told, and Jerusalem will continue indivisible?

The failure to address the issue of Palestinian refugees in a responsible manner is both a deficiency in the proposal, and a tragic humanitarian evasion. Palestinian refugee population, estimated at over five million, have long languished in a variety of refugee camps, without rights or decent life conditions. There can be no peace as long as this situation persists.

Tags: Deal of the Century, grievances, Israel, Netanyahu, Palestinian. refugees

Comments 3 Comments
Categories Commentary, Israel/Palestine, Reflections

In Praise of Kamila Shamsie Home Fire

13 Oct

In Praise of Kamila Shamsie’s Home Fire

It took the withdrawal of the Nelly Sachs Prize to make me familiar with the fine literary achievements and compassionate politics of Kamila Shamsie. Selfishly, I cannot thank the Dortmund City Council enough for its outrageous behavior, evidently canceling the award because a right-wing newspaper outed Shamsie as a supporter of the BDS Campaign. I can imagine Shamsie’s feeling of hurt as well as disappointment as this incident unfolded. In her novels, she has manifested an uncannny awareness, more so than any writer I have encountered, of the precarious existence of ethnic, gender, and civilizational outsiders, especially Muslims, if they happen to reside in the supposedly once more tolerant West. Her words of eloquent response to the Dortmund about face express both her magnetic literary personality and moral intelligence: “It is a matter of great sadness to me that a jury should bow to pressure and withdraw a prize from a writer who is exercising her freedom of conscience and freedom of expression; and it is a matter of outrage that the BDS movement (modelled on the South African boycott) that campaigns against the government of Israel for its acts of discrimination and brutality against Palestinians should be held up as something shameful and unjust.”

Germany seems particularly susceptible these days to Islamophobic tropes, especially those given traction at the expense of Muslims, Palestinians, and immigrants. It seems that even 75 years after the Holocaust the German political establishment is still attempting to convince themselves, as well as the State of Israel, that the Holocaust was a national anomaly. Seeking to prove the unprovable, Germany and Germans have chosen to fall in love with Israel precisely because it is the nation state of the Jewish people, and for this reason alone it can do no wrong as we all know that love is blind. In their vain effort to make such a surreal posture credible, Germany insists on going even further, as if to drive the point home to any doubters, by converting Israel’s critics into Germany’s adversaries, somehow forgetting that the locus of the anti-Semitic gene present in the German body politic is situated on its far right, and is definitely not to be found even among the most uncompromising supporters of the BDS Campaign. To suggest otherwise, as is the inescapable implication of the Dortmund action, is to slander a writer of exquisite moral sensitivity. Her actions as a citizen exhibits a strong bond between her sense of right and wrong that infuses her novels and her nonviolent engagements on the side of justice for the Palestinian people. Bonds of this nature are what keep democracy alive, and should be celebrated now more than ever, not condemned.

Evaluated from a more humanistic perspective, this incident confirms the impression that Germany as a nation has learned nothing from its past. To side with Israel is to side with an apartheid government that imposes a regime of daily victimization upon the Palestinian people (treating them as enemy aliens in what once Palestine!). To regard those who oppose this Israeli behavior as if they are the miscreants is to learn nothing from the rightly repudiated German past. It is to be complicit in its repetition.

Under these circumstances, my expression of personal gratitude to Dortmund may seem odd, yet it is quite easy to explain. If it had not been for the withdrawal of the prize, I would not have become an avid reader of Shamsie. The prize might have caught my wandering eye, as should earlier some of the dazzling reviews of Home Fire, but with a busy life along with an array of self-indulgent distractions, I would almost certainly not have taken such a drastic step as to acquire the novel, and then find myself so overwhelmed by its literary quality and brilliant commentaries on the human condition that I immediately obtained, and then read with uncharacteristic concentration, Burnt Shadows in two ten hour days of uninterrupted reading. Reflecting on this experience, which I wish is being replicated by others shocked into a similar response to mine, I became appreciative that, depending on circumstances, we sometimes become more intellectually and culturally indebted to acts of negation than to those of affirmation. It may be that those favoring the Dortmund jury reversal supposed that withdrawing the prize would have the valued added of lessening interest in Shamsie’s writing, and instead it seems to be spreading the word that she is a great writer!

Perhaps, if writers in Britain had not organized a joint letter of solidarity with Shamies to the London Review of Books, the abstraction of learning about a cancelled prize would not have overcome my habitual sloth, and I would have moved on. I was also drawn to look for myself at the work in question by Shameis’ unrepentant response, defending her BDS support as something she did as a citizen, which in any event should have had no bearing on whether her novel was more deserving of recognition than were the other short listed competitors for the prize. Until this happened, I would have thought the Nelly Sachs Prize honored literature, rather than kneeling at the altar of political correctness. From now on whenever Germany does something similar, I will do my best to make them pay, not only by joining the protest, but by embracing the work that they repudiated. Let these prizes remain noteworthy, but only if future cancellations serve more as magnets than as repellents. My fear is that foundations and selection groups that give such prizes will in the future become more wary, do their homework better, and bypass candidates whose sympathies with the Palestinian struggle might stir the waters of controversy. It is worth realizing that much of the evil in the world is what is done off camera, behind closed doors, and we who wish for other realities, never get wind of what is going on. Self-censorship may be more destructive of freedom of expression than censorship. Dortmond’s rationale for retraction can be discussed, rejected, overcome. If Home Fire had been quietly put aside by the jurors in their deliberations, it would have aroused no protest, enlisted no new circle of admirers, and no positive voices reminding us that BDS is dedicated to nonviolent liberation, nothing more, nothing less.

Yet before touching on the qualities that make me so admiring of Home Fire, I would comment a bit more on what seems like a panic attack. We need to ask what made the folks in Dortmund act so inappropriately as to make themselves appear both craven and foolish? At first glance, it seems that these days right-wing pressure works more often than it should, although ironically, it is the far right that is the incubator of real anti-Semitism. The true face of Jew hatred revealed itself in the very recent Halle incident in which a right-winger aimed to slaughter Jews at a German synagogue on the Yon Kippur holiday. Further, even granting the Zionist feverish campaign to brand BDS as expressive of the so-called ‘new anti-Semitism,’ to treat Shameis’ support of a cultural boycott as enough to induce the city of Dortmund to withdraw the prize seems to signal societal panic, maybe a reaction to the rise of the anti-immigrant, anti-Muslim AfD (Alternative for Germany). It is of more than passing interest that the AfD was not content as were the mainstream German parties in the Bundestag with calling BDS ‘anti-Semitic’ but wanted the non-violent movement formally banned altogether. The resolution adopted in May 2019 by a rare cross-alliance of political parties was itself a lamentable response to pressures being exerted by Zionist groups may have set the stage for the Dortmund retreat. It was followed shortly by a similar action in Aachen where an award was withdrawn from Walid Raad, an Lebanese innovative artist with a world reputation because he reportedly refused to denounce BDS, carrying the imperative of political correctness a menacing step further.

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

Part of the dark charm of Home Fire is a tribute to Shameis’ ‘see it all eyes’ that illuminate the complexities of Islamic jihadism, how it appeals to those ‘out of place’ around the world, wounding and rupturing the flow of life for those burdened and blessed with a hybrid ethnic, religious, and class identity. Shamsie tells us that her narrative inspiration for Home Fire is the Greek play of Antigone where a heartbroken sister defies her uncle, Creon, the king of Thebes, by burying her rebellious brother who died on a field of battle, and thus declared a traitor by Creon; by law he was denied the right of burial and his body left to rot on the battlefield until he was restored to dignity by the defiant Antigone. Sophocles depicted this classic instance of overriding the law of the land by acting in obedience to the transcendent law of the human heart, given concreteness over the centuries by natural law jurisprudence and more recently, by the universal principles of human rights. Shamsei imparts her meaning by choosing a tag line from Sophocles that appears alone on a page preceding the novel: “The ones we love.. are enemies of the state.”

Reading Shamsei made me recall my experience 30 years ago when I read Toni Morrison’s Beloved. The novel made me realize, although growing up in the racially self-righteous, self-segregated liberal confines of Manhattan, that until I read Beloved, I had never grasped the existential horrors of post-slavery racism in the United States, especially throughout the South, and more subtly in the rest of the country. Similarly, until I read Home Fire I never thought empathetically about the intimate lives of terrorists and their loved ones, pitting love within a family against what the state decrees as the limit of acceptable conduct and the moral ambiguities arising from the dreadful harm done to innocent others by terrorist violence, whether by the state or its enemies. The perpetrators are also victims, and the victims can become perpetrators propelled by a vicious retaliatory logic that finds words to justify even beheadings; a jihadist in Home Fire says this: “..what you do to ours we will do to yours..” In other words, when we free ourselves from liberal forms of political indoctrination to experience the radical and reactive otherness that produces delicate negotiations between love and law the simple verities of moral truisms evaporate before our eyes. If we nurture our spiritual selves, a formidable challenge, those brave enough would almost always choose the path cleared by the heart rather than mechanically adhering to the cold logic of those who insist on observing the law however unjust. A signal achievement of Home Fire is to weave a credible tale of such nurturing through the selfless passions of Aneeka, a luminous being, compelled by sibling love to respond to her hapless terrorist twin brother, Pervais. The fact that Aneeka is studying in London to become a lawyer, while Pervais is enchanted by digital mysteries of recorded sounds, somehow heightens the tension between law and love, with a romanticized forgetfulness when it comes to prudence in a public domain of discriminatory vigilance in the world after the 9/11 attacks.

Shameis’ has produced a moral fable for our times. It is given novelistic and societal complexity by the apparent innocence of the twins, Pervais killed by a colleague in the course seeking to come home to Britain because after becoming disillusioned by his exposure to ISIS, and Aneeka herself defying a vindictive British law denying any right of return even to British citizens if officially declared to be terrorist suspects. With deep symbolic resonance, the corpse of Pervais was sent to his ‘ethnic home,’ Pakistan, where Aneeka traveled to perform her own version of a sacred burial ritual. We are told in a sprightly Note of Acknowledgement at the very end of the book, in case it did not earlier cross our minds, that Shameis’s work was foreshadowed by the exploration of these themes in Sophocles’ most memorable play, Antigone. Even though I studied Greek theater literature as a student some decades ago, I admit that I never on my own drew the connections between Home Fire and Antigone, and when instructed, I found it worth knowing, but quite irrelevant to my intense enjoyment of this extraordinary novel. The idea of loyalty to love by performing a proper burial may retain a certain symbolic relevance in our world, but it is less inscribed in the modern sensibility than it was in ancient times when such ritual matters were regarded as concerns of ultimate significance, although Shameis brings it to life because the characters and plot are so emotionally enveloping.

I found Shameis’s electric feel for language, including the radiance of the conversational dialogue and the creation of vivid and sympathetic characters interacting in the course of an ingenious plot that addressed several distinctive themes of this particular historical moment are some of the elements that make this novel so exciting as a de-Orientalizing work of fictive art. By reading Home Fire we learn what is excluded from reading newspapers or listening to politicians. Shameis has a special talent for conveying the wonderfully non-conformist dimensions of human lives struggling for meaning and love in our chaotic, confused, and violent world. Even the older sensible sister of the twins, Isma, burdened with parenting them from their childhood, gives principled prudence its due, and yet the book opens ironically with Isma’s own interrogation ordeal at Heathrow as she departs Britain to earn a graduate degree at an American university. Her extremely unpleasant exit experience results from nothing more incriminating than her racial and religious identity, and more plausibly, by her being marked for special attention at immigration portals due to their awareness that her abandoning father died an al Qaeda militant en route to Guantanamo.

This novel was for me an experience of adult education at its best as well as an absorbing artistic reading pleasure. What we learn, above all, is that judging and assessing others from their outside appearances and external criteria produces false impressions that often lead to tragic outcomes. We also learn that grief, forgiveness, and empathy are among the most powerful private emotions that contrast favorably with the cruel opportunism of those who hitch their wagon to the conventional wisdom of state power as intrusively enacted in ways that disrupt the lives of gentle people.

Dortmund was quite right to select Home Fire for a literary award, which also informs us deeply about the vulnerability and fragile live of those at the Muslim edge of Western societies, especially if they are unwilling or unable to compromise beliefs and identity. Kamila Shamsie teaches us by her artistry to understand better the worlds we so unknowingly inhabit. We should also pause long enough to notice her way of living, feeling, and acting as if humanity was her true native country.

Tags: AfD, anti-Semitism, BDS Campaign, Budestag BDS, Dortmund Germany, Halle, HOME FIRE, Israel, Kamila Shameis, Neely Sachs Award

Comments 7 Comments
Categories Commentary, Dortmund, HOME FIRE, Kamila Shameis, Nelly Sachs Prize, Reflections

Why the United Nations Matters (even for the Palestinians)

18 Jan

There are many reasons for persons with very different worldviews to feel disillusioned by, if not angry at, the United Nations. These negative feelings arise usually because the UN stands idly by the sidelines while terrible national and human tragedies unfold as the world media visually narrates horrific events in real time. At other times the hostile feelings toward the UN arise because the Organization is seen as a plaything of geopolitics, as bowing to crude leverage wielded by major funding governments, and in the process violating the letter and spirit of the UN Charter. Such behavior undermines the UN’s constitutional foundations and casts doubt on the central claim that the Organization is dedicated to the cause of war prevention.

No people have more reason to be disappointed with the UN, international law, and the precepts of international morality than do the people of Palestine. From the moment the UN was established up until the present moment, the Palestinians have been victimized either by the use of the UN to pursue geopolitical goals or by the inability of the UN to implement its own decisions and assessments that are responsive to Palestinian grievances or supportive of Palestinian aspirations.

Obviously, there is present a world order puzzle that needs solving. Many believe, especially here in the United States, that it is Israel that is the victim of UN bashing and bias, being singled out at the UN for continuous censure and criticism, and it is the Palestinians that have over the years received aid and comfort in the halls of the UN for their contentions, however inflammatory. For our dualistic Western minds, incapable of reconciling opposites, something must be wrong. It seems impossible for both the Palestinians and Israelis to be both victimized at the UN.

Yet this is precisely the case. The Palestinians are victimized because the UN doesn’t mean what is says, at least not on the plane of action. The UN gives the Palestinians the pabulum of words, while refraining from the reality of deeds, which over time gives rise to resentment and cynicism summarized by the sentiment: ‘what good are words, if nothing happens, and the situation on the ground even deteriorates.

At the same time, partly in reaction to this sense of impotence when it comes to imposing its views effectively on behavior, the UN slaps, sometimes strongly, the defiant Israelis. And the Israelis, never above playing the anti-Semitic card, keep telling the world that they are singled out for bashing even though their wrongs are far less bad than that of others. Of course, never far in the background is the weight of geopolitics, with the United States wielding a punitive stick on Israel’s behalf.

History needs to be taken into account in sifting through the complexities of argument and counter-argument carried on now for decades about the performance of the UN in relation to Palestinians and Israelis. With respect to the geopolitical explanation of Palestinian disillusionment, the UN already in 1946 accepted the responsibility to supersede the United Kingdom, which had been administering Palestine on behalf of the international community since the fall of the Ottoman Empire after World War I., in working out a solution on behalf of the two peoples. Yet instead of consulting the resident population of Palestine on its wishes with respect to the implementation of the right of self-determination, the UN on its own initiative proposed an Orientalizing solution that gave Israel 55% of Palestine despite less than 33% of the population being Jewish. This demographic disparity existed despite several decades of Jewish immigration spurred by energetic Zionist efforts around the world as well as by the British, eager for strategic reasons of their own to carry out the Balfour pledge of 1917. Jewish immigration was also greatly encouraged by the rise of Nazism, which intensified the search for a sanctuary that could protect Jews, especially those fleeing Hitler’s Germany.

Then to compound this imposition of a settler colonialist outcome, repugnant from the outset to the majority Arab population, the UN proceeded in 1948 to accept Israel as a member of the UN without first making obligatory provision to ensure an equitable future for the Palestinian people. This flawed UN response to the end of the British mandate has been compounded by years of Israeli expansionism, especially since 1967. Such an internationally tilted outcome reflected intense liberal guilt toward Jews in the aftermath of the Holocaust combined with the skill and tactics of the Zionist movement in influencing the Jewish diaspora as well as government policy in Europe and North America. It was an early demonstration of geopolitics triumphing over international law and global justice within the UN. It should not be forgotten that the UN was established in ways that gave leading states a geopolitical comfort zone, more familiarly known as ‘the veto,’ a blunt instrument for opting out of responsibilities, and useful to protect friends and batter enemies.

Turning to the impotence of the UN when it comes to its resolutions and decisions that encounter geopolitical resistance, the pattern has been evident all along. After the outcome of the 1967 War, the international community by way of the UN acquiesced with hardly a whimper to the extension of Israeli territorial claims from 55% to 78% of mandate Palestine. Ever since, this enlargement of Israeli territorial expectations has formed the basis for the two-state consensus, and was even accepted by the Palestinians as the realistic territorial baseline for a compromise solution.

Beyond this central issue of territorial allocation, the UN General Assembly affirmed the right of return of Palestinians forced to leave their homes in the 1947-48 War in General Assembly Resolution 194, and a second wave dispossessed in the 1967 War. The resolution has been pointedly rejected by Israel without any adverse consequences.

In similar fashion, the expansion and annexation of Jerusalem has been strongly condemned, most canonically, by the UN Security Council in Resolution 478 (1980), a unanimous vote except for the U.S. abstention. Finally, despite this, and the periodic Security Council denunciations of Israeli settlements on occupied Palestine territory, Israel has continued year upon year to build and increase the settler population. Against this background, it is to be expected that the Palestinians feel that having their rights affirmed at the UN is a worthless exercise, if not a feeble way to obscure UN impotence, given that the Palestinian ordeal has worsened year after year, decade after decade.

And yet despite all this the Jerusalem resolution of last December (passed by a vote of 128-9 with 35 abstentions and 21 absences) repudiating the Trump initiative is significant, partly because symbols are of great, if indirect, importance in international life. Symbolic victories at the UN do on occasion have subtle, yet real, behavioral impacts. The UN for all its weaknesses has long been the primary source for authoritative determinations of the legitimacy and illegitimacy of internationally recognized claims and grievances. This resolution is illustrative, supported by every important country in the world including the closest allies of the United States, with the symbolic and unequivocal rejection of the Trump diplomatic gesture of recognition being clear and consequential.

The Jerusalem resolution seems likely to produce a series of consequences: it greatly weakens, if not terminates, the central role that the United States has played as the only recognized third party mediator between Israelis and Palestinians, thereby creating an opportunity for the EU and individual European states to fill the diplomatic vacuum that seems to have formed; besides this, demonstrations around the world opposing the U.S. recognition initiative are translating support throughout the world for the Palestinian global solidarity movement that is likely to be expressed in several ways, especially by way of a more robust Boycott, Divestment, and Sanctions (BDS) Campaign. And at least for the moment, the Palestinian Authority, and its leadership, has moved away from adopting a quasi-collaborative stance in its relations with Israel, insisting that Trump’s move caused a damaging rupture. In effect, if diplomacy is to go forward in the future, it will have to proceed under new auspices, possibly Europe, maybe even China or the UN. Such radical expectations, while expressing a welcome refusal to be coopted by the Tel Aviv/Washington charade carried on for so long within the Oslo framework, is totally unrealistic in the near term. Israel would much rather be a pariah state than to submit its fate to Chinese or UN diplomacy, or for that matter, any intermediary that would seem fair to the Palestinians rather than partisan as in the past in favor of Israel. For so long Israel has

been coddled by American leaders that it became a hardened expectation with little wiggle room as Barack Obama found out early in his presidency when he dared to take baby steps in search of a middle ground.

It is worth recalling the anti-apartheid campaign against the South African racist regime that achieved prominence in the decades after 1945. The UN played a crucial role by its authoritative condemnation of apartheid as a crime against humanity and by its indirect encouragement of nonviolent resistance to South Africa racism throughout the world. This anti-apartheid experience is an instructive precedent, raising hope for the eventual success of the Palestinian national struggle, although the South African leadership had been far less creative and effective than the Israelis in insulating their governing process from external pressures.

What is analyzed with reference to Palestine and the Jerusalem resolution can be understood as a template for a general appreciation of both what the UN can and cannot do. The UN has this central role to play in either confirming or dismissing symbolic claims associated with the grievances and rights of subjugated peoples in the world. It is for this reason that governments fight so hard to have their policies accepted at the UN, or at least not criticized, censured, or punished, none more so than the government of Israel. Israel’s vicious attacks on the UN should be understood as disclosing the Israeli appreciation that, despite everything, the UN is a crucial site of struggle in the contemporary world order. Its findings of legitimacy and illegitimacy, especially if they resonate with feelings of justice around the world, impact strongly on civil society and often exert a strong influence on international public opinion and media coverage.

At the same time even if there is intense support for a symbolic outcome, it will rarely be self-enforcing, and it will be almost impossible to enforce at all absent a rare supportive geopolitical consensus. For instance, with respect to imposing sanctions on North Korea given its provocative nuclear program and accompanying diplomacy, it has been possible for all 15 members of the Security Council to agree sometimes on a common course of action, although as worried by Trump’s blustering belligerence that increases the danger of a universally unwanted and feared war. The geopolitical divergencies that were present at the UN were temporarily overcome by compromises. In this instance, the shared goal of avoiding a war on the Korean Peninsula encouraged governments to find some common ground.

The role of the UN in the Middle East has been particularly lamentable, First, the legacies of colonialism have left artificial political communities throughout the region. The Middle East also suffered from the geopolitical ambitions of the U.S., including its Cold War containment policy, strategic priorities accorded Gulf oil reserves and the security of Israel, and since the Iranian Revolution of 1979, its resolve to limit the spread of Islamic influence and political extremism. In effect, when the geopolitical stakes are high and associated with the policy priorities of dominant states, then the UN becomes marginalized, playing only trivial roles as in the long international civil wars that have caused such massive suffering in Syria and Yemen.

The conclusion to be reached is to view the UN realistically, affirming its central role with regard to symbols of legitimacy and its relative impotence if geopolitical forces are mobilized against any UN calls for action. Sometimes, arguably, the UN can be too effective, as when geopolitical forces turn a blind eye to issues of sovereignty and justice in a weaker country. This happened when in 2011 the Security Council was hoodwinked into endorsing a NATO regime-changing intervention in Libya undertaken in the name of freedom and democracy, but resulting in chaos, violent strife, and ethnic tensions.

The prospects for a stronger UN presence in international life involve tethering geopolitics by taking steps that now seem politically impractical: abolishing the veto power of the five permanent members of the Security Council, making resolutions of the General Assembly binding if supported by ¾ of UN members, basing UN funding on an independent tax base tied to international civil aviation or transnational financial transactions, and removing the selection of the Secretary General from the filter of P-5 approval. These steps have been long advocated by those seeking a more effective UN, but have been blocked by states that do not want to diminish their international status or their geopolitical leverage.

Until the international system experiences a shock or intense stress, it is hard to imagine such steps being taken. In fact, given Trump’s regressive approach to global policy and thinly disguised hostility to the UN, it is more likely that the UN will be even more constrained in the near future as to what it can do to make the world more peaceful, prosperous, sustainable, and just. The diplomatic rebuff of the U.S. after its irresponsible Jerusalem unilateralism, including the failure of its bullying tactics, has undoubtedly made the Trump presidency realize that the UN will not be a venue in which to push its regressive version of ultra-nationalist militarism.

Despite understandable degrees of disillusionment, people of good will dedicated to UN ideals should not give up on the Organization or its potentiality, but work harder to make the UN come closer to fulfilling its original promise, needed now more than ever. Justice for the Palestinian people, however long deferred, remains the defining moral prism by which to assess the shifting balance between achieving global justice and bowing to the whims of geopolitics at the UN and elsewhere.

Tags: Balfour Declaration, British Mandate, Israel, Palestine, UN, UN & Legitimacy, UN Reform, UN Soft Power

Comments 16 Comments
Categories British Mandate, Commentary, Israel/Palestine, Jerusalem Resolution, Reflections

Charlottesville Through a Glass Darkly

18 Aug

I suggest that Zionists fond of smearing critics of Israel as ‘anti-Semites’ take a sobering look at the VICE news clip of the white nationalist torch march through the campus of the University of Virginia the night before the lethal riot in Charlottesville. In this central regard, anti-Semitism, and its links to Naziism and Fascism, and now to Trumpism, are genuinely menacing, and should encourage rational minds to reconsider any willingness to being manipulated for polemic purposes by ultra Zionists. We can also only wonder about the moral, legal, and political compass of ardent Zionists who so irresponsibly label Israel’s critics and activist opponents as anti-Semites, and thus confuse and bewilder the public as to the true nature of anti-Semitism as racial hatred directed at Jews.

There must be less incendiary ways of fashioning responses to the mounting tide of criticism of Israel’s policies and practices than by deliberately distorting and confusing the nature of anti-Semitism. To charge supporters of BDS, however militant, with anti-Semitism dangerously muddies the waters, trivializing hatred of Jews by deploying ‘anti-Semitism’ as an Israeli tactic and propaganda tool of choice in a context of non-violent expressions of free speech and political advocacy, and thus challenging the rights so elemental that they have long been taken for granted by citizens in every funcitioning constitutional democracy. It is worth recalling that despite the criticisms of BDS during the South African anti-apartheid campaign, militant participants were never, ever smeared, despite being regarded as employing a controversial approach often derided as counterproductive in politically conservative circles.

And of course it is not only Zionists who have eaten of this poisonous fruit. As a result of Israel’s own willingness to encourage such tactics, as in organizing initiatives seeking to discredit, and even criminalize, the nonviolent BDS campaign, several leaders of important Western countries who should know better have swallowed this particular cool aid. A recent statement by the new and otherwise promising President of France, Emmanuel Macron: “Anti-Zionism…is the reinvented form of anti-Semitism,” and implicitly such a statement suggests that to be anti-Zionist is tantamount to criticism of Israel as a Jewish state.

After grasping this tortured reasoning, have a look at the compelling Open Letter to Macron, written in response by the famed Israeli historian, Shlomo Sand, author of an essential book, The Invention of the Jewish People. In his letter Sand explains why he cannot himself be a Zionist given the demographic realities, historical abuse of the majority population of historic Palestine, and the racist and colonialist overtones of proclaiming a Jewish state in a Palestine that a hundred years ago was a national space containing only 60,000 Jews half of whom were actually opposed to the Zionist project. This meant that the Jewish presence in Palestine represented only about 7% of the total population, the other 700,000 being mostly Muslims and Christian Arabs. The alternative to Zionism for an Israel that abandons apartheid is not collapse but a transformed reality based on the real equality of Jews and Palestinians. Shlomo Sand gives the following substance to this non-Zionist political future for Israel: “..an Israeli republic and not a Jewish communalist state.” This is not the only morally, politically, and legally acceptable solution. A variety of humane and just alternatives to the status quo exist that are capable of embodying the overlapping rights of self-determination of these two long embattled peoples.

To avoid the (mis)impression that Charlottesville was most disturbing because of its manifestations of hatred of Jews it is helpful to take a step backward. Charlottesville was assuredly an ugly display of anti-Semitism, but it only secondarily slammed Jews. Its primary hateful resonance was its exhibition of white supremacy, American nativism, and a virtual declaration of war against Black Lives Matter and the African American and immigrant struggle against racial injustice. Jews are doing better than all right in America by almost every indicator of economic, political, and social success. African Americans, Hispanics, and Muslims are not. Many of their lives are daily jeopardized by various forms of state terror, as well as by this surge of violent populism given sly, yet unmistakable, blessings by an enraged and unrepentant White House in the agonized aftermath of Charlottesville. Jews thankfully have no bereaved victims of excess uses of force by American police as have lethally victimized such African Americans as Treyvon Martin, Michael Brown, Freddie Gray, Eric Garner, and Tamir Rice. Jews in America do not fear or face pre-dawn home searches, cruel family disrupting deportations, and the mental anguish of devastating forms of uncertainty that now is the everyday reality for millions of Hispanic citizens and residents.

What Charlottesville now becomes is up to the American people, and to some lesser extent to the reactions and responses throughout the world. The Charlottesville saga has already auditioned Trump and Spence as high profile apprentices of white nationalism. Whether an array of Republican tweets of disgust and disapproval gain any political traction remains to be seen, or as in the past they dissolve as bubbles in the air and soon seem best regarded as empty tropes of political correctness. What counsels skepticism about this current cascade of self-righteous pronouncements is the awareness that many of these same individuals in the past quickly renewed their conniving habits behind closed doors, working overtime to deprive the racially vulnerable in America of affordable health insurance, neighborhood security, and residence rights. As is so often the case in the political domain these days disreputable actions speak far more loudly than pious words.

If the majority of Americans can watch the torch parade and urban riot of white nationalists shouting racist slogans, dressed for combat, and legally carrying assault weapons, in silence we are done for as a nation of decency and promise. If the mainstream does not scream ‘enough’ at the top of its lung it is time to admit ‘game over.’ This undoubtedly means that the political future of this country belongs to the likes of Trump/Spence, and it also means that a national stumble into some kind of fascist reality becomes more and more unavoidable. The prospect of a fascist America can no longer be dismissed as nothing more than a shrill and desperate ploy by the moribund left to gain a bit of attention on the national stage before giving up the ghost of revolutionary progressivism once and for all.

So we must each ask ourselves and each other is this the start of the Second Civil War or just one more bloody walk in the woods?

Tags: African American Victimization, anti-Semitism, Balfour Declaration, Black Lives Matter, Charlottesville, Israel, ultra-Zionism, White Nationalism, White Supremacy, Zionism

Comments 12 Comments
Categories Charlottesville, Commentary, Macron, Reflections, Shlomo Sand

← Older Entries

Search

Global Justice in the 21st Century

Will Saudi Leadership of OPEC Clash with U.S. Strategic Partnership?

The Nuclear Agreement (JCPOA, 2015) Should be Renewed

Will the Iran Nuclear Agreement be Restored?

Palestine is Winning the Legitimacy War

The Geopolitics of the Normalization Agreements

Investigating Israeli Criminality at the International Criminal Court (ICC)

First Reactions to the Farce of the Century

In Praise of Kamila Shamsie Home Fire

Why the United Nations Matters (even for the Palestinians)

Charlottesville Through a Glass Darkly

Richard Falk

Archives

Tags

Recent Posts

Categories

Education

Newspapers

Email Subscription