The ICC Decides to Investigate War Crimes in West Bank and Gaza

The International Criminal Court at The Hague
The International Criminal Court at The Hague

As Israel moves toward its third round of elections in less than a year, Prime Minister Benjamin Netanyahu is desperate to find a way to hold on to power. More than vain self-interest motivates him now, as he hopes that being a sitting (and re-confirmed) prime minister will make it impossible for him to be tried, convicted, and eventually jailed for the corrupt dealings with which he has been charged.

Netanyahu was doubtless overjoyed to hear that the International Criminal Court (ICC) in the Hague has decided there was sufficient cause to investigate whether war crimes had been committed by Israel in the West Bank and Gaza Strip over past five and a half years. The announcement provided him with exactly the kind of target he likes best, one that allows him to claim that Israel is being singled out, persecuted, held to an unfair standard, and all because of antisemitism.

That assertion is absurd on its face, and hardly worth examining. Israel’s human rights record is open for all to see, and it’s not pretty. Moreover, the ICC isn’t investigating Israel; it is investigating the conflict in the occupied territories, and that investigation includes all parties involved. That’s just one of several key points that need to be understood regarding the ICC investigation. Read more at Responsible Statecraft

Preparing for a Post-Abbas Palestine?

On December 31, Palestinian President Mahmoud Abbas closed out a year of stinging defeats by signing on to 18 374713108_04a72adb2b_zinternational accords. Included among these was the Rome Statute, the treaty that established the International Criminal Court (ICC). The reaction in Jerusalem and Washington was apoplectic.

The United States rebuked Abbas, and Israel immediately vowed harsh reprisals. Shortly thereafter, Israeli Prime Minister Benjamin Netanyahu announced that although Israel would not increase settlement growth—a routine method of punishing the Palestinians—it would withhold the tax and tariff revenues it collects for the Palestinians. The Obama administration also announced that it was reviewing the annual U.S. aid package to the Palestinian Authority.

These actions were to be expected. But some other developments were much more unusual. For instance, Netanyahu also started urging his friends in Congress to cut aid to the Palestinian Authority (PA) in response to its signing on to the Rome Statute and threatening to bring Israelis to trial for war crimes. In the past, Netanyahu and his supporters have persuaded Congress to refrain from such action, for fear that such a drastic loss of funding would cause the PA’s collapse and force Israel to take on the full burden and expense of its occupation.

Something has clearly changed.

Palestine’s International Gambit

The State of Palestine may not exist in reality, but many countries around the world have recognized it. More importantly, the United Nations General Assembly granted Palestine non-member observer state status in 2012. That means it has certain rights, and Israel is trying to stop the Palestinians from exercising those rights.

The plea to the Palestinians, for decades, was that they should abandon armed struggle and use non-violent methods to achieve their national goals. Yet when they tried negotiations, they got 20 years of expanding settlements—which seems to have buried the notion of a two-state solution—and an occupation that is more entrenched than ever. The PA conceded 78% of the land that was once Palestine and policed the West Bank on behalf of Israel, a level of security cooperation that military and police officials from both Israel and the United States have praised. Yet Israel insists it must keep most of Area C, a subdivision of the West Bank, for security purposes.

And now, when Palestine has appealed to international legal institutions, Israel in response has stolen—there really is no other word for it—the Palestinians’ tax and tariff revenue, and the United States has threatened to suspend $440 million in annual aid.

All of this raises a central question: just what methods should the Palestinians employ to achieve their independence and put an end to the decades-long refugee status that has denied them the basic human, civil, and national rights that so many people around the world take for granted? Israel seems to expect the Palestinians to do nothing but watch settlements spread and the occupation become more entrenched and violent. Meanwhile, Israel moves closer to supporting the various plans proposed by right-wing political leaders for an institutionalized apartheid that would entail the annexation of much of the West Bank and the cantonization of Palestinian towns and villages in what little is left..

This recipe for increased Palestinian extremism, militancy, and violence—in short, a formula for endless conflict—is the take-it-or-leave-it offer that the United States and Israel are sending to the Palestinians. The United States and Israel apparently expect the Palestinians to passively accept the status quo in the hope that the world’s only superpower and the Mideast’s regional superpower will some day decide to grant them their freedom. However unrealistic this course of action might be, the recent shifts in Israeli strategy on this front indicate that both countries are more resolutely moving in this direction .

Abbas Out, Dahlan In?

Israel’s lack of interest in the fate of Mahmoud Abbas is of relatively recent vintage. The shift appears to have begun in October when Israel was dealing with daily clashes in Jerusalem. Not only the Palestinians but also Jordan and even the United States began raising serious questions about Israel’s intentions in the flashpoint city. At that time, Netanyahu’s rhetoric toward Abbas became considerably more virulent. He stopped just short of calling Abbas a terrorist when he accused him of “inciting terror” and implied a guilt by association after Abbas agreed to establish a unity government with Hamas.

That rhetoric grew even angrier as the PA moved to propose, through Jordan, a Security Council resolution that would set a deadline for an Israeli withdrawal from the West Bank. When that resolution inevitably failed, the PA vowed to pursue membership in the ICC. It is likely that the crisis over Jerusalem in the fall convinced Netanyahu to work to bring Abbas down, as some of Israel’s leading right-wing figures, notably Avigdor Lieberman and Naftali Bennett, have been suggesting for some time.

In this context, reports that a senior Likud figure met with Abbas rival Mohammed Dahlan some time in November become more interesting. Dahlan has been getting a lot more attention among the Palestinian public lately. He has been working on building ties with Hamas and has almost certainly been in contact with Israel for quite some time. In particular, the possibility that he might be exploring a stronger working relationship with Hamas might, coupled with Israel’s change of heart regarding Abbas, have convinced Israel that now was the time to intensify contacts with Dahlan in anticipation of a post-Abbas future.

Congress Weighs In

The Israeli response to the Palestinians’ signing of the Rome Statute was not a spur-of-the-moment decision. South Carolina Senator Lindsey Graham, a leading Republican and the incoming chairman of the Senate Appropriations Committee, was in Israel in the waning days of 2014, just as Abbas’ efforts at the Security Council were in full swing. Graham’s vow that Congress would follow Israel’s lead on the issue of Iran’s nuclear program certainly applied with equal force to these Palestinian actions, as they are issues on which there is much less difference of opinion between the White House on one hand and Congress and Israel on the other.

So, it comes as no surprise that, almost as soon as Congress was back in session, Senator Rand Paul, a Kentucky Republican, introduced a bill that would change the current criteria for cutting aid to the PA. As it stands, U.S. law permits the Palestinians to join the ICC and only requires cutting off aid if they initiate or support an ICC investigation of Israel. Paul’s bill would deny the Palestinians aid just for signing the Rome Statute.

Paul is not one of Israel’s darlings in Congress. In fact, he opposes foreign aid on principle. But since he knows where Republican presidential campaign bread is buttered, he  makes an exception for Israel these days. Nonetheless, whether it’s Paul’s bill or some other one that another member of Congress draws up, aid to the PA is likely under serious threat unless Israel once again changes its mind about this strategy.

If, however, Israel and Congress continue on their present course, the Palestinian Authority will not be able to survive much longer. The rest of the world may not be prepared for a post-Abbas future. But there might not be much time left to get ready.

Oslo Process: The Walking Dead

John Kerry’s words at a report-back to the Senate Foreign Relations Committee sent shock waves all the way to Jerusalem. “Unfortunately, prisoners were not released on the Saturday they were supposed to be released,” he said. “And so day one went by, day two went by, day three went by. And then in the afternoon, when they were about to maybe get there, 700 settlement units were announced in Jerusalem and, poof, that was sort of the moment. We find ourselves where we are.”

That was well outside the usual boundaries of discourse for top US officials, and it certainly got noticed. Kerry’s own State Department subordinates quickly rushed to reaffirm that “…today, Secretary Kerry was again crystal clear that both sides have taken unhelpful steps and at no point has he engaged in a blame game.”

But the message was clear and Kerry himself has taken no steps to truly back off from it. He technically didn’t “blame” Israel. Rather, as he put it, “I only described the unfolding of events and the natural difficulties involved in managing such a complex and sensitive negotiation.”

The message, in a nutshell, is that the Obama administration is fed up with Bibi Netanyahu and his antics. That’s been welcomed by the vast majority of thinking analysts and observers who understood long ago that Israel has acted as the major obstacle to talks and that US pandering to Netanyahu was only going to harden the Israelis’ positions. But that welcome needs to be cooled a bit.

However frustrated Kerry may be by Netanyahu and Palestinian President Mahmoud Abbas declining to accept a US-brokered deal that was absurdly lopsided in Israel’s favor, the peace process must, apparently, go on. The United States continues intense efforts to bring the two sides back to the table despite the fact that months of talks have only been counter-productive and that the current goal of the talks is to find a framework for talks. At this point, the entire Oslo process is little more than a joke. If anything, it resembles a zombie from the television show, The Walking Dead — it’s really dead but it just keeps walking around and making noise.

Despite Kerry’s testimony, he’s staying in the business of bringing Israelis and Palestinians back to the table, and there’s one reason: the only goal remaining on the Obama administration’s agenda is to prevent the talks from completely breaking down on their watch. Yet it seems even that modest goal is beyond Kerry’s grasp. According to Israeli officials, the method for bringing the talks back to zombie-life is to re-issue the offer Abbas pre-empted with his application to fifteen international treaties and institutions. The only changes apparently on the table are compensation to Israel for Abbas’ heinous crime.

Despite Abbas’ unusually bold action in those applications, his track record of submission suggests he will cave-in again. Still, it’s hard to see how he can justify such a turnaround under these circumstances. So, it’s slightly more likely that he will not agree to this. But the most likely outcome is that the Israelis and Palestinians will continue to squabble, and that the deadline of April 29 will be upon us before Kerry can put the sham talks back together.

Given the beating the US is taking around the world over other issues, especially Ukraine; and the always-tenuous balance of maintaining the Iran nuclear talks, Kerry may have no choice but to finally give up on this poorly planned and even more poorly executed attempt to secure a resolution of the Oslo process. It’s now too late, but given the enormous amount of energy Kerry has devoted to this quixotic task, he may not be able to admit it. In any case, the US now must choose between looking foolish by giving up or looking even more foolish by pressing on in this effort when it’s clearly not prepared to do what it would take to get something done.

Abbas has pretty much mapped his post-talks course, and it certainly seems like most Palestinians are anxious to see it happen. That is, increased activism at the United Nations, including applying for accession to the Rome Statute, which would allow the Palestinians to bring Israeli leaders to the International Criminal Court on war crimes charges. Israel is very concerned about that, and that’s why despite the total harmlessness to Israel of the Palestinians’ fifteen international applications, Israel is reacting with increased threats, including an announced intention to steal the tax revenues Israel, by agreement, collects for the Palestinians.

In fact, it is in Israel where we have seen the most activity in response to the breakdown in talks, and none of it is encouraging. The Israeli opposition took days to comment. Zehava Gal-On, head of the left-wing Zionist Meretz Party had, as one would expect, the clearest criticism, saying Israel had given the United States “the finger.” The ostensible leader of the opposition, Isaac Herzog, was less harsh, but called for new elections. That would, however, be foolish as recent polls clearly indicate a strengthening of the right-wing majority. The two parties within Netanyahu’s coalition — HaTnuah and Yesh Atid — which are supposed to be holding Bibi’s feet to the peace talks fire, scrambled desperately to find credible ways to support Netanyahu instead.

Netanyahu’s critics have come from his right flank, in two different ways. First, Trade and Labor Minister, Naftali Bennett of the religious HaBayit Hayehudi (Jewish Home) party called for Israel to annex large chunks of the West Bank to punish the Palestinians for their fifteen applications. While there is no chance Israel will do that in the near future, Bennett has been pushing annexation since he rose to the top of his party and has vowed to intensify the public campaign in this direction. Given the ongoing rightward trend among Israeli citizens, this is a cause that could gain considerable momentum going forward.

Then, Netanyahu’s Foreign Minister, Avigdor Lieberman continued his efforts to position himself as the next Prime Minister by meeting with Kerry and publicly stating that Kerry didn’t blame Israel for the breakdown. Lieberman thus gave the impression of himself as a true diplomat, an image the radically right-wing and historically undiplomatic leader of the largely Russian Yisrael Beiteinu (Israel Our Home) party, has been trying to cultivate ever since he came back to his post after being suspended while under investigation for corruption charges. Lieberman still invites great skepticism among Israelis, but his image is definitely improving.

Bennett, having gotten wind of the attempt by Kerry to revive the talks, then publicly declared that he would pull HaBayit HaYehudi out of the government if the previously arranged deal, or anything similar, went through. Bennett is known for bombast, and the fact is that this stance of his is not supported by his own party. Even HaBayit HaYehudi Housing Minister Uri Ariel, who played a central role in derailing the talks by announcing new settlement construction just as Kerry was trying to put a crutch underneath the discussions, disagrees with Bennett.

Still, these challenges from his right flank are serious for Netanyahu in the long-term, although right now, his popularity is rising among Israelis. That is probably more dismaying than anything else. Israel has, at last, killed the Oslo process and Abbas’ apparent willingness to continue working with the United States to keep them going for no discernible purpose is not winning him any points among his own public.

In the end, the situation is merely a more concentrated form of the one which has held for most of the Oslo era. The United States insists on both managing the process and keeping it going. It calls on the Israelis and Palestinians to make “hard choices” and take “bold steps,” yet administration after administration is unwilling to make its own choices and take its own steps in the face of expected political backlash to bring about a deal. Israel keeps its own goal front and center; that being to make sure that it minimizes, or even eliminates, the possibility of any significant Israeli concession. And the Palestinian people wait for a leadership that will defend their interests and recognize that cooperation with the United States will never get them to their goals of independence and self-determination.

A Threat To Israel? Palestinians Apply To Human Rights Conventions

In an earlier article I discussed the apoplectic reaction by the United States to the Palestinian decision to send letters of accession to fifteen international conventions and treaties. This was condemned by Samantha Power in congressional testimony as a threat to Israel. Earlier, a White House spokesman had equated this Palestinian move with Israeli settlement expansion and reneging on the agreed release of prisoners by calling both moves “unhelpful, unilateral actions.”

So let’s examine these unilateral steps by the Palestinians and what existential threat they pose to Israel. Here is the list of the fifteen conventions that the Palestinians want to become a party to:

  1. The Four Geneva Conventions of 12 August 1949 and the First Additional Protocol
  2. The Vienna Convention on Diplomatic Relations
  3. The Vienna Convention on Consular Relations
  4. The Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict
  5. The Convention on the Elimination of All Forms of Discrimination against Women
  6. The 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
  7. The Convention on the Rights of Persons with Disabilities
  8. The Vienna Convention on the Law of Treaties
  9. The International Convention on the Elimination of All Forms of Racial Discrimination
  10. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  11. The United Nations Convention against Corruption
  12. The Convention on the Prevention and Punishment of the Crime of Genocide
  13. The International Convention on the Suppression and Punishment of the Crime of Apartheid
  14. The International Covenant on Civil and Political Rights
  15. The International Covenant on Economic, Social and Cultural Rights

As you can see, the Palestinian applications do not affect Israel in any way. In fact, the Palestinians went out of their way to avoid impactful applications, such as to the Rome Statute (which would allow them to bring war crimes charges against Israel to the International Criminal Court) or to any United Nations bodies (which, thanks to Israel’s bought-and-paid-for US Congress would force the United States to suspend funding to any such bodies, as it did in response to UNESCO accepting the Palestinians in 2011).

If we want to really stretch our imaginations, we can come up with two things Israel might be concerned about. One is that by joining these conventions, Palestine looks a little bit more like a state. The second is that if Palestine is a signatory to the Geneva Conventions, it helps to undermine Israel’s argument that the Conventions don’t apply to the Occupied Territories because after the 1948 war, they were merely occupied by other countries, rather than being truly part of a neighboring state.

But those imaginative leaps don’t amount to much, because even if they were Israel’s concerns — and they’re not — they’d be very minor. The accession to these conventions would be nothing next to the UN General Assembly’s decision to admit Palestine as a “non-member observer state” in November 2012. And no one who takes international law seriously buys Israeli arguments that the Geneva Conventions don’t apply to the Occupied Territories.

No, Israel’s concerns are that the Palestinians took an action that Israel did not agree to, and that the action they took is a reminder that the Palestinians can, any time they wish to, apply for accession to the Rome Statute, which Israel clearly fears.

There’s a real irony in the Israeli and US reactions. Ethically, and as a way to take some sort of action, the Palestinian decision is beyond reproach. But strategically, the particular conventions they applied to could cause some problems for them. The fact is, the Palestinian Authority (PA), from its inception, has had major problems with human rights. As attorney Darryl Li explains, “Many of the human rights agreements Abbas signed have monitoring mechanisms whereby committees of experts monitor state compliance through periodically holding hearings and issuing reports.” Israel, which has never been concerned about hypocrisy, will no doubt use such reports to attack the PA while condemning the same bodies when they issue reports critical of themselves.

That aside, the real issue here is that the United States is criticizing and threatening the Palestinian Authority for signing conventions committing them to international law, protecting human and civil rights, and agreeing to diplomatic norms. At the same time, Israel reneges on its commitments to the US, expands settlements and threatens to withhold tax monies from the Palestinians that Israel is not legally entitled to control, and the US expresses mild displeasure but threatens absolutely no action in response.

All of us who have followed this conflict for any length of time have likely become jaded by the US double standard. That’s why it’s worthwhile to examine what’s happening when that double standard is this blatant. We need to remember how much of a problem it really is.