Tag Archives: Palestinian Statehood

Palestine Horizons: Winning the Long Game

21 Mar

Palestinian Balance Sheet: Normative Victories, Geopolitical Disappointments

Winning the Long Game

In recent weeks the Palestinian people have scored major victories that would havedire consequences for Israel if law and morality governed political destiny. Instead, these successes are offset by adverse geopolitical developments as a result of the Biden presidency embracing some of the worst features of Trump’s hyper-partisanship with respect to Israel/Palestine. Law and morality alter reputations, bear on the legitimacy of contested policies, while geopolitics bear more directly on behavior, the difference is best understood as separating symbolic and substantive politics.

Yet, legitimacy gains should not be dismissed just because nothing that matters on the ground seems to change, and sometimes vindictively changes for the worse. In the long game of social and political change, especially in the course of the last 75 years, the winner of the Legitimacy War waged for the high legal moral ground and competition for intensity of political commitment has much more often than not eventually controlled the outcome of a struggle for national self-determination and sovereign independence, overcoming geopolitical obstructions and military superiority along the way. The anti-colonial wars, it should not be forgotten, were won by the weaker side militarily, although quite often enduring an ordeal of desecration along the way. So far, Israeli leadership, although worried by its setbacks on the battlefields of the Legitimacy War have not departed from the American game plan of devising security through a combination of military capabilities and regional activity, allying against Iran, while subverting the unity and stability of potential hostile neighboring States. 

Relevant is the great unlearnable lesson of the last century that the U.S. dominated the military dimensions of the Vietnam War and yet managed to lose the war. Why unlearnable? Because if learned, the case for a permanent wartime military budget would disappear, and the stubborn mythic belief that ‘our military keeps us safe’ would lose much of its credibility.

With Biden as president, reviving alliance-based confrontational geopolitics, the prospect is for a dangerous and costly worsening of relations among major centers of global wealth and military power, avoiding the kind of reallocation of resources urgently requires to meet the challenges of the Anthropocene. We can bemoan the dysfunctionality of global militarism, but how can we gain the political traction to challenge it? This is the question we should be asking of our politicians without distracting them from addressing the urgencies of the domestic agenda bearing on health, economic recovery, and assaults upon voting rights. 

The Palestinian struggle continues, and offers the template of a colonial war carried on in a post-colonial era, in which a huge national oppressive regime backed by geopolitical support is required to enable Israel to swim against the strong liberation tides of history. Israel has proved to be a resourceful settler colonial state that has carried to completion the Zionist Project by stages, and with the vital help of geopolitical muscle, and has only recently begun to lose control of the normative discourse that earlier had been controlled by dramatizing the saga of persecuted Jews in Europe who deserved sanctuary accompanied by the denialist dismissal of Palestinian national claims to be secure in their own homeland. The Palestinians, having no significant relationship to the history of antisemitism were made to pay some of the humanitarian costs inflicted on Jews by the Holocaust while the liberal West looked on in stony silence. This one-sided discourse was reinforced by claiming the benefits of modernity, an insistence that the replacement of dirty backward Arab stagnancy in Palestine by a dynamic modern and flourishing Jewish hegemony, which later was also valued as a Western foothold in a region coveted for its energy reserves and more recently feared because of its anti-Western extremism and Islamic resurgence. The conflict over the land and the ideological identity of the emergent state, unfolding over a century, has had many phases, and has been affected, almost always adversely, by developments within the region and by geopolitical intervention from outside.

As with other anti-colonial struggles, the fate of the Palestinians will eventually turn on whether the struggles of the victimized people can outlast the combined power of the repressive state when, as here, it is linked to the regional and global strategic interests of geopolitical actors. Can the Palestinian people secure their basic rights through their own struggles wages against a combination of internal/external forces, relying on Palestinian resistance from within, global solidarity campaigns from without? This is the nature of the Palestinian Long Game, and at present its trajectory is hidden among the mystifications and contradictions of unfolding national, regional, and global history.

Palestinian Normative Victories

Five years ago no sensible person would have anticipated that Israel’s most respected human rights NGO, B’tselem, would issues a report declaring that Israel had established a unified apartheid state that governed from the Jordan River to the Mediterranean Sea, that is, encompassing not only Occupied Palestine but Israel itself. [This is Apartheid: A regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea, B’Tselem: The Israeli Information Center for Human Rights in Occupied Territory, 12 Jan 2021] With careful analysis the report showed that Israeli policies and practices with respect to immigration, land rights, residency, and mobility were administered in accordance within an overriding framework of Jewish supremacy, and by this logic, Palestinian (more accurately non-Jewish, including Druze and non-Arabic Christians) subjugation. Such a discriminatory and exploitative political arrangement is descriptive of apartheid, as initially established in South Africa and then generalized as an international crime in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. This idea of apartheid criminality was carried forward in the Rome Statute that provides the framework within which the International Criminal Court (ICC) in The Hague carries on its activities. Article 7 of the Rome Statute, a treaty of the parties, governing the ICC enumerates the various Crimes Against Humanity over which the ICC asserts its jurisdictional authority. Apartheid is classified as such a crime in Article 7(j), although without any accompanying definition, and no investigation by the ICC of apartheid allegations involving Israeli perpetrators has ever occurred. It is notable that regarding ‘apartheid’ as a crime against humanity would reduce the burden of proof as compared to allegations of ‘genocide.’

Only weeks after the B’Tselem Report came the much anticipated decision of the Pre-Trial Chamber of the ICC on February 6, 2021. By a 2-1 vote the Chamber’s decision affirmed the authority of Fatou Bensouda, the ICC Prosecutor, to proceed with an investigation of war crimes committed in the Occupied Palestinian territories since 2014, as geographically defined by its provisional 1967 borders. To reach this outcome the decision had to make two important pronouncements: first, that Palestine, although lacking many of the attributes of statehood as define by international law, did qualify as a State for purposes of this ICC proceeding, having been accepted as a Party to the Rome Statute in 2014 after being recognized by the General Assembly on November 29, 2012 as a ‘non-member Observer State.’; and secondly, that the jurisdiction of ICC to investigate crimes committed on the territory of Palestine was authoritatively identified as the West Bank, East Jerusalem, and Gaza, that is, the territories occupied by Israel during the 1967 War. In a decision that sought to convey impressions of judicial self-restraint it was pointed out that these legal positions were limited to the facts and claims under consideration, and did not purport to prejudge the statehood or territorial claims of either Israel or Palestine in other contexts. The lengthy dissent rejected this reasoning, relying heavily on the continuing relevance of the agreements concluded in accord with Oslo diplomacy that allegedly altered the status of the occupation, and took precedence, concluding that the Prosecutor lacked the legal competence to proceed with the investigation. [As the present Prosecutor’s term expires in June 2021, and a new Prosecutor takes over, Karim Khan, the future of these legal proceeding is uncertain.] 

It should be observed that this Pre-Trial proceeding had attracted unusually widespread interest in the world both because of the identity of the parties and the intriguing character of the issues. Jurists have long been intrigued by defining statehood in relation to different legal settings and by settling jurisdictional disputes addressing issues arising in territories that lack permanently established international borders and clear lines of sovereign authority. An unprecedented number of amicus curiae briefs were submitted to the ICC, including by prominent figures on both sides of the controversy. [I submitted an amicus brief with the collaborative help of the Al Haq researcher, Pearce Clancy. ‘The Situation in Palestine,’ amicus curiae Submissions Pursuant to Rule 103, ICC-01/18, 16 March 2020] Israel was not a Party to the Rome Statute, and declined to participate in the proceedings directly, but its views were well articulated by several of the amicus briefs. [e.g. by Dennis Ross who led the Clinton Era peace negotiations between Israel and Palestine. ‘Observations on Issues Raised by Prosecution for a ruling on the Court’s territorial jurisdiction in Palestine,’ ICC-01/18, 16 March 2020].

This decision was promising from a Palestinian point of view as an exhaustive Preliminary Investigation conducted by the Prosecutor over the prior six years had already concluded that there was ample reason to believe that crimes had been committed by Israel and by Hamas in Palestine, specifically referencing three settings: (1) the massive IDF military operation of 2014 in Gaza, known as Protective Edge; (2) the disproportionate uses of force by the IDF in responding to the Right of Return protests during 2018; (3) settlement activity in the West Bank and East Jerusalem.

The Prosecutor can now go forward has been legally established, including with the identification of individual perpetrators who could be charged and held accountable.

Whether this will happen now depends on the approach adopted by Mr. Khan when heassumes the role of Prosecutor in June, which remains a mystery despite speculation.

A further Palestinian victory is the defection of highly respected and well known liberal Zionists who have, so to speak, not seen the light, but speak openly about it, and command access to mainstream media. Peter Beinert is the most relevant example in an American context, but his announced disbelief in Israeli willingness to reach accommodation with the Palestinians on any reasonable basis is one more victory in the domain of symbolic politics. 

Geopolitical Disappointments

It was reasonable for Palestine and Palestinians to hope that a more moderate Biden presidency would reverse the most damaging moves taken by Trump that seemed to undermine still further Palestinian bargaining power as well as significantly encroached on Palestinian basic rights, and did so in a manner that rejected both the authority of the UN and international law. The Biden Secretary of State, Antony Blinken, sent signals on the most significant issues that seemed to affirm and ratify rather than reverse or modify the Trump diplomacy. Blinken affirmed, what Biden had implied, with respect to shifting the U.S. Embassy from Tel Aviv to Jerusalem, and thus joining Trump in defying a UNGA Resolution in 2017 that declared such a move as ‘void’ and without legal effect. Blinken has also indicated support for Israel’s territorial incorporation of the Golan Heights, which again defied international law and the UN, which had stood by a firm principle, earlier endorsed with respect to Israel’s occupation of Palestinian territories after the 1967 War in iconic Security Resolution 242. This text confirmed that foreign territory could not be

acquired by force, and anticipated Israeli withdrawal to 1967 borders (as modified by negotiations about minor border adjustments agreed to between the parties).

And above all, Blinken endorsed the normalization agreements between Israel and four Islamic States (U.A.E., Bahrain, Sudan, Morocco) achieved by bullying tactics of Trump

and the pursuit of self-interest. These were mainly symbolic victories for Israel having to do with regional acceptance and legitimacy credentials as well as regional containment and pushback alignment contra Iran. In many respects they extend prior de facto developments with a minimal impact of Israeli/Palestine dynamics.

Assessing Gains and Losses

So far Israeli fury directed at the ICC outweighs Palestinian geopolitical disappointments, the latter being likely tempered by apparent lingering hopes for a marginally improved relationship between the PA the U.S. and EU countries. And there have been some proper adjustments, including the announced willingness to reopen of PLO information centers in the U.S. and resumed diplomatic contact by Washington with the Palestinian Authority, and some language suggesting a return to diplomacy between in contrast with the Trump effort to dictate the terms of an Israeli victory put forth as ‘the deal of the century.’ Yet Biden’s early efforts in less controversial policy spheres to undo as much of Trump international mischief as possible, from rejoining Paris Climate Change Agreement, the WHO and UN Human Rights Council to expressing the intention to stress global cooperation and a revived internationalism, contrast with leaving as is the worst elements of the Trumpist effort to shatter Palestinian hopes. Whether this can be explained by the strength of bipartisan U.S. support of the Israeli unconditional relationship or by regional strategic factors is a matter of conjecture. Perhaps, the most plausible explanation is Biden’s own pro-Israeli past combined with his proclaimed commitment to unify America, working with Republicans to the extent possible. His totemic slogan seems to be ‘together we can do anything,’ which so far has not

had much encouragement from the other side of the aisle.

What might make the Palestinians somewhat more hopeful is the degree to which these two developments were battleground sites for those defending Israel by all means possible. Even Jimmy Carter was demeaned as an ‘anti-Semite’ because his 2007 book merely suggested in its title that Israel needed to make peace with the Palestinians or risk becoming an apartheid state. Recall that John Kerry’s rather mundane observation that Israel had two years left within the Oslo framework to make peace with Israel to avoid an apartheid future for itself encountered such a hostile reaction that he was led to apologize for the remarks, more or less repudiating what seemed so plausible when articulated.

As recently as 2017 an academic study sponsored by the UN, which I wrote together with Virginia Tilley, confirming apartheid allegations was denounced in the Security Council as a defamatory text unfit to be associated with the UN. The critical statements were accompanied by veiled American threats to withhold funds from the UN unless our report was repudiated, and it was dutifully removed from the UN website by order of the Secretary General. Even most Zionist militants at this point prefer silence in global settings rather than mounting attacks on B’Tselem once most beloved by liberal Zionists as tangible proof that Israel was ‘the only democracy in the Middle East.’

The reaction by Israel to the ICC decision rises to apoplectic levels of intensity. The fuming response of Netanyahu was echoed across the whole spectrum of Israeli politicians. In Netanyahu’s outrageous calumny against the ICC: “When the ICC investigates Israel for fake war crimes, this is pure anti-Semitism.” He added, “We will fight this perversion of justice with all our might.” Intemperate as are these remarks, they do show that Israel cares deeply about legitimacy issues, and rightly so. International law and morality can be defied as Israel has done repeatedly over the years but it is deeply mistaken to suppose that the Israeli leadership does not care. It seems to me that Israeli leaders understand that South African racism collapsed largely because it lost the Legitimacy War. Maybe some Israeli leaders are beginning to grasp the writing on the wall. The ICC decision may turn out to be a turning point not unlike the Sharpeville Massacre of 1965. This may be so even, as is likely, not a single Israeli is ever brought to justice before the ICC.  

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How the United States Government Obstructs Peace for Israel/Palestine

23 Jul

[Prefatory Note: I am posting a foreword written a year ago encouraging readers to engage with this extremely well argued book, Obstacle to Peace by Jeremy Hammond, which advances an important double understanding: the controversial assertion that the United States Government has not only taken Israel’s side in diplomatic negotiation between Israel and Palestine, but has actively opposed all moves toward the establishment of an independent sovereign state for the Palestinian people (meaning that the American endorsement of the two-state mantra as the consensus formula for peace was a deliberate official lie) and secondly, if this obstacle were removed the prospects for peace between these two peoples would greatly improve. Jeremy Hammond’s indispensable book can be ordered from Amazon, having been recently published by Worldview Publications in Cross Village, Michigan. For some the position taken in the book will be controversial as it amounts to a radical rehabilitation of the two-state consensus at a time when many believe that the settlement dynamic has proceeded past the point of reversibility and the Israeli leadership is positioning itself step by step to embrace a Zionist version of a unilaterally imposed one-state solution to the conflict.  Even if this is so, Hammond’s book valuably clarifies the context of past diplomacy, and sets the conditions for any constructive reconstruction of a negotiated and mutually agreed settlement of the conflict in ways that give reasonable hopes of a sustainable peace.]

Foreword to Jeremy R. Hammond’s Obstacle to Peace: The US Role in the Israeli-Palestinian Conflict

 

There is a widening public recognition around the world that diplomacy as it has been practiced with respect to resolving the conflict between Israel and Palestine has failed despite being a major project of the United States Government for more than two decades. Actually, worse than failure, this stalled diplomacy has allowed Israel, by stealth and defiance, to pursue relentlessly its vision of a greater Israel under the unyielding protective cover of American support. During this period, the Palestinian territorial position has continuously worsened, and the humanitarian ordeal of the Palestinian people has become ever more acute.

An acknowledgement of this unsatisfactory status quo has led European governments belatedly to question their deference to American leadership in resolving the Israeli-Palestinian conflict. It has also persuaded more and more social activists in civil society in this country and elsewhere to rely on nonviolent tactics of solidarity with Palestinian resistance, especially by way of the BDS Campaign that has been gathering momentum in the last year; and it is approaching a tipping point that seems to be making Israeli leaders noticeably nervous. Both of these challenges to the Oslo diplomatic approach are based on the belief that Israel has demonstrated its unwillingness to reach a political compromise with Palestine on the basis of a negotiated settlement even within a biased ‘peace process’ overseen by the US as partisan intermediary. In effect, there will not be solution to the conflict without the exertion of greatly increased international pressures on Israel to scale back its territorial ambitions. Such an outlook reflects the influential view that the time has come to resort to coercive means to induce Israeli leaders and Zionists everywhere to rethink their policy options along more enlightened lines. The implicit goal is that by means of this pressure from without, a “South African solution” will suddenly emerge as a result of an abrupt turnaround in Israeli policy.

Jeremy Hammond offers readers another approach, not incompatible with mounting pressure, and maybe complementary with it. In this meticulously researched, lucidly reasoned, and comprehensively narrated book, Hammond insists that not only has the Oslo style “peace process” turned out to be a bridge to nowhere, but that the United States Government, in criminal complicity with Israel, has actively and deliberately opposed any steps that could result in the establishment of an independent Palestinian state. Such an assessment poses a frontal challenge to the universally affirmed two-state supposed goal of these negotiations. Even Netanyahu has, at times, given lip service to an endorsement of a Palestinian state—although in the heat of an electoral campaign a few months ago he showed his true hand to the Israeli public by promising that no Palestinian state would come into being as long as he was prime minister. Netanyahu’s flight from hypocrisy was further reinforced by appointing Danny Danon, a longtime extremist opponent of Palestinian statehood, as the next Israeli ambassador to the UN, which can also be interpreted as another slap in Obama’s face. In this regard, it was the White House that did the heavy lifting to keep alive as long as possible the credibility of the flawed Oslo peace promise by insisting that this was the one and only path to ending the Israeli-Palestinian conflict.

In a refusal to adjust to this new Israeli posture, in Washington and at the UN, there is no departure from the consensus that a directly negotiated “two state solution” is the only path to peace, coupled with the totally fatuous tactical priority that what would alone be helpful is to persuade the parties to return to the negotiating table.  Recent American presidents are all on record as devoting their maximum effort to reach these discredited goals and treat all other tactics employed on behalf of the Palestinians as “obstacles” that set back the prospect of ending the conflict. The US Government joins with Israel in condemning all forms of international pressures to alter the status quo of the occupation, including Palestinian initiatives to be acknowledged as a full-fledged state within the UN System (a seemingly uncontroversial sequel to receiving diplomatic recognition as a state by more than 120 members of the UN) or to seek remedies for their grievance by recourse to the International Criminal Court. The United State has helped Israel use the Oslo peace process as a holding operation that gives Tel Aviv the time it needs to undermine once and for all Palestinian expectations of Israeli withdrawal and Palestinian sovereign rights. The whole Israeli idea is to make the accumulation of facts on the ground (that is, the unlawful settlement archipelago, its supportive Jews-only road network, and the unlawful separation wall) into “the new normal” that paves the way for a unilaterally imposed Israeli one-state solution combined with either Palestinian Bantuization or third class citizenship in an enlarged Israel.

It is against this background that Hammond’s book breaks new ground in ways that fundamentally alter our understanding of the conflict and how to resolve it. His abundantly documented major premise is that Israel could not proceed with its plans to take over the occupied territories of the West Bank and East Jerusalem without the benefits flowing from its “special relationship” with the United States. The perfidious reality that Hammond exposes beyond reasonable doubt is that the United States has been an essential collaborator in a grotesque double deception: falsely pretending to negotiate the establishment of a Palestinian state while doing everything within its power to ensure that Israel has the time it needs to make such an outcome a practical impossibility. This American role has included the geopolitical awkwardness of often standing alone in shielding Israel from all forms of UN censure for its flagrant violations of international law, which has included mounting evidence of an array of crimes against humanity.

As Hammond convincingly explains, the structures of government in the United States have been subverted to the extent that it is implausible to expect any alteration of this pattern of American unconditional support for Israel, at least in relation to the Palestinians, to come from within the government. Hammond also portrays the mainstream media as complementing this partisan governmental role, indicting particularly the New York Times as guilty of one-sided journalism that portrays the conflict in a manner that mostly accords with Israeli propaganda and sustains the malicious myth that the US is doing everything possible to achieve a solution in the face of stubborn Palestinian rejectionism. In this regard, Hammond informs readers in his preface that Obstacle to Peace is explicitly written to wake up the American people to these overriding realities with the intention of providing the tools needed by the public to challenge the special relationship on behalf of justice and the national interests and values of the American republic. Without making the argument overtly, Hammond is providing the public with the sorts of understanding denied to it by a coopted media. What Hammond does for the reader is to show in painstaking detail and on the basis of an impressive accumulation of evidence what an objective account of Israeli-Palestinian relations looks like, including by correcting the gross misreporting of the interactions in Gaza that have led to a series of wars waged by the totally dominant armed forces of Israel against the completely vulnerable civilian population of Gaza. In an illuminating sense, if the media was properly doing its job of objective reporting, Hammond’s book would be almost superfluous. Hammond’s democratic major premise is that if Americans know the truth about Israeli-Palestinian relations, there will result a mobilization of opposition that produces a new political climate in which elected leaders will be forced to heed the will of the people and do the right thing.

In a fundamental respect, Hammond is hopeful as well as brave, as he seems firmly convinced that Israel could not continue with its unjust and criminal policies if it truly loses the United States as its principal enabler. It is in this primary sense, as conveyed by book’s title, that the United States is the obstacle to peace; but if this obstacle could be removed, then the shift in the power balance would force Israel to face the new realities and presumably allow the Palestinians to obtain their fully sovereign state and, with it, reasonable prospects for a sustainable peace.  It needs to be appreciated that Hammond is writing as someone with a radical faith in the power of a properly informed citizenry to transform for the better the policies of the American republic, both with respect to the government and the media linkages that connect state and society with respect to the agenda of public policy.

In my view, Obstacle to Peace is the book we have long needed, utterly indispensable for a correct understanding of why the conflict has not been resolved up to this point, and further, why the path chosen makes a just and sustainable peace between Israel and Palestine a “mission impossible.”  Hammond goes further than this devastating exposure of past policy failures by offering guidelines for what he sensibly believes is the only viable way forward. Only the future will determine whether a grassroots movement can induce a repudiation of the dysfunctional special relationship, and if this should happen, whether it then leads Israel to act rationally to uphold its own security by finally agreeing to the formation of a Palestinian state. In Hammond’s view, ending the occupation and securing Palestinian statehood is the immediate goal of a reconstructed diplomacy, but not necessarily the end point of conflict resolution. He defers consideration of whether a unified secular state is the best overall solution until the Palestinians as a state are able to negotiate on the basis of equality with Israel, and then to be in a position to rely on diplomacy to finally fulfill their right of return, which has been deferred far too long.

In the end, Hammond’s extremely instructive book provides a fact-based overall account of the major facets of this complex relationship between Israel and Palestine and can be read as a plea to Americans to reclaim historical agency and act as citizens, not subjects. This plea is not primarily about the improper use of taxpayer revenues, but is concerned with activating the soul of American democracy in such a way that enables the country once more to act as a benevolent force in the world and, most concretely, to create the conditions that would bring peace with justice to the Palestinian people. 

With the greatest admiration for Hammond’s achievement in this book, I would point out finally that Obstacle to Peace is about more than the Israel-Palestine relationship and can be read beneficially with these larger concerns in mind. It is, above all, about the destruction of trust in the relationship between government and citizens, and about the disastrous failures of the media to serve as the vigilant guardian of truth and fact in carrying out its journalistic duties in a manner that befits a free society. Israel-Palestine is a powerfully reasoned and fully evidenced case study and critique of the systemic malady of contemporary American democracy that threatens the wellbeing of the country as never before.

Richard Falk

Yalikavak, Turkey

August 2015 

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The Complex Problematics of Palestinian Representation

30 Jan

 

 

[Prefatory Note: This post is a much modified and enlarged version of an article published on January 1, 2016 in Middle East Eye. It attempts to address the current quandary that arises from the collapse of Oslo diplomacy and the seeming continuing encroachment of Israel on the territories long believed to provide the Palestinian people with a sovereign state of their own. Such a prospect, now unattainable for both practical and political reasons, contemplated a Palestinian state that would enclose a territory that was 22% of historic Palestine, or less than half of what the 1947 UN partition plan envisioned. For this forthcoming compromise to have become non-negotiable is clear evidence that Israel is in the process of adopting a unilateral solution that is based on the priority of its biblical claims and ethnic origin narrative to the whole of historic Palestine, referred to as Judea and Samaria plus Jerusalem in internal Israeli discourse. In effect, the Palestine right of self-determination is being unconditionally denied, and the Palestinian people given several unpalatable choices with respect to their future.]

 

While serving as UN Special Rapporteur for Occupied Palestine, especially in my early years between 2008 and 2010, I fully expected to encounter defamatory opposition from Israel and ultra-Zionist, but what surprised me at the time were various efforts of the Palestinian Authority (PA) to undermine my role at the Human Rights Council in Geneva. Its representatives exerted various pressures to encourage my resignation, and made unexpected moves to challenge my reports, especially if they described the actuality of Hamas exercising governing authority in Gaza. At the time I had the impression that the PA was far more concerned with this struggle internal to the Palestinian movement than mounting serious criticism of the abusive features of the occupation. As I was trying my best on behalf of the UN to report honestly on Israeli violations of Palestinian rights under international humanitarian law and human rights treaties, I was puzzled at first, and then began to wonder whether the Palestinian people were being adequately represented on the global stage.

 

This issue of representation has been rendered acute partly due to Israeli policies of fragmenting the Palestinian people, and then complaining that they have no partner with whom to make peace. Fragmentation indirectly subverts the right of self-determination by rendering ambiguous or unsatisfactory the nature of the self, that is, the people that is entitled to benefit from the right. The emphasis on this interplay between ‘self’ and ‘peoples’ arises from the authoritative language of Article I of the two human rights covenants that both make ‘self-determination’ the most fundamental of rights, which encompasses the others, and confers that right on ‘peoples’ rather than ‘states’ or ‘governments.’

 

The Palestinians are far from being the only people that is subjugated in ways that deny the ‘self’ the benefit of adequate representation. Consider the plight of the Kurdish people, or should it by now be ‘peoples,’ that can be traced back to the fragmentation imposed on Kurds by the manner in which colonial ambition reconfigured the political communities that has formerly been part of the Ottoman Empire in the ‘peace diplomacy’ that followed World War I. It is the notorious Sykes-Picot framework that was imposed on the region, and significantly responsible for the present turmoil that can be understood as a series of interrelated struggles by subjugated minorities to establish more natural political communities that protect their identities and their rights.

 

Jurists and politicians can spend endless hours debating whether the claimant of rights is indeed a people from the perspective of international human rights law. Many remember Golda Meir’s famous taunt, ‘Who are the Palestinians?’ There are many unrepresented peoples in the world that are marginalized in various settings, and none more regrettably than the 350 million so-called ‘indigenous peoples,’ victims of brutal dispossession, ethnic cleansing, genocide, and a variety of oppressive forms of subjugation. A truly humane world order would find ways to address historic grievances, while acknowledging that the past cannot be recreated or the present undone. There needs to be some good faith effort to reconcile the pastness of the past with overcoming the suffering being endured in the present. It is this process of reconciliation that Edward Said others articulated as the path to a sustainable peace for Jews and Palestinians.

 

Whatever the historic narrative that questions the emergence of Israel, as of the 21st century both practical and normative considerations converge on the quest for the dual realization of self-determination for Jews and Palestinians. Note that Zionism is a political project that was embraced by the Jewish people but it is not necessarily a reflection of self-determination for Jews if it encroaches on an equivalent Palestinian right. There is room for compromise, but only on the basis of accepting claims of equality, and refusing to treat the ‘settlements’ as part of the pastness of the past or to regard Palestinian refugees living in camps within and outside of Palestine as enjoying an inferior right of return or repatriation to that conferred on the Jewish people. Reasoning along this line makes it seem diversionary to continue the pursuit of a two-state solution, but this is a matter for the two peoples to decide by themselves if the right of self-determination is to be respected. And this prescribed course of action returns us to the issues surrounding the legitimacy and authenticity of representation. Until this issue is resolved a peace process is problematic if the goal is a sustainable and just peace.

 

Representation at the UN

 

Among the many obstacles facing the Palestinian people is the absence of any clear line of representation or even widely respected political leadership, at least since the death of Yasir Arafat in 2004. From the perspective of the United Nations, as well as inter-governmental diplomacy, this issue of Palestinian representation is treated as a non-problem. The UN accepts the Palestinian Liberation Organization (PLO) as the sole legitimate representative of the Palestinian people, although the reality of Palestinian governance to the PA since the Oslo diplomacy was initiated in 1993. A similar split between legal formalism and effective authority exists in international diplomacy although most of the 130 governments have extended diplomatic recognition to the PLO, rather than Palestine, despite its increasingly marginal role in the formation of national and international Palestinian policy in recent years. Ever since the General Assembly accorded recognition to Palestinian statehood in 2012 the question of representation has been settled in favor of the UN within the framework of the UN (UNGA Res. 67/19, 29 Nov. 2012).

 

This distinction between the PA and PLO is obscure for almost all commentators on the Israel/Palestine struggle, yet it has important implications for diplomacy and the scope and scale of Palestinian representation. The PA, headed by Mahmoud Abbas, is basically preoccupied with the West Bank and its own political relevance, and has seemed perversely aligned with Israel with respect to the fate of Gaza and even the 5-7 million Palestinian refugees worldwide. In contrast, the PLO, at least in conception and until the Oslo diplomacy took over, also in practice, conceived of its role to be the representation of Palestinians of a variety of political persuasions, as well as whether living under occupation or as refugees and exiles, that is, as a people dispossessed rather that a territory oppressively occupied.

 

The Oslo Diplomatic Fiasco

 

Among the flaws of Oslo was its affirmation of the delusion that a sustainable peace could be achieved simply by negotiating an end to the occupation of the West Bank, and maybe Gaza and East Jerusalem. The territorial remnant that was left after the Israeli withdrawal would then be viewed Palestine as a semi-sovereign state within these arbitrary borders. This ‘two-state’ international consensus even after its PLO endorsement in 1988 and regional incentives provided to Israel by the Arab Initiative of 2002 was, despite this, effectively killed by a combination of Israeli diplomatic rejectionism and its relentless.

 

The Israeli rejection of the two state option, which from a Palestinian perspective was at most a minimalist version of peace, was made manifest over the last 25 years by increasing the inhabitants of the settlement gulag, establishing at great expense an infrastructure of settler only roads, and through the construction of an unlawful separation wall deep in occupied Palestine. Yet the 20+ years of negotiation within this framework served Israel well as does the lingering illusion that the only viable settlement is still a rendering of the two-state solution. Sustaining this illusion also helps the United States, and Europe, and perhaps most of all the PA by keeping its international status credible. It allowed Israel the protective cover it needed to continue annexing, building, and cleansing until a point of practical irreversibility was reached some years ago. These defiant actions on the ground undermined effectively the two state mantra without suffering the slightest adverse consequence. This enabled the United States, especially, but also Europe, to sustain the international illusion of ‘a peace process’ while the realities on the ground were making ‘peace’ a dirty word of deceit. It has become a ‘zombie solution,’ where the proposal outlives its viability, and serves purposes other than what it claims.

 

Most of all, this Oslo charade made the PA seem like it was a genuine interim state-building stage preceding existential statehood. In a situation without modern precedent, the PA achieved a weak form of de jure statehood via diplomatic maneuvers and General Assembly partial recognition under circumstances that lacked the most essential attributes of de facto statehood. Usually the situation is reversed, with the realities of statehood serving as a precondition to its diplomatic and legal acknowledgement. Israel played along with this Palestinian game by denouncing such PA moves as outside the agreed Oslo plan of statehood to be achieved only through negotiations between the parties. Of course, Israel had its own reasons for opposing even the establishment of such a ghost Palestinian state as the Likud and rightest leadership were inalterably opposed to any formal acceptance of Palestinian statehood even if not interfering with Israel’s actual behavior and ambitions.

 

Interrogating the Palestinian Authority

 

Yet there are additional reasons to question PA representation of the Palestinian people in the present situation. Perhaps, the most fundamental of all is the degree to which the PA has accepted the role of providing security in accord with Israeli policy within those parts of the West Bank under its authority, which includes the main cities. It is thus hardly surprising that Ramallah suppresses many nonviolent resistance activities of the Palestinians, including demonstrations in support of the beleaguered people of Gaza. As well, the PA zealously apprehends those militant Palestinians alleged to be supporting Hamas or Islamic Jihad, and is accused of torturing many of those detained in its prisons often without charges. The PA has also consistently leaned toward the Israeli side whenever issues involving Gaza have arisen since the Hamas takeover of administrative governance from Fatah in 2007. Perhaps, the high point of this collaborationist behavior was the PA effort to defer consideration of the Goldstone Report detailing evidence of Israeli criminality in the course of its 2008-09 attack (Operation Cast Lead) on Gaza; such a move was widely and accurately perceived as helping Israel and the United States to bury these extremely damaging international findings that confirmed the widespread belief, already substantiated by a series of NGO reports, that Israel was guilty of serious war crimes.

 

There have been several failed efforts by the PA and Hamas to form a unity government, which would improve the quality of Palestinian representation, but would not overcome all of its shortcomings. These efforts have faltered both because of the distrust and disagreement between these two dominant political tendencies in occupied Palestine, but also because of intense hostile reactions by Washington and Tel Aviv, responding punitively and tightening still further their grip on the PA, relying on its classification of Hamas as ‘a terrorist organization’ that thus making it categorically ineligible to represent the Palestinian people. Everyone on the Palestinian side agrees verbally that unity is indispensable to advance Palestinian prospects, but when it comes to action and implementation there is a disabling show of ambivalence on both sides. The PA, and its leadership, seems reluctant to give up its international status as sole legitimate representative and Hamas is hesitant to join forces with the PA given the difference in its outlook and identity. Since 2009 there have been no elections that would lend grassroots legitimacy, at least in the West Bank, to the PA claims relating to representation.

 

What Should be Done

 

In the end, there is reason to question whether PA status as representing the Palestinian people in all international venues deserve the respect that they now enjoy. It is a rather complex and difficult situation that should be contextualize in relation to the Israeli strategy of fragmentation, one purpose of which is a deliberate effort at keeping the Palestinian people from having coherent and credible representation, and then contending disingenuously that Israel has ‘no partner’ for peace negotiations when in fact it is the Palestinian people that have no genuine partner in Tel Aviv as the Israeli leadership has made abundantly clear that it will never allow a viable and truly sovereign Palestinian state to be established.

 

Among diaspora Palestinians I believe there is an increasing appreciation that neither the PA nor Hamas are capable of such representation, and that greater legitimacy attaches either to the demands of Palestinian civil society that underlie the BDS Campaign or are associated with the person of imprisoned Marwan Barghouti or to Mustafa Barghouti who is the moderate, secular, and democratic leader of the Palestinian National Initiative situated in the West Bank. What these less familiar forms of representation offer, in addition to uncompromised leaders, is a program to achieve a sustainable peace that is faithful to the aspirations of the whole of the Palestinian people and is not compromised by donor funding, Israeli controls, collaborationist postures, and geopolitical priorities. It takes seriously the responsibility to represent the Palestininian people in ways that extend to the Palestinian refugees and to the Palestinian minority of 1.6 million living in Israel as well as to those living under occupation since 1967.

 

Overall, the picture is not black and white. The PA, partly realizing that they had been duped by the Oslo process and that Israel will never allow a viable state of Palestine to emerge, have resorted to a more assertive diplomatic positions in the last few years, including an effort, bitterly resisted by Israel to make allegations of criminality following from their controversial decision to become a party to the International Criminal Court. Also, it is important that the Palestinian chair at the UN not be empty, and there is no present internationally acceptable alternative to PA representation. Perhaps, an eyes wide open acceptance of the present situation is the best present Palestinian option, although the approach taken to representation is in the end up to the Palestinians. It is an aspect of the right of self-determination, which as earlier argued is the foundation for all other human rights. At the very least, given the dismal record of diplomacy over the course of the last several decades, the adequacy of present representation of the Palestinian people deserves critical scrutiny, especially by Palestinians themselves.

 

Two final observations are in order. First, it may be useful to distinguish what might be called ‘Westphalian representation’ from ‘populist representation.’ Westphalian representation is the outcome of intergovernmental diplomacy and controls access to international venues, including the UN. Populist representation may or may not reinforce Westphalian representation, and is based on the outlook of civil society if taking the form of a consensus. At present, there is some tension between these two ways of conceiving of representation. There is also the issue raised by the exclusion of Hamas from the operation of Westphalian representation despite its exercise of governmental control over a significant portion of the Palestinian territorial reality.

 

Secondly, it is relevant to appreciate that the PA seems to be pursuing a ‘two state’ solution by unilateral initiative rather through negotiations and the consent of Israel. Its state-building initiatives in the West Bank combined with its diplomatic statehood initiatives seem designed to generate a sort of ‘state’ that enjoys a certain international status even though the reality of subjugation under apartheid administrative structures remains the experience of the Palestinian people who continue to live with the ordeal of a quasi-permanent occupation.

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Oslo is dead! Long live Oslo! The UK House of Commons Supports Diplomatic Recognition of Palestine

19 Oct

(Prefatory Note: The post below is a modified version, especially the ending, of a piece published online two days ago in AlJazeera English.  While appreciating the importance of the European moves to endorse Palestinian statehood, seeks a more definitive repudiation of the Oslo Approach. It calls for an end to the U.S. role as exclusive intermediary and the presumed outcome of a peace process being two states without indicating the character of the Palestinian states. So far, the two-state mantra has been cut back to allow Israel to retain at least the unlawful settlement blocs and to insist on arrangements that uphold their security against unforeseen threats, while granting not a word of acknowledgement to Palestinian security concerns. My own strong belief is that unless the two peoples are treated with full equality in seeking a solution, the result will not be sustainable or just even in the unlikely event that some sort of agreement is reached.)

 

 

 

 

Oslo is dead! Long live Oslo! The UK House of Commons Supports Diplomatic Recognition of Palestine

 

On October 13 the House of Commons by an overwhelming vote of 274-12 urged the British government to extend diplomatic recognition to Palestine.

At first glance, it would seem a rather meaningless gesture. It is a non-binding resolution, and Prime Minister David Cameron has already declared that this expression of parliamentary opinion will have no effect whatever on existing government policy. So far Britain along with the states in Western Europe adhere to Israel’s stubborn insistence, echoed by Washington, that Palestinian statehood can only be established through a solution to the conflict negotiated by the parties.

 

Even if the British vote was binding, why should it be seen as a dramatic move in Palestine’s favor? After all, Palestine has already been accorded recognition by 134 states since Yasir Arafat declared the existence of a Palestinian state within 1967 borders back in 1988.

 

Such downgrading of the significance of what took place is also part of the Israel tactical response. Its ambassador in London now declining even to comment on the decision after earlier indicating extreme disapproval with the evident hope of discouraging affirmative votes. Before the vote Israeli leaders used their levers of strong influence to discourage the vote. Netanyahu even insisted that such a step would seriously diminish prospects for resumed negotiations and would seriously harm peace prospects. After losing out, the Israeli tone changed, now calling the vote meaningless and devoid of importance.

 

In actuality, the UK initiative is an important symbolic victory for the Palestinians. Until the recently when the elected Swedish government indicated its intention to recognize Palestine as a state at some future undesignated time, no Western European government had broken ranks on the Oslo approach as interpreted by Israel and the United States. It is this approach that has put a straightjacket on diplomacy, requiring any progress toward a solution to be exclusively through direct negotiations for a Palestinian in which the U.S. acts as the one and only intermediary.

 

At stake, then, is not only the momentum building for European countries to extend recognition to Palestine, but also a belated admission that this Oslo approach after more than 20 years of futility should no longer be respected as the consensus foundation of Israel-Palestine conflict resolution. The UK action needs to be joined with the recent diplomacy of the Palestinian Authority, first the Fatah/Hamas agreement of April to form a unity government, and even more so, the resolution to be submitted to the Security Council on behalf of the Palestinian Authority that calls for Israeli withdrawal to 1967 borders, including East Jerusalem, no later than November 2016. It is expected that the U.S. will veto this resolution if it is unable to mount enough pressure to prevent nine SC members from voting affirmatively. Such an initiative by Ramallah further signals that the PA is no longer willing to play the waiting game that has given Israel ample time for settlement expansion and ethnic cleansing in East Jerusalem past points of no return.

 

In Mahmoud Abbas’ speech of September 26th to the General Assembly he clearly indicated that he was refusing to cooperate any longer with these diplomatic maneuvers facilitated by the Oslo framework. Responding to Palestinian pressures from below, Abbas left no doubt that he would not pretend that he had ‘a partner for peace,’ thereby turning the tables on Tel Aviv. He signaled this clearly when he described Israel’s 50-day military operation against Gaza this past summer as “a genocidal war.” The G-word was bound to elicit an angry Israeli response, which Netanyahu provided a few days later in the same UN venue, calling Abbas’ speech “shameless.”

 

There still remains a lingering and unfortunate ambiguity in these developments suggesting we have not yet truly arrived at a post-Oslo phase of diplomacy. The UK resolution accepted an amendment stating that its purpose was “as a contribution to securing a negotiated two-state solution.” The former British Foreign Secretary, Jack Straw, elaborated on this, suggesting that was being done was to exert additional pressure on the parties to get on with negotiating a two-state outcome. This tail wagging the dog is a regression, sustaining the illusion that Israel, whatever the context, is at all willing at this stage to allow an independent sovereign Palestinian state to be established within 1967 borders, even if these are slightly modified. In effect, “Oslo is dead! Long live Oslo!”

 

Since the latest Gaza war there have been two developments of lasting significance : first, the inter-governmental diplomacy is slowly moving away from the Oslo approach, and Western Europe is beginning to fill the diplomatic vacuum created by the April collapse of the Kerry round of talks between Israel and the Palestinian Authority. And Secondly, civil society nonviolent militancy and political leadership is beginning to occupy center stage in Palestinian hopes and dreams, particularly taking the form of the growing BDS campaign, but also visible in the refusal of Oakland, California workers to unload an Israeli cargo ship.

 

This latter fulcrum of resistance within Palestine and without raises serious leadership and representation questions—who now speaks with authority and authenticity on behalf of the Palestinian people? how can this question be answered given the statist manner in which the world is organized? Let me put my own understanding of this issue more directly: I find that the voices of Omar Barghouti and Ali Abunimah to be more authoritative and authentic than are those of the diplomats from Ramallah who a few years ago showed themselves ready to give the store away in the Palestine Papers and on other occasions. They couldn’t manage such a transaction since Israel apparently felt it already owned the store and was not ready to show gratitude even for a political outcome heavily slanted in their favor.

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Questioning Sweden’s ‘Bold’ Diplomatic Initiative

11 Oct

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

21 Jul

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

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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