Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

 

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

 

 

Original: English

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

Before:

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

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

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Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

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

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

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

  • ·
  • ·
  • ···
  • ····
  • ·

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

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2/29

16 March 2020

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

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

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

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No. ICC-01/18 3/29

16 March 2020

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Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the four Geneva Conventions and their Additional Protocols.19

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

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

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

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

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

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

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

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

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

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

impunity for international crimes.25

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

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

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

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

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

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

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

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

30 Request, para 109.

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9.

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

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

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

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

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

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

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

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

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

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

38 Article 21(3), Rome Statute.

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

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

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

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

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

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

III. The Issue of Territorial Jurisdiction

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

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

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

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

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

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

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

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

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

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

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

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

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

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

57 Shaw, quoted in Request, fn. 608.

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

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

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

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

62 See Request, para 68.
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agreements is the exclusion of all Israelis in the occupied Palestinian territory from

Palestinian criminal jurisdiction.63

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

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

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

63 Ibid., para 70.

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

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

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

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

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

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

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

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

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

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

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or prosecuting such individuals for international crimes committed within the occupied

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

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

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

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

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

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

74 Wall Opinion, 88, 156.

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

76 See Kearney op cit, 34-35.

77 See Request, para 71.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resolutions of 29 November 1947 and 11 December 1948”.

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

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

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

1950).

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

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

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

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

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

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

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

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

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

102 Ibid., para 33.

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

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

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

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

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

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

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

109 Article 47, Fourth Geneva Convention.

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

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

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

allegiance” to the State of Israel.112

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

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

  1. Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.
  1. The Gaza Strip
  2. As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

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

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

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

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

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

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

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

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

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

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

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

120 Darcy and Reynolds, op cit, 243.
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effectively amounting to a “reployment” of military capabilities exercising control of land

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

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

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

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

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

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

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

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

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

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

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

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

133 Commission of Inquiry Report, para 759.

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

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

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

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

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

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

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

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
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  1. Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
  2. The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
  3. If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

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

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

Professor Richard Falk

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

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45 Responses to “Investigating Israeli Criminality at the International Criminal Court (ICC)”

  1. Rabbi Ira Youdovin April 2, 2020 at 12:21 pm #

    Something remarkable is happening in Israel. Driven by a shared realization that the Coronavirus makes no distinctions on the basis of race, religion, ethnicity or political affiliation, Jews and Palestinians are working together to fight it. The Palestinian Authority and Israeli government are coordinating their efforts on a daily basis, struggling to meet the needs of all victims—Jews, Muslims and Christians. This cooperation has received praise from the United Nations, and more importantly, from people on the ground. A recent public opinion poll found that 68% of Palestinians support the Palestinian Authority’s current cooperation with Israeli authorities. Some Israelis have voiced their gratitude on Twitter and television for the Palestinian Arab citizens who make up 17% of Israel’s doctors, a quarter of its nurses and nearly half its pharmacists. A call for volunteers in Jaffa, an ethnically mixed city with severe inter-communal tensions, brought out approximately a thousand responders representing the totality of its ethnic diversity.

    This comes on the heels of Israel’s national election in which 64.7 percent of Palestinian Israelis cast ballots of give a Joint List composed of four Palestinian parties fifteen seats in the 120-seat Knesset (parliament), the third largest total behind Likud and Blue and White. There has been serious talk about bringing the Joint List into the government and/or perhaps appointing one of its leaders to a ministerial position. This hasn’t happened as yet, and likely may not happen this time. But the fact that it’s been on the table reflects a changing Israeli attitude toward its Palestinian citizens, as well as a changing Palestinian attitude toward fuller participation in Israeli society.

    In other words, Israeli Jews and Palestinian Israelis are learning to get along with one another…some more than others, with substantial resistance on both sides. But things are changing. Last time I was in Jerusalem, I stayed in a hotel within walking distance of a friend’s home, especially if one took a shortcut through a public park. All of this geography is in the western part of the city, distant from Palestinian neighborhoods to the east. One day I was late for lunch in my friend’s home and in a hurry. But when I got to the park, entry was blocked by Israeli police officers so as not to disturb that a Palestinian wedding taking place inside.

    Yes, Israel’s Prime Minister repeatedly hurls anti-Palestinian remarks reeking of racism that are red meat for his base. And yes, the Knesset has enacted some draconian laws in recent years. And yes, PA president Abbas gives stipends to the widows and orphaned children of terrorists. And yes, some of the leaders of those parties in the Joint List say and sometimes do things that are deleterious to peaceful relations. One can go on and on citing negatives. But those Palestian doctors and nurses accredited to Israeli hospitals tell another story. And so does the fact that increasing numbers of Palestinian Israelis tell survey takers that they’re proud to be Israeli citizens. And perhaps most revealing was the angry reaction of Palestinian Israelis who constitute an overwhelming majority in the Triangle section of Lower Galilee when told that they might be included in an independent Palestinian state without having to leave their homes and jobs. They condemned the proposal as seeking to send them into exile. Their clear preference was to remain citizens of Israel.

    I raise this now as a reaction to your supporting and contributing to a case being brought against Israel at the ICC. Several times in the past, most notably after Rabin’s assassination at the hands of a Jew, progress toward ending the Israeli-Palestinian conflict was undermined by Palestinian suicide bombers. I’m not equating a case at the ICC with lethal terrorism, but its destructive impact on a possible pathway to peace could be the same.

    Who benefits from this exercise of lawfare? Certainly not the Palestinians who are making their way into Israeli society while not forsaking their Palestinian identity. Certainly not Palestinians on the West Bank and Gaza, who would assuredly benefit from growing Palestinian influence among Israeli decision makers. And assuredly not Palestinians living in refugee camps whose future does not lie with the imagined powers of a powerless United Nations to bring them back to houses inside Israel that no longer exist.

    We could endlessly debate the validity of charges being brought. But that’s not the point. As the Book of Ecclesiastes teaches: there’s a time for every purpose under Heaven. Now is not the time to disrupt the most promising signs of progress seen in years.

    Rabbi Ira Youdovin

    • Richard Falk April 3, 2020 at 1:40 am #

      Ira:

      As usual, I appreciate the thoughtfulness and in this comment, the hopefulness of your interpretations of
      developments pertaining to Israel’Palestine relations. Also as usual, we assign differing values to the unfolding
      of events. On the prospects for ‘peace’ I see the agreement of the main political parties in Israel, combined with
      Gantz/Netanyahu unity and joint acceptance of the Trump/Kushner proposals, as de facto embrace of an Israeli/Zionist
      one-state solution. In this context, for Israeli Palestinians, differences in standards of living and overall infrastructure
      may make living in Israel more palatable that living under the PA or occupation. Beyond this, the moves toward further
      annexation seem much more important than these gestures of cooperation in the midst of a health crisis. A sustainable
      peace will only arise when Israel let’s go of its apartheid approach to fragmenting the Palestinian people and repressing
      even expressions of largely nonviolent resistance; as long as Israel practices hegemonic control over Palestinians there
      will be resistance, and as long as there will be resistance apartheid structures (although different than those in South
      Africa will remain), including denials of Palestinian rights of repatriation to refugees, and all sorts of inequalities
      present in Israeli nationality laws and the Basic Law. What you call ‘lawfare’ with derogatory implications I call ‘law’ with positive
      implications. Why should not Israeli policies and practices be tested by relevant international criminal standards? Because
      Israel sets the rules, a nonviolent challenge by way of legal procedures should be welcomed not condemned? During the Oslo
      Diplomacy, the Palestinian negotiators were constantly advised by American officials not to object to settlement expansion
      by invoking the Geneva Conventions because.’it would disrupt the peace process,’ and such issues should be deferred until
      ‘final status’ negotiations, which never came, and were never intended to come. Until Israel is willing to accept the equality
      of Palestinians there will be no peace, although Palestinians in Israel and even in refugee camps, especially women, will try
      to make life a bit better for their families and children. At this point, by law and prevailing mentally, Israel is overwhelmingly
      wedded to inequality and reliance on hegemonic structures to sustain it. If this is so, nonviolent resistance, whether via BDS or
      ICC, are ways of exposing both the Palestinian ordeal and Israeli lawlessness.

      Richard

    • Sean Breathnach April 3, 2020 at 3:41 pm #

      “In other words, Israeli Jews and Palestinian Israelis are learning to get along with one another…some more than others, with substantial resistance on both sides.”

      That may be the case but in the West Bank and Gaza it is a completely different scenario. The case been taken in the ICC against Israel, is mainly to do with Israeli war crimes in the West Bank and Gaza.

      “According to B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) over the last decade, approximately three-thousand five hundred Palestinians have lost their lives to the Israeli armed forces or paramilitary settler violence. Among those killed have been seven-hundred eighty two minors and three-hundred thirty eight women. According to a data base maintained by Israel-Palestine Timeline, since 2000, approximately 10,000 Palestinians have been killed by Israel… including 2,172 children. Another 100,000 have been injured.

      Over the last year, much of the world has watched fixated on the Great Return March in which Israeli snipers have murdered more than 300 Palestinian demonstrators on the eastern edge of Gaza. Another 30,000 have been injured by gunshots or teargas. Nearly 60 of those killed and 7,000 of those injured have been children. Hundreds, including children, have had their limbs amputated as a result of being shot with ammunition designed to tear apart limbs.”

      Let the ICC, based on the evidence put before it, decide if war crimes have been committed.

      • Rabbi Ira Youdovin April 4, 2020 at 8:13 am #

        I understand Sean Breathnach’s point. But I have a question for him and also for Prof. Falk: As a hypothetical exercise, what happens if the ICC finds Israel guilty on all counts? How does that contribute to resolving the conflict in a way that opens a better future for the Palestinian people?

      • Richard Falk April 4, 2020 at 9:03 am #

        Until Israel decides to give up ambitions in the WB and the whole of Jerusalem, and accepts some version of
        a right of return for Palestinians (who now need more than Jews), there are good gesture here and there but
        within an essential ideological and behavioral structure of apartheid. The law-oriented hope is admittedly a. forlorn
        long-shot, a sufficient discrediting of Israeli policies and practices to create a recalculation of interests
        and alternatives. The South African political class did not have a change of heart when they decided to release
        Mandela and dismantle apartheid, they made a new calculation. As long as Trump is President it is utterly foolish
        to expect Palestine to work toward some sort of agreed solution. The leadership in Israel & US have accepted, more or
        less, the outlook of Daniel Pipes–diplomacy was tried and failed, now is the time to shift to an imposed solution, and
        the challenge is to make the Palestinian leadership understand that their political ambitions are a lost cause, and the
        best they can hope for is improved living standards. Of courses, Israel is not South Africa, and a. Mandela is not available
        to chart the course to a compromise based on the fundamental recognition of the equality of the two peoples.

      • Sean Breathnach April 4, 2020 at 4:29 pm #

        “I understand Sean Breathnach’s point. But I have a question for him and also for Prof. Falk: As a hypothetical exercise, what happens if the ICC finds Israel guilty on all counts? How does that contribute to resolving the conflict in a way that opens a better future for the Palestinian people?”

        Israel consistently puts the blame on Palestinians for the continuing conflict. If the ICC does find Israel guilty of war crimes, hopefully it will put more pressure on Israel to stop breaking international law and offer to start a genuine peace process, which previously they have never done. Any country who commits war crimes must be held accountable for their actions, Israel should not be the exception.

  2. Rabbi Ira Youdovin April 7, 2020 at 10:54 am #

    I want to thank Prof. Falk and Sean Breathnach for their thoughtful responses which facilitate a reasoned conversation among people having a diversity of perspective on Israel-Palestine. In this spirit, I’ll endeavor to address both of them in this post.

    Prof. Falk writes: “The law-oriented hope is admittedly a forlorn
    long-shot…” , which leads me to once again ask, where’s the wisdom of launching an initiative you know will fail? There are times when there’s no alternative to trying a Hail Mary pass. But this is not one of them.

    Which brings us Sean Breathnach’s assessment that Israel has never offered the Palestinians a reasonable pathway to peace. The historical record shows this to be incorrect. Israel accepted the UN’s 1947 Partition Plan which would have created an independent Palestinian state larger that the area currently being contested. The Palestinians rejected it and started a war which they, together with invading armies from five Arab states, lost. During the ensuing negotiations, Israel offered to withdraw to the lines drawn in the Partition plan in exchange for mutual recognition and normalization. The Arabs turned thumbs down, and gave the West Bank to Jordan and Gaza to Egypt.

    Immediately following the 1967 War, Israel offered to return all the newly occupied territory except Jerusalem in exchange for piece. Several months later, the Arab leaders gathered for their summit in Khartoum issued its infamous “3 No’s” decree: no negotiations with Israel, no recognition of Israel, no peace with Israel. (Jerusalem was excluded because the Arabs had barred Jews access to their holy sites, including the Western Wall of Solomon’s temple, which had never before been closed to Jewish worshippers.)

    In 2008, Israeli prime minister Ehud Olmert offered a sweeping peace proposal which would have given the Palestinians as much as 95 percent of the Occupied Territory, the eastern part of Jerusalem, and other concessions. This, too was rejected.

    The dominant thread in this tapestry of nay-saying is Palestinian refusal to accept Israel which drives a persistent impulse to make Israel disappear. To be sure, there are exceptions among the Palestinians and their number is growing. An astonishing number of Palestinians tell pollsters that they are proud to be Isaeli citizens. But thus far, the balance has leaned toward the rejectionists. Where war and terrorism failed, the Arabs turn to lawfare in a relentless effort dating back to the British Mandate era and even before.

    Prof. Falk describes the current Palestinian initiative as endeavoring to create a “sufficient discrediting of Israeli policies and practices to create a recalculation of interests and alternatives.” I’ll get to that in a moment, but first want to suggest that forcing a recalculation of interests and alternatives should be directed at the Palestinians. The century-long military and juridical campaign to first prevent and then destroy Israel has failed. It didn’t work when expressed in appeals to a succession of commissions during the Mandate period and to the UN. It isn’t working now and has little hope of succeeding in the future. Meanwhile, the Palestinians continue to lose time and lose ground, both figuratively and literally.

    Prof. Falk characterizes the Israeli mindset in these words: “Diplomacy was tried and failed, now is the time to shift to an imposed solution, and the challenge is to make the Palestinian leadership understand that their political ambitions are a lost cause, and the best they can hope for is improved living standards.” This is fairly accurate, but by linking it to American Prof. Daniel Pipes, a right wing extremist, he unfairly paints it as an extremist anti-Palestinian view. It is not. To the contrary, it’s a fully understandable consequence of the way Palestinian leaders have acted for more than a century. More than anything else, it is a reflection of fatigue. Diplomacy has failed. Palestinian intransigence has discredited a once vibrant and powerful force in Israeli society that sought peaceful co-existence in the context of a two-state solution, leaving the field open to proponents of Greater Israel expansionism on the ground, and racism in the public square.

    A Palestinian recalculation of objectives and tactics might yield an appreciation of their own culpability in this nightmare. The Israeli center and center-left, which at one time dominated Israeli the political culture continues to call for diplomacy. But with whom can Israel or anyone negotiate when the Palestinian body politic is fractured into competing voices with vastly differing goals? The PA is prepared to recognize Israel, and is already working with Israel on security issues. Hamas persists in its rejectionism, and persists in threatening Israel with a stockpile of rockets provided by Iran. Should Hamas leaders soften their position, even a little bit, Islamic Jihad would escalate its terrorism to disrupt the peace process. The real game changer will come if and when the Palestinians develop a consensus position that recognizes Israel and then goes on to demand whatever concessions they seek. They won’t get all of them, but their initiative would re-activate the masses of Israelis who oppose annexation and would be eager to push back against the religious nationalists who they fear are turning their state into something it was never meant to be.

    Prof. Falk is correct in saying that the Netanyahu-Trump partnership, as well as some very disturbing xenophobic tendencies in the Knesset, make this an unlikely time for advancing the peace process. My point in questioning an initiative in the ICC is not that it would preclude a peace process which is not currently operating, but that it would impair the chances of re-starting one, this time in an environment that may be more conducive to progress than in prior times.

    There’s much more evidence to present, but this post is already overly long. I’ll close by again thanking Prof. Falk and Sean Breathnach for their thoughtful posts and adding one final thought: I want to be perfectly clear that my citing Palestinian culpability for their role in the impasse is not playing the blame game. There’s much about Israel’s role that warrants harsh criticism, but I’ll leave that to Prof. Falk and those who share his views. I cite errors, misdeeds, misstatements and flawed policies not to cast blame but because understanding failures on both sides of the conflict is the only way to move toward reconciliation. This is already happening, albeit slowly. Palestinian-Israeli cooperation in combating coronavirus may prove to be an important step in the right direction.

    The rise of Palestinian status in Israeli society is not a matter of Israel granting “favors”, as Prof. Falk disparages it. It’s the result of two very different peoples learning to live together in a space they both claim. Resorting to the ICC would have the same negative impact as would happened when one of the two parties seeking reconciliation sues the other in court. It’s a road is best not taken

    Rabbi Ira Youdovin

    • Richard Falk April 8, 2020 at 3:29 am #

      Rabbi Youdovin:

      Once more you advance your interpretations of the situation with clarity, conviction, and familiarity.
      On the basis of our genuine effort to have a meaningful dialogue, or even a useful debate, we fall short,
      I believe, for one principal reason: you insist on treating Israeli Jews and Palestinian Arabs as living
      side by side in a condition of conceptual equality, therefore holding both sides more or less equally accountable
      for the impasse that has blocked peace; in contrast, I regard the two sides as unequal to such an extent that
      it places the primary burdens for the suffering of the Palestine people initially on the Zionist Movement and since
      1948 on the State of Israel. From this perspective, it was reasonable to refuse a partition proposal that lacked the
      consent of the resident majority population and derived from a colonialist pledge made back in 1917 when the Jewish
      population of Palestine was in the neighborhood of 8%. Further, the Israeli fragmenting of the Palestinian people
      for purposes of control is based on systematic inequality as acknowledged by the Basic Law of 2018, and in my view
      has the features of an apartheid regime, which blocks any move toward sustainable peace. The analogy to South Africa
      is helpful–only when the leadership changed its mind was it possible to produce racial peace between blacks and whites.

      I would welcome your comments on the relevance of inequality to our respective modes of understanding and advocacy.

      • Rabbi Ira Youdovin April 10, 2020 at 12:06 pm #

        Richard,

        Thank you for thoughtfully framing our conversation and posing a precise question which facilitates its continuation.

        I do not think of Palestinians and Israelis as having equal responsibility for the impasse. Quantifying guilt inevitably leads to the blame game with both sides having ample ammunition to hurl at one another. To what purpose? Who judges the game and how does it impact facts on the ground? Does each point scored translate into a dunam of land conceded or not conceded? One refugee allowed to return or not? In my experience, real life doesn’t work that way.

        What I’ve said is that Israelis and Palestinians have a shared responsibility for the impasse. The conflict is transactional. For example, Arab rejection of Israel’s offer to return the entire West Bank after the 1967 war in exchange for peace created a political vacuum which was exploited by a newly emerging Israeli right wing advocating the new concept of building a Greater Israel. In turn, the brutality of Israeli occupation strengthened the influence of forces within the Palestinian community who advocate eliminating Israel by any means available. This, in turn, strengthened the hand of Israelis who advocate annexation and suppression. So it goes.

        The transactional nature of the conflict receives little or no attention in your analysis. Your core thesis, which apparently obviates any analysis of the Palestinians’ role other than being blameless victims, is that Zionism has always sought to establish a Jewish state of divinely ordained dimensions so that everything that happens, on both sides, is a consequence of Israeli determination to complete this agenda. This thesis runs contrary to the historical record. Zionism is a sometimes confusing amalgamation of differing perspectives and objectives that coexisted within the movement from its very inception in the late 19th century. Theodor Herzl, an assimilated Viennese Jew whose primary motivation was rescuing Jews from European anti-Semitism, once flirted with the notion of establishing a Jewish state in what is now Uganda. He was outvoted by a large majority who believed that the Jewish people’s historic ties to Palestine made Palestine essential. In the 1930’s Z’ev Jabotinsky wanted to set Israel’s borders on both sides of the Jordan. The World Zionist Organization rejected the notion and Jabotinsky left the movement.

        This is not to suggest that the Bible wasn’t on the minds of Zionist activists. It assuredly was. But their attachment was historical not religious (Ben Gurion was a prime example of this.) Most of the Orthodox and ultra-Orthodox Jews who accepted biblical writ as binding rejected Zionism as usurping a role God had intended for the Messiah.

        Nor was there anything approaching unanimity in making independent statehood the movement’s objective. Both Ben Gurion and Chaim Weizmann told the Peel Commission that they hoped Britain would continue its mandate after partition so that the Jewish entity that emerged would be a member of British commonwealth. Sentiment didn’t swing decisively toward statehood until 1942, after the British had cut off Jewish immigration, condemning masses of European Jews to Nazi extermination while the rest of the world, including the United States, did nothing to help them. This convinced the Zionist that they had to become masters of their own destiny.

        The list of cause-effect-cause, etc. episodes is too long to even begin recounting here. One example will have to suffice: the current situation. There are a significant number of Israelis who oppose annexation for a variety of reasons whose position is undermined by the fragmentation of Palestinian leadership which leaves nobody able to negotiate an agreement that can stand against internal pressure. This strengthens the hand of Israeli hawks who argue that there’s no partner for peace among the Palestinians, which in turn, strengthens Palestinian rejectionists. This dynamic explains the Blue and White party’s unexpected embrace of the Trump plan: why risk offending the world’s most powerful leader when there’s no possibility under current circumstances for progress toward negotiating peace.

        N.B. Explaining why something happens does not necessarily justify it. I very much like your idea of fostering a new calculation. But that objective must be undertaken by Palestinians and Israelis alike. Unless the Palestinians develop a workable consensus abandoning their determination to reverse the nakba by eliminating Israel as a Jewish ethnocity, progress toward a resolution of conflict, which must entail reconciliation, is impossible.

        I have the utmost respect for the ICC. During my years in Chicago, Cherif Bassiouni (of blessed memory) and I became good friends. He invited me to be part of a small group accompanying him of a sentimental trip to Egypt following his wife’s death. I spent hours sitting with him on one of those Agatha Christie style boats cruising up (or was it down?) the Nile listening to him talk about the ICC, making me a true believer. But the ICC is not a one-size-fits-all thing. There are times when resorting to the Court are counter-productive for the plaintiffs. In this case, going to the ICC continues a Palestinian pattern of looking to outsiders to achieve gains that they, themselves, could very well achieve with a new calculation. That tactic dates back to the early years of the Mandate beginning with the Shaw, Lofgren and Peel Commissions, and continuing after partition with numerous appeals at the UN. Chances are that the ICC gambit, like its predecessors, will serve only to delay a new calculation that could produce a better future their people.

        Richard, I close with a question or two for you. What are the chances of the Palestinians uniting to the extent of being able to bring a consensus position to the negotiating table?

        Ira

      • Richard Falk April 11, 2020 at 3:50 am #

        Ira:

        I write conscious of this holiday moment, and it makes me consider my identity as a Jew with
        ecumenical leanings that incline me toward opposition toward hegemonic state/society arrangements
        and sympathy with those so victimized. From this background, I write about the Israel/Paalestine
        relations, and realize that our different points of departure lead us to dwell on different aspects
        of the conflict, as well as to adopt views that strike each other as highly partisan.

        In this spirit, I do not feel that you answered my underlying question, which I can put in the form
        of an assertion that you might find dogmatic, but for me it is integral to progress toward genuine peace:
        peace will come to Israelis and Palestinians only when Israeli leadership is persuaded, coerced to
        abandon current apartheid structures of control and fragmentation. In my view, negotiations are a dead
        end so long as Israel on the basis of this fundamental multi-dimensional foundation of inequality, especially
        as reinforced by the US as geopolitical partner and faux intermediary. I regard these flaws as dooming past
        negotiations.

        At the same time, I am not lauding Palestinian failures–to develop their own proposals, to establish sufficient
        unity to create credibility as legitimately representing the Palestinian people as a whole including refugees and
        exiles. As you must know, these flaws of Palestinian leadership were often encouraged by Israel, including even
        the assassination of moderate voices. Overcoming these flaws would not make any difference so long as Israel regards
        its security and political project bound up with retaining its structures of domination.

        Also, I believe the tactical brilliance of the Zionist Movement, almost from the beginning, was a kind of situational
        opportunism–take what is available without losing sight of the overriding goal of recovering ‘the promised land,’ if
        not in its entirely, at least mostly, while neutering any Palestinian remnant via border control and demilitarization,
        the model of control evolved since 2005 for Gaza under the banner of ‘disengagement.’

        I think one can learn a lot by the apartheid struggle in South Africa, which only made progress after making use of external
        means of pressure including 4 separate appeals to the World Court, BDS, and the UN Campaign Against Apartheid. Of course, the
        Africans made made many mistakes in mounting their struggle, and also had deep divisions, and were frequently told by apologists
        for the regime that blacks in South Africa were better off than in most other parts of Africa, and from some points of view
        this was true.

        A final point, the remarkable perseverance of Zionism in establishing Israel at a time of collapsing colonialism meant that the
        natives would not be quiet, would resist by all means, which would produce repression by all means. In my view, this is the essence
        of what has happened over the course of a century.

        I know that this way of seeing will not convince you, but perhaps it will help you understand our differences. To
        me, asking the Palestinians to negotiate under present conditions is a death warrant, but seeking validation of their
        grievances is a nonviolent assertion of continuing resistance. Your question to me at the end can be answered in
        two ways: first of all, Israel does not want Palestinian unity, and had taken and will take all means to prevent it.
        and secondly, if somehow unity was achieved, negotiations would produce another failure blamed on the Palestinians,
        as the Israeli political consensus it aligned with Trump in proposing what amounts to an Israeli one-state ‘solution.’

        Again, I appreciate your care and thoughtfulness in preparing such detailed explanations of your views. I know my
        ‘stubbornness’ must be a disappointment.

        Respectfully, Richard

    • Sean Breathnach April 11, 2020 at 2:46 pm #

      “Which brings us Sean Breathnach’s assessment that Israel has never offered the Palestinians a reasonable pathway to peace. The historical record shows this to be incorrect. Israel accepted the UN’s 1947 Partition Plan which would have created an independent Palestinian state larger that the area currently being contested. The Palestinians rejected it and started a war which they, together with invading armies from five Arab states, lost. During the ensuing negotiations, Israel offered to withdraw to the lines drawn in the Partition plan in exchange for mutual recognition and normalization. The Arabs turned thumbs down, and gave the West Bank to Jordan and Gaza to Egypt.”

      Professor Falk in his reply has given the reason for the rejection of the 1947 Partition Plan and so I will not elaborate.

      “Immediately following the 1967 War, Israel offered to return all the newly occupied territory except Jerusalem in exchange for piece. Several months later, the Arab leaders gathered for their summit in Khartoum issued its infamous “3 No’s” decree: no negotiations with Israel, no recognition of Israel, no peace with Israel. (Jerusalem was excluded because the Arabs had barred Jews access to their holy sites, including the Western Wall of Solomon’s temple, which had never before been closed to Jewish worshippers.)”

      In Henry Siegman’s article in the London review of books ‘Grab more hills, expand the territory’.

      “He states that the story that Israel offered to return all the newly occupied territory, is a lie. Israel’s military and political leaders never had any intention of returning the West Bank and Gaza to their Arab residents. The cabinet’s offer to withdraw from Arab land was addressed specifically to Egypt and Syria, not to Jordan or the Palestinians in the territories. The cabinet’s formal resolution to return the Sinai and the Golan in June 1967 said nothing about the West Bank, and referred to Gaza as ‘fully within the territory of the state of Israel’. With only a murmur of dissent, the cabinet, led by Yigal Allon and Moshe Dayan, and the then prime minister, Levi Eshkol, committed itself to policies that would allow only local forms of autonomy in the West Bank and Gaza, an arrangement they believed would in time allow them to establish the Jordan River as not only Israel’s security border but as its internationally recognised political border as well.”

      “The decision to retain control of the territories was taken days after the end of the 1967 war, and was not a response to Palestinian terrorism, or even to Palestinian rejection of Israel’s legitimacy. Zerdal and Eldar cite a report by Mossad officials, prepared at the request of the IDF’s intelligence division and presented to the IDF on 14 June 1967, which found that ‘the vast majority of West Bank leaders, including the most extreme among them, are prepared at this time to reach a permanent peace agreement’ on the basis of ‘an independent existence of Palestine’ without an army. The report was marked top secret, and buried.

      “In 2008, Israeli prime minister Ehud Olmert offered a sweeping peace proposal which would have given the Palestinians as much as 95 percent of the Occupied Territory, the eastern part of Jerusalem, and other concessions. This, too was rejected.”

      I don’t know enough about the 2008 peace offer to make a comment at this time.

      • Rabbi Ira Youdovin April 13, 2020 at 9:59 am #

        Sean Breathnach is correct in noting that Israel’s 1967 offer to return lands taken in the Six Day War was made to Egypt and Syria, omitting Jordan. I accept responsibility for my error, and thank Sean Breathnach for pointing it out. This being said, I take issue with the conclusions drawn by the two sources cited: Zerdal and Eldar in their 2007 book “Lords of the Land”, and Seigman in his review of the book in London Review of Books:

        “The decision to retain control of the territories was taken days after the end of the 1967 war, and was not a response to Palestinian terrorism, or even to Palestinian rejection of Israel’s legitimacy. Zerdal and Eldar cite a report by Mossad officials, prepared at the request of the IDF’s intelligence division and presented to the IDF on 14 June 1967, which found that ‘the vast majority of West Bank leaders, including the most extreme among them, are prepared at this time to reach a permanent peace agreement’ on the basis of ‘an independent existence of Palestine’ without an army. The report was marked top secret, and buried.”

        It defies credulity to claim that security issues had no role in determining Israeli policy in the immediate aftermath of the Six Day War, which many Israelis feared would lead to their annihilation. To the contrary, security was foremost in the minds of its post-war planners. Regarding Jordan, while it’s certainly possible that West Bank leaders were prepared to make peace, fact is that they didn’t control the situation. Beginning in the late 1960’s the PLO had been using Jordan as a base for staging terrorist attacks inside Israel. Because the Jordanian government was unwilling—or unable or both!—to stop them, Israel needed to create a buffer zone along its entire border with Jordan. (n.b. When the Jordanian government finally moved to interdict the terrorists in the early 1970’s, the PLO launched a civil war which Jordan narrowly won and drove them out.)

        What Israeli leaders actually intended for the West Bank is best ascertained by examining what they did in real time. In 1968, the government adopted a plan which bears the name of its developer, Yigal Allon, a cabinet minister and hero of the 1948 war. It called for an establishing an Israeli presence along the Jordanian border, thus avoiding areas of dense Palestinian population in the center of the West Bank, thus achieving some measure of protection against attack from the outside while leaving the indigenous Palestinians free to live their lives as they wished to.

        I worked with Yigal Allon in the mid-1970’s and gained some insights into his thinking. He lived on a kibbutz amid Palestinian villages in the Galilee, spoke fluent Arabic and counted many Arabs among his friends. His thinking in proposing the plan was that Palestinian autonomy in a geographically contiguous area with a wide corridor connecting to Jerusalem would evolve into an independent Palestinian state encompassing most of the West Bank. This hope lasted for some years before the rise of a Messianic settlement movement following the 1973 Yom Kippur War. This story is best told by Gershom Gorenberg in his book, “Accidental Empire” and Yossi Klein Halevy in his book, “Like Dreamers”. The Zerdal and Eldar book, “Lords of the Land” is well researched and worth reading, although I disagree with its slant and many of its conclusions.

        Rabbi Ira Youdovin

      • Sean Breathnach April 14, 2020 at 6:06 am #

        Rabbi Youdovin:
        Rabbi Youdovin:

        I would like to thank you for contributing to a civil debate on the Israel/Palestine conflict.

        I would like to invite you to read an article by Yarden Katz (link below) or even look at the video of a panel that took place in December 2018 in Tel Aviv, in Hebrew, for an audience of mostly Israeli Jews. The panel’s title was “Do Good Fences Make Good Neighbors?” – or as some panelists bluntly put it, are “divorce” and “separation” the appropriate metaphors for thinking about the future of Israel-Palestine? The panelists were Yael Barda, a sociologist and activist from Hebrew University, Jafar Farah, a Palestinian civil rights activist and founder of Mossawa center, and Shaqued Morag, Executive Director of the Israeli NGO Peace Now. The moderator was Israeli journalist Meron Rapaport.

        The discussion lasted nearly two hours and touched on many issues, but one exchange in particular stood out. At one point, an Israeli man in the audience made a comment that’s familiar from dominant discourses on Israel-Palestine. The man’s narrative – about Palestinians rejecting the U.N. Partition Plan, and Jews’ right to the land based on a two-thousand-year history – represents a generic Zionist Israeli perspective.
        Jafar Farah, the only Palestinian panelist, delivered a piercing, comprehensive, and inspiring response.

        I was struck by Jafar Farah’s honesty and willingness to offer the hand of friendship to Israelis in spite of how Palestinians have been treated for over 70 years.

        https://mondoweiss.net/2019/08/stole-people-willing/

  3. Rabbi Ira Youdovin April 14, 2020 at 11:28 am #

    Richard,

    Once again I thank you for taking time to continue this conversation.

    Obviously, I disagree with much of your narrative, as you disagree with much of mine. For that reason, I won’t proceed with a point-by-point refutation, which produces only frustration and sometimes anger. We can co-exist peacefully, each of us with his own truth. Besides, while the past may be prologue, it is the past which doesn’t change no matter how many versions are proposed. Instead, I want to focus on the present and future, which are still in the making.

    You wrote, “[P]eace will come to Israelis and Palestinians only when Israeli leadership is persuaded, coerced to abandon current apartheid structures of control and fragmentation.” What does that mean? One possible reading is that peace will come only if Israel stops being Israel. In your sweeping definition of apartheid, a Jewish ethnocity is an apartheid structure no matter how well it facilitates integration of its Palestinian citizens. If that’s the case, we really have nothing to talk about. My objective is improving Israel, not eliminating it.

    If, on the other hand, you seek a resolution of conflict that enables the Palestinians to achieve the core aspirations in the context of peaceful co-existence with and in the Jewish state of Israel, it’s fair to ask whether going to the ICC at this time is the best way for pursuing this objective.

    Our neighbor and my friend Steven E. Zipperstein has recently published an academic study entitled “Law and the Arab-Israeli Conflict”. In it, he traces a pattern of Arab attempts to achieve—in appeals to a series of British commissions, the UN and ICJ and even the Israeli High (aka Supreme) Court– what they were unable to achieve on the ground, largely through terrorism. Attorneys representing the Arabs often repeated (almost verbatim) arguments first presented in the early 1920’s by Haj Amin Al-Husseini, Grand Mufti of Jerusalem, and attorney Ani Bey Abdul Hadi. Resort to the ICC would continue this pattern, likely with the same result of doing nothing to further the Palestinian cause.

    Another constant in this history is that appeals to outsiders has served to shield Arab leaders from the onerous task of re-evaluating their objectives and tactics, which has caused them to miss or reject opportunities for peace. You write: “[Israel’s] overcoming these flaws would not make any difference so long as Israel regards its security and political project bound up with retaining its structures of domination.” I agree insofar as the statement means that Israel must change its attitude toward the Palestinians (which is already in progress) and also its behavior, especially in the West Bank, Gaza and East Jerusalem. (The refugee issue is of a different nature which would take too long to discuss.)

    But missing from your assertion is recognition that the conflict is transactional so that modification on one side is contingent on modification on the other. To be specific: Israel’s loosening its grip on Gaza is impossible so long as Hamas maintains its stated intentions to destroy Israel and stockpiles thousands of Iranian built missiles to do the job. The same can be said about Israeli withdrawal from enough of the West Bank to accommodate an independent Palestinian state. That’s why I believe that quantifying blame is misleading, especially when the calculation is based on military might. That calculation might have reasonable for millennia. But we’re now in an age of asymmetrical warfare where terrorism can punch well above its weight.

    I appreciate that I’m ignoring many relevant items. But this post has gone on long enough, so I’ll leave them to another day. However, one point needs to be made in closing: your thesis, indeed the entire Palestinian narrative, is based on the misconception that Zionism, from its very outset, has sought to establish a Jewish (more or less) theocracy of a dimension ordained by God and reported in the Hebrew Bible. That was not true in 1882 or 1898 or 1917 or 1947 or 1967 or 2020. I’m interested in seeing your evidence for drawing this conclusion.

    Has COVID19 invaded Turkey? If so, stay inside and stay safe.

    L’Shalom,

    Ira

    • Richard Falk April 15, 2020 at 9:05 am #

      Ira:

      Once again you have thoughtfully raised a series of key issues in a non-polemical way
      that invitees dialogue, although as you suggest we disagree on how to understand the interaction
      of the two peoples. Let me concentrate on just of a couple of points.

      I don’t feel you come to terms with the degree to which the imperatives of Israeli security induced the construction of
      a sophisticated form of apartheid that was premised on the need to dispossess Palestinians to solve the demographic problem
      (of being Jewish and democratic), to complete the acquisition of ‘the promised land’ (Jerusalem,Judea/Samaria), while coping
      with inevitable resistance to the basic Zionist project of establishing a Jewish homeland in what had been the Palestinian homeland.
      The importance of the historical/biblical claim of Israeli legitimacy is to sidestep basic post-WW II international law & morality reliance on
      the logic of self-determination. An imposed partition arrangement was a flagrant refusal to respect Palestinian rights of self-determination
      as no effort was made to assess the views of the majority resident population even after the end of the British mandate. Against this background
      the two sides had opposite justifications for their claims, and neither side was able to prevail altogether, although the Zionist side managed to
      get the upper hand, but not without facing a permanent challenge of Palestinian resistance and global solidarity based on the perception that
      the native population was being subjugated and denied basic rights. Such inequality was accentuated by the unlimited Jewish right of return and the denial of any comparable right to non-Jews, remembering that when the Zionist project got its big international push by the Balfour Declaration the Jewish population was no more than 8%. Given the further perception of Jewish settlement as primarily European, it was inevitable that there would
      be violent resistance, and that to achieve success superior force would have to be used to keep control. In essence, I am arguing that apartheid is
      a necessity given Zionist goals, but that its existence entails gross inequality on all dimensions of collective existence premised on ethnic identity, and this makes the relations between the peoples non-transactional and based on force and counter-force. Any effort to impose a solution given these
      realities is bound to be challenged by the underdog, and because of this expectation, the dominant side will reasonably insist on one-sided security guarantees, which will make the challenge inevitable, without end. This is where the South Africa experience is relevant–peace could not come so long as apartheid was the basis of political order, but once dismantled peace could emerge on the basis of ethnic equality. So long as Israel maintains a structure of domination, which must be maintained if it insists on the exclusive rights of the Jewish people to self-determination, the only alternatives for the Palestinians is surrender, resist forcibly, or have recourse to delegitimizing tactics (the logic of the ICC case).

      Let me end on a personal note. I cannot reconcile the Zionist project with my ethical beliefs, at least as it has played out, although I understand its strong impetus based on the history of anti-Semitism, and the rise of Fascism, but to the extent that its realization required the dispossession and subjugation of another people in a foreign country (despite the continuous Jewish connections) it seems to embrace contractions that require war not accommodation. A political compromise would be possible, including two homelands for two peoples, but within one state, combined with a liberal non-ethnic immigration policy that was based on a right of asylum administered without ethnic bias. Can you imagine such a curtailed Zionist agenda? I can imagine a Palestinian embrace of such an approach.

      We have a fairly strong dose of the pandemic here in Turkey, but so far our village is relaxed, andd we have been careful and okay, and hope the same goes for you and loved ones in. SB.

      Greetings from Yalikavak,

      Richard

      • Rabbi Ira Youdovin April 18, 2020 at 5:01 am #

        Richard,

        I thank you once again for continuing our conversation. Although we’re unlikely to reach agreement on anything significant, exchanging views with cordiality and mutual respect is a most welcome development.

        While I appreciate that your opposition to Zionism is rooted in what you see as its incompatibility with your ethical standards, I believe your perception of Zionism is flawed and question your methodology in reaching conclusions about the conflict. You say that early Zionist activity in Palestine made armed resistance “inevitable”. I employ the same approach in saying that Arab refusal to accept Israeli offers to return land captured in the 1967 War created a geographical and political vacuum on the West Bank that made Israeli expansionism “inevitable”. Both of us are right. Both of us are wrong.

        Many things in life are inevitable. If you’re out skiing and get caught in an unexpected avalanche, it’s inevitable that you’ll be covered by masses of snow and may be suffocated to death. But the Palestinians were not compelled to wage armed conflict against the Jewish newcomers. They chose violence. And the Israelis were not compelled to build West Bank settlements. It, too, was a matter of choice. In both instances, and many others like them, there were other options that would have made for a better future.

        I make this point not to play word games but to raise an issue that has ethical and pragmatic repercussions. Central to the Palestinian narrative is a view of themselves as being helpless victims of European colonialism and Zionist imperialism. This mindset, which has persisted for more than a century, impairs their ability and/or willingness to make an honest assessment of themselves, and make course corrections that put them on a pathway toward attaining reachable goals. Instead, they have reached out to external actors to deliver favorable outcomes that their negative self-perception renders them incapable of achieving for themselves. Resort to the ICC perpetuates an unfortunate history that dates back` to the Shaw Commission (1929).

        If you will permit a personal reference, your persistent reference to the Balfour Declaration illustrates this pattern. Yes, Britain made a unilateral commitment without consulting the indigenous Arab population at a time when Zionist pioneers were a very small minority in Palestine, and perhaps in violation of an earlier pledge to an Arab sheik based in Damascus that may or may not have included Palestine. But that was more than a century ago. In the ensuing years, the legitimacy of a Jewish national presence in Palestine has been affirmed and reaffirmed by a series of British commission during the mandate period (Shaw, Lofgren and Peel, among others), and by international forums (San Remo, Versailles) and bodies (League of Nations and United Nations). On these occasions, the Palestinian case was well represented by very competent advocates, including the Grand Mufti of Jerusalem Amin al-Husseini. At this late date, challenging the Balour Declaration’s legitimacy draws attention from the primary challenge of creating a peaceful co-existence between Palestinians and Jews.

        In this regard, I believe your proposal of a bi-national state, while well intentioned, is unworkable. I say this without reference to ideological considerations, which are daunting, but rather to the pragmatic impossibility of a successful marriage uniting two parties whose mutual hostility and suspicion of the other’s motives precludes their agreeing on terms for a divorce. How does one go about creating a single legal systems from two very different ones, etc.? The bloody record of mash-ups carved from the cadaver of the Ottoman Empire should ring the alarm bells. Moreover, one state encompassing two homelands describes a federal system. It took the founders of the United States thirteen years to move from the Declaration of Independence to a Constitution…and these were men who had fought side-by-side against the British. A new bi-national state would not survive its formative years in a neighborhood filled with hungry predators.

        You have asked me to consider the feasibility of a bi-national state. I now ask you to do the same in regard to a slight modification of your proposal. How about two independent states united in some sort of a regional arrangement (something like Benelux) with the possibility of including Jordan. Each participant would be a sovereign state with its own laws, traditions, anthem, flag, etc. The regional grouping would address shared concerns including defense and refugees. I believe many Israelis would support the concept. What about the Palestinians?

        Stay safe,

        Ira

      • Richard Falk April 18, 2020 at 10:45 am #

        Ira:

        It is encouraging to me that we have elevated our conversation to a higher level. Being able to
        respect the otherness of perceptions and experience is a step toward possible accommodation even
        in the most intractable situations.

        I understand your sense that Zionism can be reasonably construed in ways different than my understanding,
        but I remain unconvinced that if the Palestinians had accepted the partition proposal put forward by the
        UN that would have been the end of the Zionist project. I believe the weight of evidence is that Zionism
        was determined to have sovereign control over Jerusalem and was, at best, divided as to the disposition of
        the West Bank, and its inclusion in the vision of ‘the promised land.’ The other fundamental Zionist dilemma
        was how to be Jewish and ensure a Jewish electoral majority, and this was not seen as achievable except by
        the expulsion and denial of a right of return to 700,000+ Palestinians permanently uprooted from their place
        of residence. And finally, the normative context of post-WWII was different than post-WWI where soft colonialism
        was still legitimate; the establishment of Israel, however motivated, was perceived as violating the dominant
        norm of self-determination.

        In this respect, the Palestinian tragedy and ordeal was a result of external factors of the very sort that you
        suggests have hurt the Palestinians from the early days of the British mandate. The mandate itself, the partition
        proposal, the injection of foreign money and geopolitical leverage, even the training and supplying of the Zionist militias
        were all externally imposed elements that shifted the balance of forces in favor of the Zionist project. To complain about
        the symbolic recourse to the ICC to vindicate Palestinian grievances seems trivial by comparison and a small step toward
        achieving a more level playing field for a negotiated solution.

        I do not disagree that a bi-national state, for reasons you state and some others, might be almost impossible to realize
        in practice, although if Jews and Palestinians were to accept the essential premises of comprehensive equality I believe it
        could happen, and might bring produce a sense of spiritual renewal for both peoples. I believe the sort of confederal arrangement
        that you envision would I think be acceptable to many Palestinians, but I have serious doubts as to whether Israel or Jordan
        would want such a political arrangement. At this point, and certainly as long as Trump is president and the Saudis/Egyptians
        have other priorities, there seems almost no motivation on the part of the overwhelming majority of Israelis on working out
        what I would consider a sustainable peace. Hopefully, this will change.

        You too, stay say, and as we are doing, keep enjoying what remains enjoyable under stressful circumstances.

        Richard

  4. Rabbi Ira Youdovin April 18, 2020 at 11:53 am #

    Many thanks to Sean Breathnach for calling attention to a Mondoweiss article reporting on what I assume was a recent meeting in Tel Aviv. There is much to learn from it if one understands its context.

    The article doesn’t identify the sponsoring organization (which is a serious violation of journalism’s ethics). But judging from the panel’s composition and the bit of signage visible in the photo, it must have been a left-wing dovish group. The article notes that Jafur Farah was the only Palestinian on the three-person panel, but fails to note that the two other panelists and the moderator are Israeli activists for enhanced Palestinian rights in Israel and Palestinian independence in the context of a two-state solution. This was not a massacre in which Mr. Farah was ambushed. To the contrary, the audience was anything but hostile. Israeli and Diaspora Jews who attend gatherings like this one—and they happen frequently—come to support the Palestinians.

    Moreover, while the article identifies the audience member(AM) who challenged Mr. Farah as an Israeli, (s)he clearly states that (s)he’s a visitor from overseas brought to the meeting by his/her host. I believe these errors and omissions are not accidental. They are designed to support the reporter’s spurious lauding of Mr. Farah for his courage in speaking truth to a hostile audience. (n.b. The Mondoweiss article was written by a Jew on the extreme left of the American Jewish political spectrum. It would be a mistake to characterize it as objective reporting.)

    Mr. Farah’s audience likely supported most of his views. But instead of emphasizing points of agreement to build greater support among Israelis, he chose to pick a fight over points of disagreement by advocating the classic Palestinian narrative, thus provoking angry controversy that drove the meeting to a quick and unhappy adjournment with at least some of the Israelis likely wondering whether they could continue supporting the Palestinians. Chalk it up as a unexpected victory for the Israeli annexation bloc!

    Mr. Farah began by challenging what he said was the AM’s claim that God gave the Land to the Jews. The AM responded that (s)he had made no such claim (the transcript printed in Mondoweiss validates this), but had based his/her claim on history (the Jewish people’s age-old connection to the land.) Mr. Farah proceeded as if he hadn’t heard the disclaimer, and went on with his recital of the Palestinian narrative.

    AM stated that Israelis feared Palestinian threats to annihilate them, especially as they are backed up by stockpiles of lethal rockets and missiles manufactured in and shipped from Iran. Mr. Farah interjected that the people Israelis really fear are the Germans, a key thesis in the Palestinian narrative which portrays Palestinians as being made to pay a steep price for a Holocaust in which they did not participate. There’s certainly some truth in this. Netanyahu and his bloc make frequent references to the Holocaust to support their hard line treatment of the Palestinians. But fear of Arab terrorism and Iranian nuclearism is very real and justifiable.

    Mr. Farah then tacks in a direction that might have astonished some:

    “I’m not willing to let [Iranian leader] Ahmadinejad take advantage of me as he tells the world he’s protecting the Palestinian people. He is not…There was not one Arab leader in the last 100 years who used us and was truly committed to the Palestinian cause.”

    This denunciation, together with the rest of Mr. Farah’s remarks, reveals much of how Palestinians view of their reality. Despite hugely exaggerated claims of global solidarity and the success of BDS and other anti-Israel initiatives, they are haunted by a sense of being utterly alone. They see themselves as having been colonized and then betrayed by the British, invaded and persecuted by the Jews, abandoned by fellow Arabs and Muslims, and frustrated when repeated recitals of their unchanging narrative gets them polite applause but nothing substantial.

    In his important book “Catch ‘67”, the Israeli philosopher Micah Goodman suggests that each participant in the Israeli-Palestinian conflict is responding to its own history.

    Once acclaimed as one of this planet’s greatest civilizations, the Arab/Muslim world has descended in recent centuries into the ignominy of being perceived as a backsliding entity torn by age-old tribal conflicts and misogyny. Like many other Arabs, Goodman concludes, Palestinians suffer from a sense of humiliation. That would explain why Mr. Farah concludes his remarks with a dramatic cri de couer demanding an apology.

    Israelis, for their part, are unable to free themselves from the grip of fear nurtured and reinforced by more than two millennia of exile and persecution. The world’s silence as the Nazi’s slaughtered six million Jews, along with a series of one-sided anti-Israel UN resolutions, fuels a sense that “all the world is against us.” This, in turn, fuels a defensive hard line go-it-alone policy. Going to the ICC would accelerate this downward spiral.

    These two fears—annihilation on one side, humiliation on the other—creates a dynamic propelling a race to the bottom. Last year, the Knesset adopted the “Nation State Law” which, for the first time in Israel’s seventy year history, unambiguously and de jure relegates the state’s Palestinian citizens to second class status. Why now? Because several years earlier, a group of young Palestinian intellectuals published papers advocating support for a one state solution in order to gain a foothold from which they could overwhelm the Zionists with huge numbers of refugees brought in under a Palestinian law of return, thus creating a state dominated by Palestinians.

    To put it crudely, the Nation State law flips the bird at these aspirations. But in turn, it weakens the already shaky position of Palestine moderates seeking accommodation with Israel, which in turn, hastens the demise of a once powerful Israeli peace camp.

    The lesson to be learned from the Tel Aviv meeting is that those on both sides who seek peace must be sensitive to what drives the other. Pro-Israel activists in both Israel and the Diaspora must engage their interlocutors with empathy, and avoid appearing arrogant. Palestinian activists must come to understand that trying to impose guilt trips on people who want to help is counterproductive.

    I write as an American Jewish Liberal Zionist who advocates for Palestinian Israelis and for an independent Palestinian state living in peaceful co-existence with the Jewish ethnocracy of Israel. I do so because I’m committed to achieving freedom and human rights for all, and also because I believe that the futures of both Palestine and Israel are inextricably entwined.

    Shalom,

    Rabbi Ira Youdovin

    • Richard Falk April 19, 2020 at 12:43 am #

      Ira:

      I am impressed once more by the civility and care taken in this response to Sean Breathnach’s comment, although I wish that you would take
      more account of the radical disparity of leverage, status, and circumstances of the two side seeking accommodation.
      Put more crudely: ‘must the slave appease his/her master when seeking a release from bondage?’

      Your last paragraph prompts me to comment. Is there any evidence that Israel would live with the admitted risk
      of political equality with a neighboring Palestinian state? The Palestinians are asked to live with the risks
      of vulnerability to Israeli intrusions. All the proposals have rested the security of the two ethnically delimited states on a
      demilitarized Palestine and Israeli border control, besides retention of settlement blocs. I regard the scope
      and subsidization of the settlement movement as an indirect way of rejecting the creation of a Palestinian
      state, particularly since making real peace with the Palestinians is no longer seen as a priority, whereas
      consolidation of expansion via de facto, and possibly de sure, annexation is increasing viewed as a way of
      completing the victory scenario approach embedded in Trump/Kushner proposals more or less endorsed by both
      Likud & Blue & White.

      I have a question for you: what becomes of ‘liberal Zionism’ if there is no serious prospect of accommodation
      along lines that allow ‘peaceful co-existece’ to be more mutual than Israel as the enforcer and Palestine as
      a polity as vulnerable as, say, Gaza? Past proposals projected inequality into the future in the guise of ‘security,’
      and did not offer an autonomous political space that even quasi-collaborative Palestinian leadership could accept.

      On another note, I would like to believe that we are groping toward a model of blog civility in accordance with the
      wisdom of John Dewey and others who insist that democracy can only flourish if those with drastically diverse views
      listen to one another with attentive respect. Dewey’s words “To take as far as possible every conflict which arises—and they are bound to arise—out of the atmosphere and medium of force, of violence as a means of settlement into that of discussion and of intelligence means to treat those who disagree—even profoundly—with us as those from whom we may learn, and insofar, as friends.” Dewey adds a passage which could have been written by Mahatma Gandhi or Martin Luther King, Jr: “A genuinely democratic faith in peace is faith in the possibility of conducting disputes, controversies and conflicts as cooperative undertakings in which both parties learn by giving the other a chance to express itself, instead of having one party conquer by forceful suppression of the other—a suppression which is none the less one of violence when it takes place by psychological means of ridicule, abuse, and intimidation instead of by overt imprisonment or in concentration camps.” [I borrow these quotations from a communication with my friend, Fred Dallmayr,
      on a quite different concern).

      Greetings, Richard

    • Richard Falk April 22, 2020 at 7:18 am #

      Ira:

      In further reply: I came across this article by Ian Lustig a longtime supporter
      of the two-state solution and liberal Zionist who has lost confidence in this
      path to peace. I would welcome your response, which really involves reasons for
      believing that this approach is viable and better than alternatives:

      Ian Lustig gave up the “false belief” in the two-state solution and acknowledged the struggle for equal rights in a one-state reality. He spoke at the Middle East Institute last December and I caught up with the videos during isolation this week. (Part 1 and Part 2).

      Lustick, a professor of political science at the University of Pennsylvania, long a Washington insider was an “avid and early supporter” of the two state solution, for nearly 50 years, but in the last decade, he accepted that he and other two-state advocates were being “played for a sucker” by the messianic Israeli right as it swallowed the West Bank and Jerusalem, territories no Israeli government will ever withdraw from.

      The Israeli right has dominated Israeli politics and defied the peace process for three reasons, Lustick said: it was able to convince Israelis of the partial effectiveness of the “Iron Wall” idea of crushing Palestinian resistance; it exploited a “Holocaustia” culture promoting mistrust of non-Jews; and it used the American Israel lobby to destroy its rivals.

      The lobby gained a political power that George Washington warned of in his farewell address: a “passionate attachment” to a foreign country to which there would be no countervailing domestic influence in Washington. A grotesque power, Lustick said:

      “That fact about the Israel lobby has allowed it to grow grotesquely in influence so it holds a veto and has held a veto over decades, over American foreign policy when it might get effective.”
      The “superabundant power of the lobby” arose to protect Israel from criticism from Washington, but the unintended consequence was that it “radically shift[ed] Israeli democracy to the right,” Lustick said. The lobby helped to “destroy” the careers of moderate Israeli politicians who might have come to power if the United States had played a “realistic,” “national interest” role and told Israel to stop the settlements.

      “What impact did the unquestioned and unprecedented flood of aid and political support from the United States that was due to the lobby vetoing wiser more rational and realistic or more national interest-oriented policy– what effect did that have in Israel? What it did was systematically disadvantaged positions, arguments and programs of people like Yossi Sarid, Yossi Beilin and Shulamit Aloni, Yigal Allon, or even Moshe Dayan in his time, and systematically supported those who were willing to indulge in messianic expansionist dreams… That’s how you got Begin and Shamir and Netanyahu…. their ability to say we can have the whole land and American support — the lobby made that possible thereby undercutting the left and subsidizing the right.”
      Lustick said that he had himself advised Presidents Jimmy Carter and George H.W. Bush to take a strong stand on settlements so as to drive a wedge inside Israeli politics and build a constituency for a two-state solution. Bush’s opposition to loan guarantees in 1991 actually did lead to the Oslo process, he said.

      But in 2009, Rahm Emanuel gave the same advice to Barack Obama– oppose settlements and you will build that party in Israel– and the stance was an utter failure, and Obama backed away from it. “The difference is that when Rahm Emanuel gave that advice to Obama, not only was the lobby much stronger, but there was no shadow government [inside Israel], no government capable of winning an election on that issue.” So Netanyahu could just play America, as he did throughout the Obama administration till the end.

      So Netanyahu has used liberal Zionists to proclaim that a two-state solution is possible when it is a delusion, Lustick said; and he urged policymakers to stop proclaiming:

      “Entertaining that possibility is actually playing a sucker’s game into what the right wants, which is a constant feeling of that carrot, that maybe we get two states, and meanwhile you send the whole thing into decades and decades and decades of apartheid.”
      But a call for equal rights in one state is not possible in U.S. politics because politicians will get “killed” by the lobby. So politicans perpetuate the delusion. Even Bernie Sanders hides behind the two-state solution.

      What I want in Israel Palestine is something that Jews and Arabs can live with and that honors the principles of democracy, equality and non-exclusive rights to self determination for all peoples. That’s not a position that any of the candidates have taken, even Bernie Sanders, who are still hiding within the idea of a two state solution because they can get away with that politically and that’s all that matters at that level of American politics. Because they know they’re not actually going to get anything in the Middle East and if they did none of their constituents would care. But what does matter is are they going to get killed domestically politically– that’s always– so right now the two state solution is nothing but a safe harbor, something you can attach yourself to to look respectable– and safe from the Israel lobby.
      Lustick expressed shame about using the “red threat of demography” argument to get Israel to give up the territories– i.e., the threat of a Palestinian majority. This is an argument that even Elizabeth Warren used recently; and Lustick said it’s racist, his own mother would not approve; but he did it anyway.

      Progessives like me used the demographic argument for decades to try to address Israelis who were afraid of Arabs, who despised them, who feared them. “So why are you supporting settlements, so why are you supporting Begin and Shamir and the attempt to keep the territories. You don’t want to live with Arabs, do you? You want Arabs involved in the country? Don’t you want a Jewish state?” That’s people like me talking– we were using the demographic argument for what we thought were progressive purposes. And it was a deal with the devil. It didn’t work. OK– it didn’t work. And all of us probably felt, many of us felt, this is not a very nice thing to be doing, my mother would not approve. But we did it.
      That racism goes to the heart of Zionism. “It really was for Zionism the heart of the argument, it always was, and it never goes away– this fear of demography. Guess what, folks, there are more Arabs than Jews west of the Jordan.”

      And the consequences of making that argument is you are counseling Jews who should be in political alliances with Palestinians that they could never do so. “You are undercutting the very mechanism that in the future could democratize the country and bring about the kind of country you want.”

      Jews need to understand that with a one-state reality there will be no Jewish state. The Jewish democracy hoax is over.

      “Here’s the hard truth for many Israeli Jews. No it’s not going to be a Jewish state… What that meant for most Israelis is a state that operates in order to help one section of society against the other, to help Jews as opposed to Arabs, and to do so with the capability to front itself as a democracy. That’s what “Israel is both a Jewish and a democratic state” means. That will not be possible. If you try to look within that, where a state dominates Arabs at their expense for the sake of Jews, you are going to subsidize the domination of the country by the clericalist right. That’s what it really means. So the demographic argument that used to be progressive is actually very regressive.

  5. Fred Skolnik April 19, 2020 at 8:32 am #

    Not that I wish to get involved here, but “conversations” in which you habitually slander an entire people and nation and accuse Israelis of Nazism are neither “civil” nor “elevated” but malicious.

    • Richard Falk April 19, 2020 at 8:50 am #

      I call that ‘involvement,” indeed hyper-involvement.

      I would point out that my criticisms of Israel are directed at official polices and practices, and not directed
      at the people or nation except to the extent that such behavior is explicitly endorsed as in the 2018 Basic Law.
      Besides, you are dredging up and misrepresenting an article written more than a decade ago. Typical smear tactic.

      • Fred Skolnik April 19, 2020 at 9:07 am #

        Then tell us you repudiate that article written a decade ago and apologize for it.

        The 2018 Basic Law, as superfluous as it is, reiterates the simple fact that Israel is a Jewish national state and the Arabs living in it are a national minority, with everything this entails, which is not so intolerable after all as the overwhelming majority of this minority would refuse to live under Palestinian sovereignty on the same land they now inhabit in any exchange of territory, as polls have shown.

      • Richard Falk April 19, 2020 at 12:51 pm #

        I haave no intention to repudiate the article as you misrepresent what was said, which was a warning,
        not an allegation directed at the Jewish people.

      • Fred Skolnik April 19, 2020 at 9:41 pm #

        Misrepresenting what was said? Like hell I am. Take another look:

        http://www.israelnationalnews.com/Articles/Article.aspx/19365

        (“Is it an irresponsible overstatement to associate the treatment of Palestinians with this criminalized Nazi record of collective atrocity? I think not…. If this kind of situation [Israel and Gaza] had existed for instance in the manner in which China was dealing with Tibet or the Sudanese government was dealing with Darfur, I think there would be no reluctance to make that comparison [with the Nazis].”

        Not even Sudan, to your mind, with half a million massacred measures up to the Nazilike way that Israel is dealing with the Palestinians. Of course.

      • Richard Falk April 20, 2020 at 9:01 am #

        I stand by that statement, especially if properly read in the context of the whole article. It was
        more a warning than an indictment.

      • Fred Skolnik April 20, 2020 at 9:59 am #

        You are a despicable and shameless creature. Even to suggest – and you do considerably more than that – that Jews are capable of mass murder is the worst kind of slander, and irresponsibly provides a very nice rationalization for Jew haters to deal with us accordingly. Here on Holocaust Memorial Day I am watching some of the Nazi films, which I’m sure you stay away from. Maybe you should refresh your memory.

    • Sean Breathnach April 19, 2020 at 12:50 pm #

      Now that you are here Fred:
      The children of Palestine
      Are taken under the cover of darkness
      Their homes invaded
      Dragged from their beds
      It’s the soldiers of the IDF

      The children of Palestine
      Brutalised by the occupation
      50 years of humiliation
      Convicted by the military courts
      It’s the soldiers of the IDF

      The children of Palestine
      They see their parents beaten
      Their land confiscated
      Their dignity stolen
      It’s the soldiers of the IDF

      The children of Palestine
      Nothing to look forward to
      No hope in sight… Till…
      A young girl dared to say no more
      It’s the soldiers of the IDF

      • Fred Skolnik April 19, 2020 at 9:43 pm #

        And now that you’re here, Sean, how about a poem about the Israeli women and children blown up in buses and restaurants by your barbaric terrorists.

  6. Sean Breathnach April 20, 2020 at 3:47 pm #

    Fred,

    The last suicide bombing that an Israeli was killed was on Feb 4 2008.
    Three more suicide bombings resulting in 34 Israelis been injured have occurred since 2008.

    Israel bombed Gaza indiscriminately in 2008, 2012 and 2014, resulting in thousands of Palestinian civilians, men, women and children been killed.

    Over the last year, much of the world has watched fixated on the Great Return March in which Israeli snipers have murdered more than 300 Palestinian demonstrators on the eastern edge of Gaza. Another 30,000 have been injured by gunshots or teargas. Nearly 60 of those killed and 7,000 of those injured have been children. Hundreds, including children, have had their limbs amputated as a result of being shot with ammunition designed to tear apart limbs.”

    It is not difficult for anyone to see that Israel uses more violence against Palestinians than the other way around.

    Nobody deserves to be killed by a suicide bomber or by a bomb dropped on them by Israeli planes, everybody is equal in my eyes.

    • Fred Skolnik April 20, 2020 at 10:31 pm #

      Israel did not bomb Gaza indiscriminately, If it had there would have been 100,000 dead after every clash as in Dresden after two days of Allied bombing. Half the people killed in Gaza were Hamas “fighters.” The rest were killed because Hamas fired thousands of rockets at Israel’s civilian population from in and around schools, playgrounds, hospitals, clinics, mosques and residential buildings and did not even allow its own civilian population to evacuate these areas when Israel warned them of impending attacks on rocket launchers via flyers, emails and phone calls.

      As for your Great Return, whose declared aim was to overrun Israel’s border and murder as many Israelis as possible, 80% of the Palestinians killed were arned members of the terrorist groups as Hamas quickly boasted until advised to tone down that aspect of things. When mobs riot, innocent people are going to get hurt.

      • Sean Breathnach April 21, 2020 at 5:31 am #

        Fred,

        Your statement that Israel did not bomb Gaza indiscriminately is incorrect. This article in the Middle East Monitor is a more accurate assessment of the build up and attack on Gaza.

        https://www.middleeastmonitor.com/20180708-remembering-the-2014-israeli-offensive-against-gaza/

        Again, your statement on the Great Return March is incorrect. This article by Jim Kavanagh ‘Sacrificing Gaza: The Great Return March of Zionist Hypocrisy’ is a truer picture of events.

        https://www.counterpunch.org/2018/06/04/sacrificing-gaza-the-great-march-of-zionist-hypocrisy/

      • Fred Skolnik April 21, 2020 at 7:16 am #

        Second- and third-hand English-language articles that you are unequipped to evaluate or verify should not be your basis for determining what is a true picture of events. Are you actually saying that Hamas did not fire thousands of rockets from in and around schools, etc., prevent Palestinians from leaving the area after Israeli warnings, call for the murder of Israelis in their march, send thousands of its armed men into the mob, proudly list its martyrs in the march? I’m sure you’ll know how to find the aerial photographs and testimonies of journalists leaving Gaza telling you just where the launching sites were located as well as Hamas statements about their intentions and losses.

  7. Sean Breathnach April 21, 2020 at 1:35 pm #

    Fred,

    You continue to defend the indefensible. Here are the casualties from rockets and airstrikes, from September 29, 2000 to the present.

    30 Israelis have been killed in Palestinian rocket attacks.

    5,851 Palestinians have been killed in Israeli airstrikes.

    The figures speak for themselves.

    • Fred Skolnik April 21, 2020 at 10:17 pm #

      No they don’t. Few Israelis are killed because Israel protects them by building shelters. Many Palestinians are killed because Hamas intentionally exposes them, and around half the killed are Hamas “fighters.”

      • Sean Breathnach April 22, 2020 at 7:23 am #

        Fred,

        “Perhaps this shouldn’t come as a shock. For most of Israel’s existence, the majority of Israelis have allowed the state, in the name of Jewish sovereignty and security, to violate Palestinians’ basic human rights — including access to water and the freedom of movement and assembly. The state has killed unarmed protesters and then failed to carry out investigations; it has allowed settlers and soldiers to act with impunity; and it has systematically discriminated against non-Jewish citizens. After so many years of repressing those who stand in the way, the transition to targeting “one of your own” isn’t so difficult. Now it is the few Jewish Israelis who speak the language of human rights who are branded as enemies.”

        This is the truth and anyone with a little fairness knows that. You Fred, don’t speak the language of truth or human rights, you just continue to defend the indefensible.

        I’ll give you the last word, that’s if you want it.

      • Fred Skolnik April 22, 2020 at 8:21 am #

        No, it is not the truth. You are engaging in rhetoric. The truth is that Jordan attacked Israel in 1967, lost a war, refused to make peace, as did the Palestinans afterwards, and as a consequence they have been living under military occupation since that time, with all that entails. All security measures are responses to terrorist activity with the sole aim of stopping terrorist attacks.

  8. Rabbi Ira Youdovin April 23, 2020 at 10:28 am #

    Richard,

    The neighborhood has gotten a bit noisier of late. Hopefully, we can maintain our conversation which is rooted in mutual respect for each other’s views although these remain divided and likely will remain so.

    You ask if there’s evidence of Israel’s willingness to live with the risk of political equality with a neighboring Palestinian state? I’ll do a very Jewish thing by answering your question with a question: what do you mean by political equality? I assume that your criteria for an independent Palestine are not radically different from the norm: an independent Palestinian state would be a Palestinian ethnocracy enjoying sovereignty within its own borders, security, realistic prospects for prosperity, full membership in appropriate international organizations and peaceful co-existence with the Jewish ethnocracy of Israel.

    To be sure, some Israeli Jews would object to establishing Palestinian sovereignty over any portion of the land the Bible designates for the Jewish People. But their numbers are small and their influence marginal without the support of a larger group who fear that an independent Palestine without an Israeli presence to control terrorism would go the way Gaza went when Israeli Prime Minister Sharon removed every Israeli settler and soldier. Hamas moved in swiftly and turned Gaza into a base for stockpiling and launching rockets into Israel. But polls suggest that a majority of Israelis would be willing to take the risk on condition that Jewish settlers are treated fairly and security issues are resolved. You apparently have concerns. I’d appreciate your sharing a few.

    You are correct that Israel will insist on retaining a Jewish electoral majority wherever it establishes its sovereignty. (The Palestinians would be a majority in Palestine.) This concept is not embedded in some dark secret conspiracy. On the contrary, it’s been fundamental to Zionism since its inception, responding to nearly three millennia of political impotence. In a perhaps ironic way, it serves as a strong argument against annexation. Many Israelis affirm the inadmissibility of annexing land while denying its inhabitants full citizenship with franchise, thus creating a Palestinian majority. Faced with having to choose between Palestinian statehood or imposing a permanent apartheid regime, Israeli is likely to choose the first option.

    You ask: ”what becomes of ‘liberal Zionism’ if there is no serious prospect of accommodation…?” Our sages cautioned that “prophecy is best left to children and idiots”—but I’ll give it a try. If the fragmented Palestinian political landscape continues to be dominated by ideologically driven rejectionists, I fear that the already weakened Israeli peace camp will be totally discredited, leaving the Palestinian issue completely in the hands of right-wing extremists. This is not good for the Palestinians and possibly even worse for Israel.

    This is why I participate on this blog. I’m not playing the blame game to build support for Israel and antipathy toward the Palestinians. To the contrary, my message to both sides, and their overseas supporters, is that the conflict can be resolved to their mutual benefit only if both make an honest and painful self-appraisal, and abandon strategies the have created and maintain the impasse.

    I agree that with Trump, Likud, Hamas and a corrupt and impotent PA on the scene this is probably not a propitious time for negotiations. But it is a time for not moving backwards. As I’ve posted previously, going to the ICC promises, at best, a small symbolic victory, as they have won repeatedly through nearly a century of juridical combat while gaining next to nothing substantial. Reconciliation entails diminishing the strength of rejectionists on the sides. As I’ve posted in the past, seeking assistance from external actors serves to camouflage the Palestinians’ resistance to making course corrections that might actually help them. And a favorable ruling from the ICC, while essentially meaningless, would strengthen the hand of Israeli rejectionists who argue that “the entire world is against us!”, which entitles them to do what please because anything they do will be condemned.

    I end on that happy note, hoping to receive your thoughts on what I’ve written.

    Respectfully,

    Ira

    • Richard Falk April 24, 2020 at 5:31 am #

      Ira:

      I greatly appreciate your tone and the clarity of your responses on crucial issues. You
      have given me a hefty assignment, but I will do my best, although somewhat pressed by deadlines.
      At some point we should try to understand why we interpret the same reality so differently although
      more or less exposed to the same sources.

      On the question of equality, I do not mean the formal equality of two sovereign states, but the acceptance
      of the substantive equality that does not ever seem to have been part of the Israeli ‘peace consensus.’ Unless I am wrong
      Israel has always insisted on three elements of inequality that made it unreasonable to expect the Palestinians
      to go along with past proposals, and certainly not the recent Trump/Kushner plan: Israeli border control in relation
      to an independent Palestine, permanent demilitarization of P, with no restraints on I; nationality laws that give
      Jews an unconditional right of return, and deny Palestinians any right of return even if family roots are deep. There are
      other issues, including the future of Jerusalem, water diversion.

      I regard the Sharon ‘disengagement’ from Gaza in 2005 much more problematic than you do. True, all soldiers were withdrawn
      and settlements dismantled, but Israel imposed from the outset strict border control over imports/exports, and entry/exit. As many have observed,
      Gaza after disengagement was subject to numerous military incursions and interferences, and the timeline for action & reaction
      is controversial and hard to distinguish cause and effect, e.g. re rockets. Hamas’ success in Gaza was partly electoral, and partly
      a power struggle with Fatah. Recalling that the US had exerted pressure on Hamas to shift tactics from armed struggle to a political
      track, and when they did, and prevailed, there were efforts to reverse this political outcome and to insist that Hamas be treated as
      a terrorist organization. Also, it is well-documented that Hamas
      tried by quiet diplomacy and by open proposals to reach a long-term ceasefire arrangement, warning that otherwise there would be violence.
      From my experience, I believe this was the real intent of the Hamas leadership, or at least the most influential leaders. From a Palestinian
      point of view, post-2005 treatment of Gaza is a warning as to what to expect with a similar Israeli withdrawal with security provisos in relation
      to the West Bank.

      The logic of seeking a Jewish homeland with the safeguards of state power, but it could only be implemented in a period when colonialism was
      declining, nationalism rising, by coercive means of dispossession & repression, because it meant overwhelming the homeland claims of the resident
      majority population. Only the erasure of the Palestinians could envision a Jewish state in Palestine without the prospect of determined resistance,
      and the cycle of violence that has ensued.

      On suggesting that ‘liberal Zionism’ remains the best alternative, I find your suggestions that the Palestinians forego possible remedies for their grievances by recourse to the ICC, and law generally surprising. Seeking to resolve disputes by law is a core liberal value in most settings. Israel’s defiance of IHL and other sources of international authority creates a situation where Palestinian frustrations seem justified, e.g. the refusal to adhere to the ICJ 2004 advisory opinion on the separation wall, which had been supported by all 15 judges except the US judge is indicative of the unwillingness by Israel to accept any assessments of rights except by its own institutions. To suggest then the Palestinians are doing themselves harm by following the lead of ‘ideologically driven rejectionists’ seems puzzling to me when what is offered to them is so meager.

      If liberal Zionism wants to remain relevant it should at least put forward some vision of how a two-state plan could be implemented given the continuing expansion of the settlements, imminent plans to annex Area C, and the general enthusiasm with which the Trump plan was accepted by both Netanyahu & Gantz. Israel’s failure to freeze settlement expansion ever since the 1990s seems a strong signal of not seeking a political compromise on territory along the lines that has been projected ever since 1967, and in the Arab Initiative, as a reasonable starting point for a genuine peace process. I admit that even if this had been done, it would have failed to achieve Palestinian assent because of my belief that without equality on matters of security and human rights, no sustainable agreement can be reached, and even if reached, would collapse. In this sense the merger of a Zionist effort to achieve a Jewish homeland with Israeli statehood is the final nail in the coffin of accommodation as it could only be maintained by force as it would be continuously challenged by force–hence, the emergence and persistence of apartheid structures of fragmentation and subjugation.

      I fear that we may understand our divergent views better, but not come any closer to convergence, or even a preferred way forward. I wait for you to prove me wrong! With greetings, and my hopes for your health and safety.

      Richard

      • Rabbi Ira Youdovin April 28, 2020 at 10:56 am #

        Richard,

        I appreciate your invitation to discuss the question of whether a One State or Two State format offers better prospects for resolving the Israeli-Palestinian conflict.

        Like Ian Lustick, many of us liberal Zionists have been frustrated by Israel’s increasingly rightward turn. We’ve channeled our disappointment in different ways. Some have walked away. Others have become hostile. And many, like myself, have remained involved, understanding that political currents can and do shift, especially when nudged.

        Aaron David Miller, a liberal Zionist who served as the #2 man on the US State Department’s Middle East desk under four presidents and is currently a Senior Fellow at The Carnegie Endowment for International Peace, has a personal history that in many ways parallels Lustick’s. His essay, “The False Religion of Peace,” caused a stir when published in the April 19, 2010 issue of FP as it cautioned against optimism in assessing the Israeli-Palestinian peace process. But unlike Lustick— who pays no attention to Palestinian policy and activity, thus making it appear that they are totally innocent victims—Miller blames both sides, lamenting that progress toward resolution will be unattainable so long as the current leadership remains in power. That was written in 2010. A decade later, the leadership on both sides remains largely unchanged.

        Lustick lays much of the blame for the impasse on the Israel Lobby, whose power he characterizes as “grotesque”. What is the Israel Lobby? As used by Israel’s critics, it’s a massive and monolithic force singularly intent on defeating Palestinian national aspirations and denying them basic human rights wherever they live. This is simply inaccurate. The Israel Lobby embraces a broad diversity of views united by a shared commitment to protecting Israel’s secure future. It includes organizations that unambiguously oppose Israel’s treatment of the Palestinians: JStreet, Americans for Peace Now, T’ruah and others, including the three largest American synagogue movements which comprise a majority of American Jews.

        How did the Israel Lobby acquire its power? The standard answer from Israel’s critics is Jewish votes and Jewish money. But Jews comprise only a miniscule percentage of the American population, so the so-called Jewish vote doesn’t count for all that much. Besides, American Jews tend to support liberal candidates regardless of their position on Israel. More than 70% of Jewish voters supported Obama, including for his second term after his differences with Netanyahu became apparent. It can be anticipated that the Jewish vote in November will be overwhelmingly for Biden no matter what the Democratic party’s platform says about Israel.

        As regards money, Jews are generous in making political contributions. But major political donations come from a variety of sources, especially since Citizens United.

        In my opinion, and the opinion of others, the Israel Lobby’s success derives from three sources:

        1. Experience. Living under the thumb of anti-Semitic rulers for more than two millennia, we Jews have become adept at the art of political persuasion.

        2. Shared values. While Israel is far from being a perfect democracy, its admittedly flawed system resonates more comfortably with Americans than anything else in the Middle East, including the Palestinians.

        3. American self-interest. Lustick, like Mearsheimer/Walt before him, alleges that America’s support for Israel undermines its status in the region. Just the opposite is true. Like all other nations, America’s foreign policy is designed to serve its own interests. In the aftermath of World War 2, Washington’s fear of antagonizing the numerous and oil rich Arabs dictated a policy that was at best lukewarm to partitioning the British mandate and establishing a Jewish state. The U.S. did vote for partition and was the first nation to recognize Israel, ten minutes after it declared independence. But Washington provided no military assistance during the 1948 war, forcing the newborn state to smuggle in weapons purchased in Czechoslovakia.

        Then came Israel’s stunning victory in the 1967 war and Israel became America’s primary strategic ally in the Middle East as it grappled with the Soviet Union in a Cold War contest for regional influence. By comparison, the Arabs offered little in the way of political stability and technological know-how. And to make matters worse, they entered into alliances with Moscow. When the U.S. helped Israel develop a nuclear arsenal in the mid-late 1960’s, it was protecting its own base in an area of extreme political turbulence. Ditto for its on-going financial support for Israel’s military. Seen in the light of these realities, Lustick’s applying President Washington’s warning to the present situation is absurd.

        Along the way, American diplomats noticed that despite their expressions of anger and threats, Arab leaders didn’t much care about how Israel was treating the Palestinians. Their calls for jihad in defense of oppressed Palestinian brothers was nothing more than lip service intended to draw the Arab Street’s attention away from injustices their own rulers were inflicting on them. The Arab Spring blew away this camouflage and Israel’s place as a significant piece in the American sponsored Sunni alliance against Shiite irredentism became one of the contemporary world’s open secrets.

        Needless to say, whether one believes that this policy is good or bad for the United States depends on one’s view of Iran. But to say that Israel is the tail that wags the American dog is simply wrong. In fact, when one considers American foreign policy since the Bretton Woods conference in 1944, it should become apparent that this conclusion is not only wrong but strains credulity.

        Richard, I wonder if you were not misquoting Lustick in saying that “he and other two-state advocates were being played for a sucker by the messianic Israeli right as it swallowed the West Bank and Jerusalem.” It’s a helluva admission. Any analyst who admits to believing it possible that Israel’s messianic right would surrender one inch of what they hold to be the Jewish People’s God-given patrimony should hang up his crystal ball and look for another line of work.

        But only a small portion of the settlers are there to collect on God’s promise. A majority are motivated by concern for national security, or suburban style convenience to jobs in Tel Aviv or Jerusalem, or because the West Bank is a nice place to live. Moreover, popular support for the Greater Israel movement that would preclude Palestinian statehood is by no means absolute. Current survey findings reported by Dr. Tamar Hermann of the Israel Democracy Institute reports that 64% of Israelis who self-define as “centrist” and 80% of those who self-define and “leftists” favor establishing an independent Palestinian state. And somewhat startling, only 50% of self-defined “rightists” oppose it.

        Likud could be voted out of power in the next Knesset election. It almost happened this time.

        An even more revealing snapshot of public opinion among Israeli Jews came in response to an optimism vs. pessimism question asked shortly after details of the Trump plan were announced. There was a sharp upturn in the number of people who felt more optimistic about Israeli security but more pessimistic about Israel’s democracy.

        At day’s end, Israel will have to choose between taking the risk of allowing a base for rocket attacks on its eastern border which— combined with Hamas in Gaza and Hezbolla in Lebanon—would surround it with well-armed and hostile enemies. Or establishing Israeli sovereignty which, in turn, forces a choice between radically changing its political demographics or imposing a form of apartheid.

        Palestinians living in the occupied territories have a significant influence on Israeli elections. Netanyahu won by waging a vicious campaign of loathing and fear casting Palestinians as being irreversibly committed to destroying Israel. Palestinian bellicosity—i.e. rockets fired and attack tunnels in Gaza—gives credence to these allegations. By renouncing terrorism, the Palestinians likely could tip the vote in the direction of a bloc of centrist and left centrist parties, possibly in coalition with the Palestinian Joint List. It almost happened this time.

        As to how the Palestinians should address the Trump proposal (which I agree is unacceptable), I’ll refer to a recent essay by Salaam Fayyad, formerly vice president of the Palestinian Authority, which was published by Brookings. After offering a compelling list of reasons for rejecting the proposal he writes:

        “All of this provides a compelling basis for a Palestinian rejection of Trump’s vision. It is well to keep in mind, however, that, by itself, such rejection does not render that vision inconsequential. Nor should it, therefore, be conflated with a rejection strategy, with the latter requiring a clear-eyed assessment of the existential risks the Palestinian national movement faces, an informed identification of available policy choices, and the willpower needed to pursue them.

        “Such would be an act of leadership whose absence at several inflection points over the past century better explains the causes of Palestinian failures than the mere rejection of past visions or plans. Needless to say, the Palestinian effort going forward should not at all be encumbered by the heavy weight of the false narrative underlying the adage “every time Palestinians say ‘no’, they lose…”

        This is not a matter of “the slave singing its master’s tunes”, as you have characterized it. To the contrary, it’s a savvy, albeit courageous, game plan for staying in the game.

        Which brings me—at long last!—to your question: why do I continue to support a Two State solution? Because with all its flaws, it’s the best solution available. A bi-national state is a non-starter. Both sides reject it, and there is no even remotely reasonable pathway for creating one and making it function effectively. Indeed, the prospects of two actors who can’t agree on terms for divorce living in matrimonial bliss are dismal.

        A One State solution draws its most enthusiastic support from extremists on both sides who see it as an opportunity to gain superiority over the other. It’s a prescription for escalating violence until the winner either subjugates or drives out the loser.

        In a Two State solution, both sides are winners, although the prize is a scaled down version of their national aspirations. But accepting comprise is preferable to risking total defeat.

        In closing, I’d welcome your response to Salaam Fayad, or to anything else in this overly long post.

        Stay well and stay safe,

        Ira

      • Richard Falk April 28, 2020 at 9:50 pm #

        Ira:

        I need to find time to study your comprehensive and reaches persuasive
        conclusions on the basis of a string of coherent interpretations of the
        relevant realities. Our differences flow mainly from radically different
        characterizations of relevant facts: how we perceive AIPAC and the Jewish Lobby;
        settlers and settlements; sincerity of mainstream Israeli Zionists in pursuing
        an equitable two-state solution; and the de facto reality of an Israeli one-state
        solution composed of occupation, settlements, militarization of control, apartheid,
        fragmentation.

        I will see whether I have anything more useful to add as I see our differences as
        based not on values but on interpretation–or what we see and don’t see. For example,
        you regard assertion of excessive Jewish influence on governing authority or, say, Hollywood,
        as an anti-Semetic trope, while I regard it as a fact.

        Greetings from Yalikavak,

        Richard

  9. Rabbi Ira Youdovin April 23, 2020 at 11:27 am #

    Fred,

    This is difficult for me to write. We’ve participated side-by-side on this blog for a long time. I’ve enjoyed and learned from you posts, which display your scholar’s knowledge and understanding of events as well as your published author’s graceful and effectove use of language. I’ll admit that I’ve sometimes been put off by your use of ad hominem attacks which, while often provoked, produce more heat than light. And, as happens with all of us in the heat of verbal warfare, some of it is simply wrong.

    My friend, not everything Israel and Israelis do on the West Bank is done for the sake of security. Burning olive trees is an example. And things that are done for legitimate security reasons are sometimes done with malice and cruelty. Is it really necessary to bulldoze the homes of a terrorist’s family?

    If we’re to call out instances when pro-Palestinian “analysis” is actually propaganda, shouldn’t we judge our own comments by the same yardstick? The case for Israel is strong enough to stand without enhancement.

    I look forward reading subsequent posts and hope that your civility will be reciprocated.

    Meanwhile, Shabbat Shalom and Yom ha-Atzmaut sameach, virtual or otherwise.

    Ira

    • Fred Skolnik April 24, 2020 at 3:37 am #

      Dear Ira, nice to hear from you and I hope you’re all in good health.

      It is not of course government policy to tear up olive trees and the matter of blowing up houses was stopped by the Israeli courts though it has apparently crept back into use. It may be cruel but it is not done with malice but as a deterrent. As in all armies, however, individual soldiers will sometimes exceed the bounds, though I think less than in other armies, and in view of the nature of the conflict the authorities will sometimes be lenient with them. In any case, rules of engagement are very clearcut, as I can tell you from personal experience, and certainly do not encourage cruelty in any form.

      Shabbat Shalom

      Fred

  10. Rabbi Ira Youdovin May 3, 2020 at 10:21 am #

    Richard,

    Yes, I’m disappointed by your stubbornness. But I shouldn’t be. There have been clear signals that I didn’t fully comprehend.

    Your unchanging narrative depicts the Palestinian-Israeli conflict as slave v. master, which supports an airtight system of extreme moral relativism in which Palestinians can do no wrong and Israel can do no right. The system provides apologetics to justify Palestinian misdeeds, and alleges cynical motives to discredit Israeli good deeds. It serves as a protective shield blocking any contrary evidence, however credible it may be. It also serves to undermine an exchange of ideas except among people united by their shared belief in Israel’s total and exclusive culpability. Having followed your blog for some years, I should have understood that, but didn’t. It’s now time to throw in the towel.

    You’ve been very respectful of my views, even praising my thoughtfulness. I appreciate that. But my ideas have made no impact on your thinking which persists in resisting change even as the world inside and outside Israel/Palestine changes, offering new challenges and new opportunities. I also appreciate that folks who had previously assaulted me and others with slanderous ad hominem attacks remained on the sidelines this time. But we’re going in circles which means going nowhere. I’ll miss the cordiality of our conversation, but it’s time to stop. I may drop in from time to time, but not with the same frequency of these recent months.

    Stay safe. Stay well. Shalom

    Respectfully,

    Ira

    • Richard Falk May 3, 2020 at 10:45 am #

      Ira:

      I understand your frustration, but to some extent it is mutual as I feel also to have
      made no impact on your thinking. And on one matter you misjudge my views. I have been
      quite critical of Palestinian behavior, both tactically and strategically, as well as
      recourse to certain forms of resistance that target those who are innocent. My point,
      maybe misleading borrowing from Hegel’s use of master/slave interaction, is not to dismiss
      gestures on either side, but to suggest that if sustainable peace is the objective then
      account must be taken of their multi-dimensional inequality, and that Israel has to signal
      its willingness to embrace a peace process that accepts the equality of the two peoples, their
      basic rights and their mutual needs for security.

      My lingering question to you is whether Zionism is compatible on either doctrinal or existential
      levels with such an embrace of equality. The current push toward annexation and embrace by the
      leadership of Trumpets approaches seems to suggest a win/lose logic of instutionalizing and
      living with the insecurities of inequality.

      I feel I learn from our exchanges even if I doubt that we will alter our major premises. I consider
      my efforts to be seeking to depict the true path to peace, and I have come to appreciate that you are
      doing the same. You must decide whether our exchanges are worth the effort at this stressful time.

      With greetings from Yalikavak, and hopes that while safe, you are able to enjoy what remains enjoyable.

      Richard

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