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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

  • ·
  • ·
  • ···
  • ····
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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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No. ICC-01/18

2/29

16 March 2020

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

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

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

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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

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

  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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Trump/Netanyahu Diplomacy: Orientalism by any Other Name

1 Feb

[Prefatory Note: Based on Javad Heiran-Nia’s Interview (1 Feb 2020) on ‘the deal of the century.’]

Trump/Netanyahu Diplomacy: Orientalism by Any Other Name

1-Trump announced at the unveiling of the Deal of the Century, insisting that these proposals are a just plan for peace. Do you think that this plan serves Palestinian interests?

 

This so-called contribution to ‘peace’ requires Palestine to give up its most fundamental rights, and accept a permanent condition of subjugation and victimization. It is framed in such a one-sided pro-Israel manner as if designed to ensure its instant and overwhelming rejection by Palestinian government representatives and by Palestinian public opinion. The plan is nothing other than a thinly disguised geopolitical power play as overseen by Netanyahu and Trump to promote their own political agendas and safeguard their leadership positions, which are currently under fire in both Israel and the United States.

The Trump Plan perpetuates, institutionalizes, deepens, and seeks to validate the current Israeli apartheid state, and also purports to extend legal protection by conferring Israeli sovereignty to land-grabs of those Palestinian territories that have languished under occupation and a variety of Israeli encroachments ever since 1967. The plan reduces Palestinian legitimate presence from the 22% under occupation after the 1967 War to a 15% remnant, essentially the urban Palestinian communities in the West Bank and some uninhabitable land in the western Negev.

 

 

2-One of Trump’s goals for unveiling the plan is to help Netanyahu get rid of his internal troubles. Does this help Netanyahu get into power in Israel, given his possible trial?

 

It seems to express the view, likely to be popular with some voters in Israel, that Netanyahu was able to twist Trump’s arm, as no other Israeli politician could have done, sufficiently to achieve almost everything that the Zionist Movement ever dreamed of achieving—a de facto one-state solution that permanently submits all of Palestine to the direct and indirect control of Israel, declared by the Israeli Basic Law in 2018 to be exclusively the nation-state of the Jewish people, obliterating the rights and equal standing of the non-Jewish minorities. What is called ‘a state’ in the plan’s text is not a state as understood in diplomacy, as it is denied the elemental rights of a sovereign state under international law, and commits the Palestinians living under occupation to permanent Gaza-like conditions and leaves the more than five million Palestinian refugees out in the cold, denying their right of return to wherever their former residences were located.

 

 

3-What should the Palestinians do to counter this plan?

Raise their voices at the UN and elsewhere to make clear that the plan is a farce and a fraud, and worse, an international crime; demonstrate with resolve and telling slogans, including shaming the Arab countries that showed support for the deal; encourage the BDS Campaign to exert maximum pressure; ask governments and the UN to impose sanctions; seek legal confirmation of Palestinian rights at the World Court in The Hague; insist upon a new diplomatic framework to address the Israel/Palestine conflict free from the distorted and absurdly biased leadership provided by the United States over many years, including the pre-Trump period. It is clearer than ever that Palestinian rights will only be achieved by determined struggle, by isolating Israel, by global solidarity pressures, and by holding the Israeli government and its leaders accountable for imposing criminal policies.

 

4-Why have Arab countries such as Saudi Arabia, UAE, Oman, Bahrain, Egypt agreed to this plan?

 

Two main reasons: 1) these Arab governments are threatened by any democratizing movement, especially among Arabs, and fear that the achievement of Palestinian self-determination will destabilize their own oppressive governing arrangements; 2) to ensure continuing support for their anti-Iranian and Sunni regional priorities from the Trump presidency.

 

Such agreement by governing elites is not at all a reflection of popular sentiments in these countries, whose peoples continue to be strongly supportive of the Palestinian struggle, but helpless to influence their autocratic governments.

 

 

  1. 5. This plan is in contradiction with UN resolutions and there has been no consultation with the Palestinian side. How is the US and Israel going to accept Palestine?

 

The Trump Plan not only ignores international law, it makes proposals that flagrantly and defiantly violate such basic provisions as the prohibition on acquiring territory by force reaffirmed in Security Council Resolution 242. Also, by institutionalizing an oppressive governing arrangement that relies on racial discrimination, the plan institutionalizes apartheid, which is defined as ‘a crime against humanity’ in Article 7(j) of the Rome Statute that controls the operations of the International Criminal Court.

 

Israel and the U.S. will first have to agree to dismantle the apartheid elements of the Israeli state as a vital precondition for diplomatic progress toward a sustainable and just peace that reflect a commitment to the equality of Jews and Arabs, of Israeli Jews and Palestinians. Without satisfying this precondition for a peace process, it is delusionary to expect an end to a conflict over land and rights that has gone on for more than a century.

 

 

  1. 6. While Trump calls the plan fair, it has violated the rights of the Palestinian people. Is this plan feasible?

 

It is a plan so manifestly unfair as to be best interpreted as designed to fail, an outcome already prefigured by near universal Palestinian rejection. As such, the Trump/Netanyahu approach apparently relies on its capacity to impose a solution on the Palestinian people, and label it ‘peace.’ Seen more realistically, the plan is a naked attempt to declare unilaterally an Israeli victory and to make the world believe that the Palestinian struggle has become a lost cause, hoping that a kind of bribery provision to the effect that if Palestinians will admit defeat and make a formal declaration of political surrender, their life will become better if measured by living standards. The arrangements offered to the Palestinians as a whole resemble what the people of Gaza have endured since 2007 and what was attempted by South African apartheid in his latter stages through the establishment of encircled, powerless bantustans in remote areas of the country where the African population was required to live in misery and humiliation. Such schemes in the post-colonial world are recipes for violent struggle, and should not be confused with genuine attempts to move by mutual agreement from war to peace or oppression to constitutional democracy. The ‘deal of the century’ turns out to be Orientalism on steroids!

 

 

AN AMERICAN ATTACK ON IRAN WOULD BE AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD: Iran War Statement

25 Jun

[Prefatory Note: The following statement on US warmongering in relation to Iran was prepared by Mark LeVine, Professor of History, University of California, Irvine and myself. Some of the early signatories are among the leading scholars in the field of Middle East Studies. Their names are listed below.

It seeks to make two major arguments: first, that the unlawful threats and coercive moves made by the United States point toward a political disaster that would include the commission of the most serious of international crimes, that of aggression via threats and uses of force that do not constitute self-defense under international law; secondly, that it is essential to shift the relationship with Iran from one based on coercive to an approach resting on restorative diplomacy involving a deliberate reversal of American Foreign Policy with the overriding objective of normalization of relations between our two countries.

If you wish to add your name to the signatories of the statement, use the link below. As there  is no space for affiliation, I suggest putting your first and last name in the first blank space, and your affiliation in the space reserved for last name.]

https://secure.avaaz.org/en/community_petitions/President_Trump_An_American_Attack_on_Iran_Would_be_an_Unmitigated_Disaster_for_the_US_Iran_and_the_World/details/

 

 

 

AN AMERICAN ATTACK ON IRAN WOULD BE

AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD

 

Statement by leading Middle East/Islamic studies scholars, June 22, 2019

We, the undersigned scholars of the Middle East and North Africa and broader Muslim world, call on President Trump immediately to pull back from the brink of a war with the Islamic Republic of Iran. It is clear to us that the human, diplomatic, legal, political, and economic costs to both countries, the Persian Gulf and larger Middle East, the global economy and the global system of international humanitarian law of a US attack would be even more devastating than was the US invasion of Iraq sixteen years ago. We call upon the political leadership of the country, with a sense of urgency, not only to refrain from any further threats and uses of force against Iran, but also to put forward a new American diplomacy that takes steps to achieve a sustainable peace between our two countries and within the larger region.

 

We bring to the public’s attention the following points:

 

– The US-led Iraqi invasion, whose financial toll has exceeded $2 trillion in the US and at least that much in its adverse economic impact on the affected countries, led to the deaths of over 600,000 Iraqis, largely destroyed the Iraqi state and much of the country’s infrastructure, produced devastating immediate and long-term impact on the health of Iraqis and the environment, directly contributed to the rise of the Islamic State and its conquest and occupation and destruction of a huge swath of Iraq and neighboring countries (especially Syria), and produced a series of governments in the region which, even when there is a veneer of democracy, are incredibly corrupt and unable effectively to govern fractured societies, while continuing routinely to commit large scale human rights violations against their citizens.

 

– Like the Iraqi invasion before it, an attack on Iran under the present circumstances would be a clear violation of international law–a crime against peace, which is an international crime of the highest order, and delineated as such in the Nuremberg Judgement. Indeed, absent a valid claim of self-defense any attack on Iran, never mind a full-scale invasion and occupation by the United States, would violate the core articles of the UN Charter (Articles 2(4), 33, 39 & 51) as well as the legal imperative to seek a peaceful settlement of all international disputes. Such “breaches of the peace” are the most serious violations of international law a country can commit, and the US doing so again less than a generation after the Iraqi invasion would situate it outside the community of nations, making it widely regarded as a dangerous and destabilizing rogue actor whose behavior is the very opposite of the self-understanding and justifications of the Trump Administration for its actions. In this regard the recent array of threats, sanctions, and provocations are themselves flagrant violations of international law even without any direct recourse to force; only self defense against a prior armed attack across as international border legally justifies a claim of self-defense. Absent this, all threats, as well as uses of force, are considered severe violations of international law.

 

Particularly in the context of the United States’ unilateral withdrawal from the 2015 Joint Comprehensive Plan of Action, which verifiably halted the potential for Iran to pursue a nuclear weapons program, and the imposition of crippling economic sanctions against the government and people of Iran without a UN Security Council mandate, the present policy of increasing pressure on Iran and irresponsibly raising risks violent confrontation that could quickly escalate to an all-out war, coupled with the inflammatory discourse of regime change championed by National Security Advisor John Bolton and Secretary of State Mike Pompeo, constitute clear interference with Iranian sovereignty rights as well as with the inalienable right of self-determination enjoyed by the Iranian people. As such, these policies are violations of international law and of the UN Charter, inherently destabilizing, and themselves pose unacceptable threat to peace.

 

Recent events have alarmed us, demonstrating how ill-defined policy goals, bellicose rhetoric, policies and brinkmanship, and operating outside the well-defined framework of international law can easily bring countries to the brink of mutual disaster. The ongoing global impact of the Iraqi invasion (from the rise of ISIS to the aborted Arab Spring, greater support for authoritarian rulers, and the civil wars in Libya, Syria and Yemen and the massive wave of refugees these dynamics have caused) reminds us that the Middle East, and the world at large, cannot afford another major war in the region. Such a conflict would undoubtedly lead to a horrific toll of dead and injured, major environmental destruction, large scale forced migration, world-wide recession, as well as producing other equally dangerous and unintended consequences.

 

Finally, we note here that the Trump Administration’s bellicose policies towards Iran are inseparable from its uncritical and unrestrained support of authoritarian and repressive policies across the region, from the ever-deepening Israeli occupation to the Saudi and UAE war in Yemen, the destruction of democracy in Egypt and the frustration of democratic aspirations of citizens across the Middle East and North Africa, all of which contribute to the immiseration and increasingly forced migration of millions of people across the region and the unjustified repression of their legitimate aspirations for freedom, justice, democracy and sustainable development.

 

We therefore call upon President Trump, first, to pull back from any thought of an unsanctioned attack; second, to rejoin and implement the 2015 nuclear agreement; third, to terminate the enhanced sanctions he continues to impose on Iran; and fourth, to enter into immediate and good faith negotiations towards a normalization of relations with the Islamic Republic. Along with these immediate steps, we call for an honest appraisal of the costs of historic and current American policies in the Middle East and North Africa, and their reorientation towards support for freedom and democracy.

 

In the absence of these steps, we call on the US Congress to act swiftly and decisively to prevent the President from leading the United States into war, and call on our fellow academics, policymakers, diplomats, military officials, elected representatives, and concerned citizens to assert whatever pressure necessary to prevent the Administration from engaging in any kind of attack on Iran, or any other country, outside the bounds of international law and without the clear and explicit authorization of the UN Security Council.

 

Signed (partial list, as of June 21),

 

Beth Baron, Distinguished Professor, Director, Middle East and Middle Eastern American Center, Graduate Center, City University of New York, past President of the Middle East Studies Association

 

Joel Beinin, Donald J. McLachlan Professor of History and Professor of Middle East History, Emeritus Stanford University, past President of the Middle East Studies Association

 

Laurie A. Brand, Robert Grandford Wright Professor of International Relations and Middle East Studies University of Southern California, past President of the Middle East Studies Association

 

Charles E. Butterworth, Emeritus Professor, Department of Government & Politics, University of Maryland

 

Juan R. Cole, Richard P. Mitchell Collegiate Professor of History at the University of Michigan, past President of Middle East Studies Association

 

John Esposito, University Professor, Professor of Religion & International Affairs and Islamic Studies, Georgetown University, past President of the Middle East Studies Association and American Academy of Religion

 

Richard Falk, Professor of International Law Emeritus, Princeton University, former, UN Special Rapporteur on Human Rights in the Occupied Territories

 

Nader Hashemi, Professor of Middle East and Islamic Politics, Josef Korbel School of International Studies, University of Denver, Director of the Center for Middle East Studies

 

Suad Joseph, Professor of Anthropology and Women and Gender Studies at the University of California, Davis, past President of the Middle East Studies Association

 

Mark LeVine, Professor of History, UC Irvine, Chair, Program in Global Middle East Studies

 

Zachary Lockman, Professor of Middle Eastern and Islamic Studies, and History, past President of the Middle East Studies Association

 

Valentine M. Moghadam, Professor of Sociology and International Affairs, Northeastern University, past President of the Middle East Studies Association

 

Ahmad Sadri, Gorter Chair of Islamic World Studies, Professor of Sociology, Lake Forest College

 

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

2 Jun

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

 

  1. Two recent exceptional books, Justice for Some: Law and the Question of Palestine (2019) by Noura Erakat and For the Love of Humanity: The World Tribunal on Iraq (2018) by Ayça Çubukçboth reject the liberal trope of assuming international law is an ally with respect to their passion for justice. Law as such is a neutral instrument, historically invented to serve the purposes of the strong, and more recently seen as useful for the weak in certain settings. When law is aligned with injustice it gives rise to resistance, which historically is associated with the hallowed tradition of civil disobedience, influential with Tolstoy, Gandhi, and more recently, Martin Luther King, Jr.. In these contexts civil disobedience can involve the nonviolent transgression of any legal norm that calls attention to the specific injustice. For instance, a refusal to pay taxes or trespass on a military base are illustrative. Armed struggle may also achieve law-generating legitimacy as was the case in the decades after World War II for anti-colonial wars or wars of national liberation. So far, there is no traditional of internationalor globalcivil disobedience. In a globalizing world, transnational activism needs such a means to protest injustice. Perhaps, the purported criminalization of the BDS Campaign directed at Israel in some Western countries gives this option to activists

 

  1. David Kennedy earlier developed the argument, if I read him correctly, that a principal value of international law in war/peace contexts is to provide a familiar and accepted discoursethat facilitates communication between representatives of governments, diplomats, and other actors. This assertion is more innovative than it appears at first glance. Most of us believe the main function and test of law’s effectiveness is whether it achieves restraints on behavior on the basis of legal prohibitions. Kennedy is skeptical of the ability of international law to shape the behavior of sovereign states in war/peace contexts, yet affirms the relevance of international law to the conduct of international relations. Instead of stressing the regulation of behavior of sovereign states, Kennedy believes that international law is primarily useful for purposes of intra-governmental and inter-governmental communication, helping policymakers determine how policy should be framed and justified. The challenge for most moderate governments is to exercise their discretion in ways responsive to a range of concerns, including humanitarian, security, and strategic. For overall discussion see Kennedy, Of War and Law (2006). There is a further point. In effect, language being inherently malleable, it is always possible to interpret the law to conform to preferred policy options reflecting societal roles and normative background. For this reason, in matters that challenge major state interests law serves mainly to communicate and clarify, but lacks the political traction to restrain. Law does allow the strong to vindicate their claims of belligerent rights as in war crimes trials of the leader(s) of defeated countries. A recent instance is the trial and execution of Saddam Hussein orchestrated by the victorious law-violating aggressor.

 

  1. By contrast, in Revisiting the Vietnam War (2018) I contend that American policies in Vietnam after 1954 were unlawful in various ways, with a special stress on the U.S. extension of the combat zone in South Vietnam to North Vietnam after 1964. In effect, international law, as well as the UN Charter, sought to be regulative with respect to behavior, as well as the incidental benefit of offering a framework for discourse among diplomats. Further, that regulative intentions giving rise to such legal norms were seeking to restrict recourse to international force to situations of self-defense strictly defined. The overriding goal of the. UN Charter is war prevention. The Nicaragua Casedecided by the World Court in 1986 confirmed the view that international law governing recourse to force was regulated in a manner entirely consistent with the UN Charter core concepts of unconditional prohibition (Article 2(4)), coupled with an exception for validclaims of self-defense made dependent on the existence of “a prior armed attack” across an international boundary. (Article 51). History is relevant. When the grief and tragedy of war remained an active memory restraint followed, not only because the law so decreed but as a reflection of the psychological anti-war mood that then briefly prevailed. 

 

  1. Such a regulative view of international law rests on a premise that there are correct and incorrect (or better and worse) modes of interpretation with respect to theapplicationof legal norms. This premise does not entail a positivist approach that restricts the meaning attributed to legal norms to the language used in formal texts or customary rules. A more appropriate interpretative approach can be adopted, enlarged to take account of context, including ethical, sociological, and historical considerations. When a country has recourse to force, claimint to act in accord with its right of self-defense or contends that its uses of force are proportional and discriminate a regulative approach can disagree by offering contrary factual and interpretative evidence. The absence of authoritative interpreters of international law make theses assessments rest to a greater degree on supposedly neutral scholarly or expert opinion, which is deemed more trustworthy as not forthcoming from a partisan source. Of course, scholars disagree just as judges disagree. For this reason the selection of judges or the appraisal of scholarly merit is crucial and often determinative of ‘the law.’ The significant differences between Brett Kavanaugh and Ruth Bader Ginsberg are not vocational or analytical as much as they are normative and subjective.

 

  1. Myres McDougal in collaboration with Harold Lasswell addressed this issue of ‘normative ambiguity.’ They attempted. to resolve the challenge of authoritativeness by reference to ‘reasonable expectations’ as assessed by reference to the values at stake in a free society. As their work was rooted in the global setting of the Cold War their inclinations were to find that American foreign policy was in most instances compatible with international law as it was assumed guided by a commitment to promote free world values and by reliance on capabilities able to bring effective power to bear on the behavior of political actors. See McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion(1961); see also McDougal & Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of World Order,” American Journal of International Law53:1 (1959). Such a jurisprudential perspective regards international law as a geopolitical instrument evaluated as good or bad by reference to the normative credentials and material capabilities of political actors. These credentials are given concrete significance by assessing the degree of adherence of a domestic public order system to the values of a free society. The West, from this point of view supposedly adhered to such values, while the Soviet bloc did not. Such a framework was deeply ideological as in contested situations, for instance, Vietnam, where the differences between the Soviet and American forms of government should not have affected the legal assessment of violations of the sovereign rights of Vietnam.

 

  1. Çubukçu explores the relevance of international law in the informal setting of a people’s tribunal established to assess the legality of the Iraq War, including the subsequent occupation of Iraq. The tribunal was charged with determining whether political leaders, military commanders, and corporate officers should be held personally accountable under international criminal law. Admittedly, this is a somewhat misleading way to conceive of the central mission of the Iraq War Tribunal. This appropriation of law by those acting on behalf of civil society are doing so on the basis of already formed judgments that reflect moral convictions. Such a peoples’ tribunal is tasked with documentingviolations of international law and international crimes, and is expected to justify conclusions of criminality, which were presumed, and motivated the effort to create such a tribunal. Such a ‘judicial’ undertaking is not motivated by a search for the proper mode of interpretation. The Tribunal’s ‘jury of conscience’ did not rest its authority on the basis of having legal experts pass judgment, although it was permissible to have such individuals participate, but only to the extent that their politics are right and their reputation as exemplary citizens is high. Putting the point differently, these kinds of civic initiatives are undertaken because of anti-war sentiments being considered applicable to the judgment of belligerent behavior being challenged and the failure of formal institutions, including the United Nations, to protect a sovereign nation, in this case Iraq, from military attack and occupation. It is not an inquiry as generally understood, but a gathering of evidence and interpretative argument to mount a challenge directed at a controversial policy of a government, usually a government that enjoys impunity with respect to its wrongdoing. The conclusions of such a tribunal is ultimately an appeal to international public opinion, but usually falls short of its goals because of limits on funding available to disseminate results and antipathy of mainstream media to these activities. These tribunals are portrayed by the media as usurping the role of formal institutions and are constituted without any acceptable constitutional mandate. The underlying question is whether civil society has any lawmaking authority deserving respect. As such tribunals challenge the new political norms of post-truth society, some view their role as benevolent, others as irrelevant if not malevolent. There is no doubt that civil society exerts an influence on public opinion with respect to issues of war/peace, including accountability for war crimes. Such influence tends to be more evident in democratic societies. Yet modern democratic states rely on extensive claims of secrecy, nationalist ideology, money, and militarism to marginalize those citizens who seek to engage more fully and critically with public policy, especially the war/peace agenda, than by voting periodically. Tribunals established by citizens is a dissident mode of participatory democracy, and more important for this reason than as a contribution to upholding the rule of law.   

 

  1. Academic international law specialists rarely acknowledge any legal, moral, and political relevance to civil society initiatives that claim a residual authority to act when governments and the UN fail to do so. In this sense, the Nuremberg and Tokyo trials after World War II also proceeded on the basis of predetermined results, but because constituted by sovereign states as represented by governments, their undertaking was generally viewed as deserving of respect. The documentation of criminality was widely regarded as an invaluable form of political education. What little criticism of these legal initiatives by academic specialists did occur focused on the fact that the crimes of the victors, including the atomic bombing of Japanese cities, were excluded even from inquiry, much less accountability. In other words, since international law is treated as subject to the statist framework of world order, non-statist initiatives to pronounce on the wrongdoing of states are dismissed as without legal relevance.

 

  1. We are confronting various kinds of partisan scholarship, some overt, some hidden. Çubukçu and Erakat are notable because they make their partisanship explicit, whereas the mainstream jurisprudential traditions, whether positivist, realist, or sociological, claim an objective approach premised on the mystique of ‘the majesty of the law.’ Or as in recent debates about the Trump presidency, rhetorical flourishes such as ‘no one is above the law’ are common yet non-operational. Even before the banner of ‘fake news’ was waved so defiantly, it was obvious that law and legal order depend more on the political and ethical outlook of the interpreter than on legal training and analytical skills or even on the aura of legitimacy surrounding governmental institutions. It is usually more helpful to know the viewpoints of the judges on the U.S. Supreme Court than knowing all about the substantive ins and outs of a legal controversy being addressed.

 

  1. Shall we also admit that the law in the books will not necessarily matter unless it is accompanied by a sufficient political willto seek and achieve implementation? In international life this political will depend heavily on the attitudes of leading geopolitical actors. In domestic society the political will is shaped by what the 20thcentury Austrian sociologist of law, Eugen Erlich, called ‘the living law,’ the values and expectations of the people as the crucial indicator of effective law.For routine matters such as tourism, diplomatic representation, maritime safety governments comply because it is convenient for them to do so, or reciprocity creates mutual benefits. When war/peace is at stake, then law tends to be sidelined by geopolitics, invoked when it serves interests, evaded or refuted when it contradicts interests. The hope after the devastating war that ended in 1945 and generated a well-founded fear that a future war would involve nuclear devastation was that it would incline the most powerful state to abandon war as an instrument of policy as a matter of law reinforced by political will. Instead geopolitical actors, above all the United States and the Soviet Union opted more for prudence than prevention, continuing to advance their interests by investing heavily in military capabilities and by pragmatic recourses to international force. This post-nuclear militarism was tempered by strong efforts to limit the scale and stakes of conflict to avoid a major war that could lead to the use of nuclear weaponry.

 

  1. The substantive context matters. The state, if corruption and incompetence can be minimized, can be relied upon to act lawfully if the subject-matter is What is treated as routine shifts with time, and reflects to some extent the ebb and flow of political outlook, but generally coincides with behavior that reflects reciprocal interests as is the case with diplomatic immunity, maritime safety, and often even treatment of prisoners of war. Geopolitical actors generally have a strong interest in stability for purposes of trade, investment, travel, and communications that depends on reliable international legal frameworks. Law collapses when there is absent a political will to implement the legal norms as is the case with respect to economic and social rights. Such norms come into existence because of widely shared moral aspirations, but lack political traction to challenge entrenched private sector interests that benefit from non-compliance as with the ‘right to food’ or the ‘right to health.’ Beyond this, the absence of an international community dedicated to human interestsas distinct from national interests makes it evident that despite economic and social rights anchored in treaty law, any sense of meaningful internationalresponsibility is almost non-existent. What international relief is forthcoming in response to famine and natural disasters is invariably voluntary, a matter of good will, rather than an expression of an obligatoryresponse.

 

11.Where asymmetries of power exist, as in competing claims of sovereign rights, with respect to the delimitation of territorial boundaries or upholding the right of self-determination, law validates grievances, motivates resistance, but cannot shape political outcomes. Asymmetries of power are conventionally associated with relative military capabilities, but this has been demonstrated to be misleading in post-1945 international relations. A major recent prominent example is the overall success of the anti-colonial movement. In case after case a mobilized popular resistance of the nation overcame the superior military capabilities of the colonial power. The exceptions to this pattern involve settler colonial societies in which the native population was exterminated or marginalized as in North America, Australia, New Zealand, or somewhat assimilated as in most of Latin America. Relative military power is still highly relevant in conflicts between states, but not in their subsequent occupation. In the instances of aggression against Afghanistan and Iraq, the military superiority of the United States prevailed in the attack phase of warfare, yet during the subsequent occupation phase it endured a political defeatthat basically nullified the military victory. In the post-colonial world, popular sovereignty when effectively mobilized as resistance can often challenge geopolitical maneuvers, upholding basic rights, but at great human cost. Legitimating resistance through law as occurred in the course of the great anti-colonial struggles of the last half of the 20thcentury may have been the greatest contribution of the United Nations to peace and justice.   

 

 

12.I will end where I began, celebrating the publication of the recent books by Çubukçu and Erakat. Çubukçu helps us better understand the complex interplay of law and war from the perspective of movement politics; the geopolitical state is the target of disapproval for its behavior—trampling on the sovereign rights of the Iraqi people by waging an unprovoked war. Erakat, in contrast, explores how law has been twisted by governments to serve geopolitical interests at the expense of basic Palestinian rights, and yet normative discourse nevertheless currently serves the struggle of the Palestinian people and strengthens the political will of transnational civil society to challenge Israel.  

 

 

 

 

 

Julian Assange: Criminal or Benefactor?

14 Apr

Julian Assange: Criminal or Benefactor?

 

I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange.  Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.

 

The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.

 

A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.

 

WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.

 

We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.

 

The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’

 

The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.

 

A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals,  admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.

 

In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.

 

Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.

 

In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.

 

What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.

 

It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?

 

As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution,  conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.

 

The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated

The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war

crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.

 

Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.

 

In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.

 

Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.

On My 88thBirthday: A Reflection

13 Nov
  • [Prefatory Note: I took part in a stirring program here in Berlin earlier this evening in support of three activists from Palestine and Israel
  • who face criminal charges for disrupting a meeting featuring Zionist denials of Israeli crimes against humanity. Two of the three who face these charged are Jews born in Israel, and one a Palestinian born in Gaza, whose family was in audience, including his father who was in an Israeli
  • prison for 18 years. It was an inspirational event that discussed with depth and insight the obstacles to support for Palestinian rights encountered in Germany because of the persistence of German guilt about the Nazi past. In my remarks I tried to convey the understanding that the only true way to erase that sense of the past is to oppose the ongoing Israeli crimes of states rather than be complicit by choosing to be silent in the face of evil. I post a poem that I wrote earlier today, and read at the end of my talk, perhaps a self-indulgent conceit on my part, but I share it here as a way of thanking so many friends near and far who sent me the most moving birthday greetings throughout the day, which made me feel that we who are supporting the Palestinian struggle are part of a growing community that will prevail at some point, and the two peoples now inhabiting Palestine can finally live in peace, and with dignity and equality. All of us agreed that peace can only happen once the apartheid structure of the present Israeli state is fully dismantled and a spirit of true equality for Palestinians and Jews is affirmed and implemented, not only for those living under occupation, but for Palestinians confined to more than 60 refugee camps, to those millions long victimized by involuntary exile, and by the Palestinian minority in Israel.]
  • On My 88thBirthday: A Reflection 

    To be almost 90

    And happy

    With good health

     

    Feels criminal

    Amid Satanic happenings

    Raising Images too dark

    To be real

     

    Children in Gaza

    Are shot to death

    Friday after Friday

    By official assassins

     

    Khashoggi’s murder

    An unspeakable crime

    Yet no more than a problem

    For hard men of power

     

    Events so dark

    And so numerous

    Casting shadows

     

    Will despair be our fate?

    Is this truly our world?

    Are we even meant to survive?

     

    My hope– to live

    Long enough to shout

    An everlasting ‘No’

     

    And may so affirming

    Become my last word

    Become my testament

    Of hope for all beings

     

     

     

    Richard Falk

    Berlin

    November 13, 2018

     

    ]

 

 

The Great March of Return: The Gaza Sniper Massacre  

10 Jun

The Great March of Return: The Gaza Sniper Massacre

 

“No country would act with greater restraint than Israel.”

NIKKI HALEY, U.S. Ambassador to the UN

 

 

 

[Prefatory Note: The Gaza Sniper Massacre in response to the Great Return March is one more  milestone in Palestinian resistance and yet another frightening episode in the Israeli apartheid narrative of cruel and excessive violence, a shameful sequel of crimes for which there exists no adjudicative tribunal available to the victimized party to pursue justice. The post that follows consists of juxtaposing news items, a searing opinion piece by the courageously uncompromising Israeli journalist Gideon Levy and a wide-ranging brilliant commentary by my friend, Jim Kavanaugh. The post and is dedicated to the memory of Razan al-Najjar, the brave 21year old paramedic mortally shot while tending Palestinian demonstrators wounded at or near the Gaza fence. This young woman epitomized the purity of nonviolent yet heroic resistance, an identity given historical depth by her joy for life and her supreme sacrifice imposed by sniper brutality.

 

The Israeli political leadership and military commanders must be presumed to have chosen such a display of excessive and vindictive violence for a clear political objective, which will remain undisclosed. It would seem to be taking advantage of having unlimited support from the Trump presidency and the most favorable regional political situation of their history, but we may still ask ‘to what end?’ My best guess is that the effort was designed to convince the people of Gaza, more than Hamas, that resistance, and especially unarmed resistance was futile. Without a diplomatic path and with the annexationist path wide open, Israel would benefit from a Palestinian acknowledgement that the struggle is over, and they have lost. The Great March of Return was a defiant refusal to concede defeat, no doubt angering Israel, and inflicting a major defeat in the other war—the Legitimacy War being fought for hearts and minds on the basis of seizing the high moral and political ground.

 

Finally, we need to understand that the problem of winning the Legitimacy War is mostly a struggle to have the truth heard, to have it understood on all the major issues in dispute, law and morality are aligned with the Palestinian demands, but this has so far proved politically irrelevant as geopolitics and military capabilities strongly lean in an Israeli direction. Can Palestinian resistance as reinforced by a growing global solidarity movement overcome these Israeli

advantages? Time will tell. So far the corporatized media has sided with Israel, which is a battlefield in the Legitimacy War where the Palestinians have mainly fared badly.]

 

 

 

 

 

 

(1) The Free Gaza Movement

 

Please share this news with everyone you can think of. The only way we have a hope that these brave sailors will be safe is if the news gets out. There has been very little coverage so far. This is what we have found in the past day.

 

Quds News Network·

For the first time, #Gaza will attempt to break the 12-year-long siege by sea

On Tuesday morning, ships will set sail with a number of injured Gazans and patients abroad, carrying the hopes and dreams of the Palestinian people for freedom.

Tuesday’s Gaza flotilla will coincide with the 8th anniversary of an Israeli attack on the Turkish “Mavi Marmara” flotilla, in which nine Turkish activists were killed when the Israeli navy attacked the vessel in international waters. A tenth activist died nearly four years later, succumbing to injuries sustained during the raid.

 

 

https://www.middleeastmonitor.com/20180527-gaza-boats-will-attempt-to-break-israel-navy-siege-on-tuesday/

 

https://www.reuters.com/article/us-israel-palestinians-violence/israeli-air-strikes-target-boat-moored-in-gaza-residents-idUSKCN1IO06T

 

https://www.aljazeera.com/news/2018/05/boats-carrying-gaza-patients-set-bid-break-israel-blockade-180527150238689.html

 

 

 

Greta Berlin, Co-Founder, the Free Gaza movement

 

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

(2) Jonathan COOK ‘LETTER FROM NAZARETH”

The flames that killed Fathi Harb should make us all burn with guilt and shame

27 May 2018

The National – 27 May 2018

Fathi Harb should have had something to live for, not least the imminent arrival of a new baby. But last week the 21-year-old extinguished his life in an inferno of flames in central Gaza.

It is believed to be the first example of a public act of self-immolation in the enclave. Harb doused himself in petrol and set himself alight on a street in Gaza City shortly before dawn prayers during the holy month of Ramadan.

In part, Harb was driven to this terrible act of self-destruction out of despair.

After a savage, decade-long Israeli blockade by land, sea and air, Gaza is like a car running on fumes. The United Nations has repeatedly warned that the enclave will be uninhabitable within a few years.

Over that same decade, Israel has intermittently pounded Gaza into ruins, in line with the Israeli army’s Dahiya doctrine. The goal is to decimate the targeted area, turning life back to the Stone Age so that the population is too preoccupied with making ends meet to care about the struggle for freedom.

Both of these kinds of assault have had a devastating impact on inhabitants’ psychological health.

Harb would have barely remembered a time before Gaza was an open-air prison and one where a 1,000kg Israeli bomb might land near his home.

In an enclave where two-thirds of young men are unemployed, he had no hope of finding work. He could not afford a home for his young family and he was about to have another mouth to feed.

Doubtless, all of this contributed to his decision to burn himself to death.

But self-immolation is more than suicide. That can be done quietly, out of sight, less gruesomely. In fact, figures suggest that suicide rates in Gaza have rocketed in recent years.

But public self-immolation is associated with protest.

A Buddhist monk famously turned himself into a human fireball in Vietnam in 1963 in protest at the persecution of his co-religionists. Tibetans have used self-immolation to highlight Chinese oppression, Indians to decry the caste system, and Poles, Ukrainians and Czechs once used it to protest Soviet rule.

But more likely for Harb, the model was Mohamed Bouazizi, the Tunisian street vendor who set himself on fire in late 2010 after officials humiliated him once too often. His public death triggered a wave of protests across the Middle East that became the Arab Spring.

Bouazizi’s self-immolation suggests its power to set our consciences on fire. It is the ultimate act of individual self-sacrifice, one that is entirely non-violent except to the victim himself, performed altruistically in a greater, collective cause.

Who did Harb hope to speak to with his shocking act?

In part, according to his family, he was angry with the Palestinian leadership. His family was trapped in the unresolved feud between Gaza’s rulers, Hamas, and the Palestinian Authority (PA) in the West Bank. That dispute has led the PA to cut the salaries of its workers in Gaza, including Harb’s father.

But Harb undoubtedly had a larger audience in mind too.

Until a few years ago, Hamas regularly fired rockets out of the enclave in a struggle both to end Israel’s continuing colonisation of Palestinian land and to liberate the people of Gaza from their Israeli-made prison.

But the world rejected the Palestinians’ right to resist violently and condemned Hamas as “terrorists”. Israel’s series of military rampages in Gaza to silence Hamas were meekly criticised in the West as “disproportionate”.

The Palestinians of the West Bank and East Jerusalem, where there is still direct contact with Israeli Jews, usually as settlers or soldiers, watched as Gaza’s armed resistance failed to prick the world’s conscience.

So some took up the struggle as individuals, targeting Israelis or soldiers at checkpoints. They grabbed a kitchen knife to attack Israelis or soldiers at checkpoints, or rammed them with a car, bus or bulldozer.

Again, the world sided with Israel. Resistance was not only futile, it was denounced as illegitimate.

Since late March, the struggle for liberation has shifted back to Gaza. Tens of thousands of unarmed Palestinians have massed weekly close to Israel’s fence encaging them.

The protests are intended as confrontational civil disobedience, a cry to the world for help and a reminder that Palestinians are being slowly choked to death.

Israel has responded repeatedly by spraying the demonstrators with live ammunition, seriously wounding many thousands and killing more than 100. Yet again, the world has remained largely impassive.

In fact, worse still, the demonstrators have been cast as Hamas stooges. The United States ambassador to the UN, Nikki Haley, blamed the victims under occupation, saying Israel had a right to “defend its border”, while the British government claimed the protests were “hijacked by terrorists”.

None of this can have passed Harb by.

When Palestinians are told they can “protest peacefully”, western governments mean quietly, in ways that Israel can ignore, in ways that will not trouble consciences or require any action.

In Gaza, the Israeli army is renewing the Dahiya doctrine, this time by shattering thousands of Palestinian bodies rather than infrastructure.

Harb understood only too well the West’s hypocrisy in denying Palestinians any right to meaningfully resist Israel’s campaign of destruction.

The flames that engulfed him were intended also to consume us with guilt and shame. And doubtless more in Gaza will follow his example.

Will Harb be proved right? Can the West be shamed into action?

Or will we continue blaming the victims to excuse our complicity in seven decades of outrages committed against the Palestinian people?

 

 

 

(3) The Israel Massacre Forces

 

The shooting on the Gaza border shows once again that the killing of Palestinians is accepted in Israel more lightly than the killing of mosquitoes

 

Gideon Levy

https://www.haaretz.com/opinion/.premium-the-israel-massacre-forces-1.5962852

 

 

The death counter ticked away wildly. One death every 30 minutes. Again. Another one. One more. Israel was busy preparing for the seder night. TV stations continued broadcasting their nonsense.

 

It’s not hard to imagine what would have happened if a settler had been stabbed – on-site broadcasts, throw open the studios. But in Gaza the Israel Defense Forces continued to massacre mercilessly, with a horrific rhythm, as Israel celebrated Passover.

 

If there was any concern, it was because soldiers couldn’t celebrate the seder. By nightfallthe body count had reached at least 15, all of them by live fire, with more than 750 wounded. Tanks and sharpshooters against unarmed civilians. That’s called a massacre. There’s no other word for it.

 

Comic relief was provided by the army spokesman, who announced in the evening: “A shooting attack was foiled. Two terrorists approached the fence and fired at our soldiers.” This came after the 12th Palestinian fatality and who knows how many wounded.

 

 

 

 

 

 

 

Sharpshooters fired at hundreds of civilians but two Palestinians who dared return fire at the soldiers who were massacring them are “terrorists,” their actions labeled “terror attacks” and their sentence – death. The lack of self-awareness has never sunk to such depths in the IDF.

 

As usual, the media lent its appalling support. After 15 deaths Or Heller on Channel 10 News declared that the most serious incident of the day had been the firing by the two Palestinians. Dan Margalit “saluted” the army. Israel was brainwashed again and sat down to a festive meal in a spirit of self-satisfaction. And then people recited “Pour out Thy wrath upon the nations that know Thee not,” impressed by the spread of plagues and enthusing at the mass murder of babies (the killing of the first-born Egyptians, the 10th plague).

 

Christian Good Friday and the Jewish seder night became a day of blood for the Palestinians in Gaza. You can’t even call it a war crime because there was no war there.

The test by which the IDF and the pathological indifference of public opinion should be judged is the following: What would happen if Jewish Israeli demonstrators, ultra-Orthodox or others, threatened to invade the Knesset? Would such insane live fire by tanks or sharpshooters be understood by the public? Would the murder of 15 Jewish demonstrators pass with silence? And if several dozen Palestinians managed to enter Israel, would that justify a massacre? The killing of Palestinians is accepted in Israel more lightly than the killing ofmosquitoes. There’s nothing cheaper in Israel than Palestinian blood.If there were a hundred or even a thousand deaths Israel would still “salute” the IDF. This is the army whose commander, the good and moderate Gadi Eisenkot, is received with such pride by Israelis. Of course, in the holiday media interviews, no one asked him about the anticipated massacre and no one will ask him now either.

But an army that prides itself on shooting a farmer on his land, showing the video on its website in order to intimidate Gazans; an army that pits tanks against civilians and boasts of one hundred snipers waiting for the demonstrators is an army that has lost all restraint. As if there weren’t other measures. As if the IDF had the authority or right to prevent demonstrations in Gaza, threatening bus drivers not to transport protesters in territory where the occupation has long ended, as everyone knows.

 

Despairing young men sneak in from Gaza, armed with ridiculous weapons, marching dozens of kilometers without hurting anyone, only waiting to be caught so as to escape Gaza’s poverty in an Israeli jail. This doesn’t touch anyone’s conscience either. The main thing is that the IDF proudly presents its catch. Palestinian President Mahmous Abbasis responsible for the situation in Gaza. And Hamas, of course. And Egypt. And the Arab world and the whole world. Just not Israel. It left Gaza and Israeli soldiers never commit massacres. The names were published in the evening. One man was rising from his prayers, another was shot while fleeing. The names won’t move anyone. Mohammed al-Najar, Omar Abu Samur, Ahmed Odeh, Sari Odeh, Bader al-Sabag. This space is too small, to our horror, to list all their names.

 

(4)Sacrificing Gaza: The Great March of Zionist Hypocrisy

 

By Jim KavanaghOn June 4, 2018

 

 

Photo by Jordi Bernabeu Farrús | CC BY 2.0

The Great March of Return is a startling, powerful expression of Palestinian identity and resistance. Thousands of Palestinians have come out, bravely and unapologetically, to say: “We refuse to remain invisible. We reject any attempt to assign us to the discard pile of history. We will exercise our fundamental right to go home.” They have done this unarmed, in the face of Israel’s use of deadly armed force against targets (children, press, medics) deliberately chosen to demonstrate the Jewish state’s unapologetic determination to force them back into submissive exile by any means necessary. By doing this repeatedly over the last few weeks, these incredibly brave men, women, and children have done more than decades of essays and books to strip the aura of virtue from Zionism that’s befogged Western liberals’ eyes for 70 years.

 

What the Israelis have done over the past few weeks—killingat least 112and wounding over 13,000people (332 with life-threatening injuries and 27 requiring amputation)—is a historical crime that stands alongside the Sharpeville Massacre(69 killed), Bloody Sunday(14 killed), and the Birmingham Fire Hoses and Police Dog Repressionas a defining moment in an ongoing struggle for justice and freedom. Like those events, this month’s slaughter may become a turning point for what John Pilger correctly calls“the longest occupation and resistance in modern times”—the continuing, unfinished subjugation of the Palestinian people, which, like apartheid and Jim Crow, requires constant armed repression and at least occasional episodes of extermination.

 

The American government, political parties, and media, which support and make possible this crime are disgraceful, criminal accomplices. American politicians, media, and people, who feel all aglow about professing their back-in-the-day support (actual, for some; retrospectively-imagined, for most) of the Civil-Rights movement in the American South and the anti-apartheid struggle in South Africa but continue to ignore the Palestinian struggle for justice against Zionism, because saying peep one about it might cost them some discomfort, are disgraceful, cowardly hypocrites.

You know, the millions of ant-racist #Resistors who are waiting for a quorum of Natalie Portmans and cool elite, preferably Jewish, personalities to make criticism of Israel acceptable before finding the courage to express the solidarity with the Palestinian people they’ve always had in their hearts. Back in the day, they’d be waiting for Elvis to denounce Jim Crow before deciding that it’s the right time to side with MLK, Malcolm, and Fred Hampton against Bull Connor, George Wallace, and William F. Buckley.

 

Dis/Ingenuity

 

The bankruptcy of purportedly anti-racist and humanitarian liberal-Zionist ideology and ideological institutions reached an apogee with the eruption of various apologia for Israel in the wake of this crime, not-so-subtly embedded in mealy-mouthed “regret the tragic loss of life” bleats across the mediascape. All the usual rhetorical subjects were rounded up and thrown into ideological battle: “Israel has every right to defend its borders” (NYT Editorial Board);  the “misogynists and homophobes of Hamas” orchestrated the whole thing (Bret Stephens); the protestors are either Hamas “terrorists” or Hamas-manipulated robots, to be considered “nominal civilians” (WaPo). And, of course, the recurring pièce de résistance: Human Shields!

 

Somewhere in his or her discourse, virtually every American pundit is dutifully echoing the Israeli talking pointlaid down by Benjamin Netanyahu during the Israeli attack on Gaza in 2014: that Hamas uses the “telegenically dead” to further “their cause.” The whole March of Return action is “reckless endangerment, bottomlessly cynical” (Stephens). Women and children were “dispatched” to “lead the charges” although they had been “amply forewarned…of the mortal risk.” It’s a “politics of human sacrifice” (Jonathan S. Tobinand Tom Friedman), staged by Hamas, “the terrorist group that controls [Gazans’] lives,” to “get people killed on camera.” (Matt Friedman, NYT Op-Ed). The White House, via spokesman, Raj Shah, adopts this line as its official response“The responsibility for these tragic deaths rests squarely with Hamas,” which “intentionally and cynically provoke[ed] this response” in “a gruesome… propaganda attempt.”

Shmuel Rosner takes this “human shields” trope to its ultimate “no apologies” conclusion in his notorious op-edin the NYT, “Israel Needs to Protect Its Borders. By Whatever Means Necessary.” Feeling “no need to engage in ingénue mourning,” Rosner forthrightly asserts that “Guarding the border [or whatever it is] was more important than avoiding killing.” They want human sacrifice, we’ll give ‘em human sacrifice!

 

He acknowledges that Gazans “marched because they are desperate and frustrated. Because living in Gaza is not much better than living in hell,” and that “the people of Gaza … deserve sympathy and pity.” But the Palestinians were seeking“to violate [Israel’s] territorial integrity,”so “Israel had no choice” but to “draw a line that cannot be crossed,” and kill people trying to leave that hell. It was “the only way to ultimately persuade the Palestinians to abandon the futile battle for things they cannot get (“return,” control of Jerusalem, the elimination of Israel).”The alternative ismore demonstrations — and therefore more bloodshed, mostly Palestinian.”

 

Though he acknowledges that “the interests of Palestinians are [not] at the top of the list of my priorities,” Shmuel nonetheless feels comfortable speaking on their behalf. He sincerely “believe[s] Israel’s current policy toward Gaza ultimately benefits not only Israel but also the Palestinians.”Following the wisdom of “the Jewish sages” (featuring Nick Lowe?) he opines: “Those who are kind to the cruel end up being cruel to the kind.”

 

Fear not, Shmuel, for the pitiable people of Gaza: Knesset member Avi Dichter reassuresus that the Israeli army has enough bullets for everyone. If every man, woman and child in Gaza gathers at the gate, in other words, there is a bullet for every one of them. They can all be killed, no problem.”For their ultimate benefit. Zionist tough love.

There is nothing new here. Israel has always understood the ghetto it created in Gaza. In 2004, Arnon Soffer, a Haifa University demographer and advisor to Ariel Sharon, said: “when 2.5 million people live in a closed-off Gaza, it’s going to be a human catastrophe. … The pressure at the border will be awful. … So, if we want to remain alive, we will have to kill and kill and kill. All day, every day….If we don’t kill, we will cease to exist.” And when challenged again in 2007about “Israel’s willingness to do what he prescribes… – i.e., put a bullet in the head of anyone who tries to climb over the security fence,” Soffer replied with a shrug:. “If we don’t, we’ll cease to exist.”

 

Soffer’s only plaint: “The only thing that concerns me is how to ensure that the boys and men who are going to have to do the killing will be able to return home to their families and be normal human beings.” A reprise of Golda Meir’s “shooting and crying” lament; “We can never forgive [the Arabs] for forcing us to kill their children.” Ingénue mourning, anyone?

 

We can point out the factual errors and concrete cruelties that all these apologias rely on.

We can point out that Hamas did not “orchestrate” these demonstrations, and that the thousands of Gazans who are risking their lives are not instruments. “You people always looked down at us,” one Gazan toldAmira Hass, “so it’s hard for you to understand that no one demonstrates in anyone else’s name.”

 

We can point out that the fence the Israelis are defending is not a “border” (What country are the Gazans in?), but the boundary of a ghetto, what Conservative British PM David Cameron calleda giant “prison camp” and Israeli scholar Baruch Kimmerling called“the largest concentration camp ever to exist.” It’s a camp that tens of thousands of Palestinians were forced into by the Zionist army. The right of those families (80% of Gaza’s population) to leave that confinement and go home is a basic human right and black-letter international law.

 

We can point out that Gazans aren’t just trying to cross a line in the sand, they are trying to break a siege,and that: “The blockade is by definition an act of war, imposed and enforced through armed violence. Never in history have blockade and peace existed side by side. …There is no difference in civil law between murdering a man by slow strangulation or killing him by a shot in the head.” Those were, after all, thewords ofIsraeli Foreign Minister Abba Eban, when he was justifying Israel’s attack on Egypt in 1967. And they are confirmed today by New York judge Mary McGowan Davis, who says: “The blockade of Gaza has to be lifted immediately and unconditionally.”

 

We can point out that there can be no excuse in terms of modern international law or human rights principles for Israel’s weeks-long “calculated, unlawful” (HRW) mass killing and crippling or unarmed protestors who were standing quietly, kneeling and praying, walking away, and tending to the wounded hundreds of meters from any “fence”—shootings carried out not in any “fog of war” confusion, but with precise, targeted sniper fire (which, per standard military practice, would be from two-manteams).

As the IDF bragged, in a quickly deleted tweet:  “Nothing was carried out uncontrolled; everything was accurate and measured, and we know where every bullet landed.” Indeed, as Human Rights Watch reports, senior Israeli officialsorderedsnipers to shoot demonstrators who posed no imminent threat to life, and many demonstrators were shot hundreds of meters, and walking away, from the fence.

 

We can point out that the IDF’s quick deletion of that tweet indicates its consciousness of guilt awareness, in the face of proliferating images of gruesome, unsupportable casualties, of how bad a Rosner-like “no apology, no regrets” discourse sounds. After all, it’s hard, since they “know where every bullet landed,” not to conclude the Israelis deliberately targeted journalists and medical personnel, who were never threatening to “violate [Israel’s] territorial integrity.” There have been at least 66 journalists wounded and 2 killedwearing clearly marked blue “PRESS” flak jackets. And everyone should see the powerful interviewwith Canadian doctor, Tarek Loubani, who was shot in the leg, describing how, after six weeks with no paramedic casualties, suddenly:

“in one day, 19 paramedics—18 wounded plus one killed—and myself were all injured, so—or were all shot with live ammunition. We were all… away during a lull, without smoke, without any chaos at all, and we were targeted…So, it’s very, very hard to believe that the Israelis who shot me and the Israelis who shot my other colleagues… It’s very hard to believe that they didn’t know who we were, they didn’t know what we were doing, and that they were aiming at anything else.”

 

It was on another day that this 21-year-old “nominal civilian” nurse, Razan al-Najjar, was killedby an Israeli sniper while tending to the wounded.

 

Of course, pointing all this out won’t mean anything to these apologists or to those who give them a platform. Everybody knows the ethico-political double standard at work here. No other country in the world would get away with such blatant crimes against humanity without suffering a torrent of criticism from Western politicians and media pundits, including every liberal and conservative Zionist apologist cited above. Razan’s face would be shining from every page and screen of every Western media outlet, day after day, for weeks. Even an “allied” nation would get at least a public statement or diplomatic protest; any disfavored countries would face calls for punishment ranging from economic sanctions to “humanitarian intervention.” Israel gets unconditional praisefrom America’s UN Ambassador.

Indeed, if the American government “defended” its own actual international border in this way, liberal Zionists would be on the highest of moral saddles excoriating the Trump administration for its crime against humanity. And—forgetting, as is obligatory, the thousands of heavily-armed Jewish Zionists who regularly force their way across actual international borders with impunity—if  some Arab country’s snipers killed hundreds and wounded tens of thousands of similarly unarmed Jewish Zionist men, women, children, and paraplegics who were demonstrating at an actual international border for the right to return to their biblical homeland, we all know the howling and gnashing of morally outraged teeth that would ensue from every corner of the Western political and media universe. No “Guarding the border was more important than avoiding killing” would be published in the NYT,or tolerated in polite company, for that scenario.

 

Nathan J. Robinson got to the bottom line in his wonderful shreddingof Rosner’s argument, it comes down to: “Any amount of Palestinian death, however large, was justified to prevent any amount of risk to Israelis, however small.” Western governments and media have fashioned, and are doing their utmost to sustain, an ethico-political universe where Israel canlay siege to a million people, ‘bomb them occasionally,’ and then kill them when they show up at the wall to throw rocks.”

 

Is there a way anymore of not seeing the racism of Zionism? Can we just say, once and for all, that the interests of Palestinians—not as pitiable creatures but as active, fully, enfranchised human beings—are not anywhere on the list of Soffer’s or Dichter’s or Rosner’s (or the Western media’s or governments’) priorities, and refuse any of their pitifully disingenuous expressions of concern for the Palestinians’ benefit? Nobody gets to put “For your own benefit,” in front of “Surrender or I’ll put a bullet in your head.” The onlyconcern any of these commentators have for the people of Gaza is that they submissively accept their forced displacement and imprisonment in “the largest concentration camp ever to exist.”

 

Does the vulgarity of it shock you?

 

The “human shields, human sacrifice” trope, which all these apologias hang on, is particularly mendacious and hypocritical as used by Zionists. It’s also a classic example of projection.

This is a “human shield”:

It is Israel which has repeatedly used the specific, prohibitedtactic of using children as “human shields” to protect its military forces. According tothe U.N. Committee on the Rights of the Child, Israel is guilty of the “continuous use of Palestinian children as human shields and informants.” Besides this namby-pamby UN Committee that no red-blooded American/Zionist would pay any attention to, the High Court of Justice in Israel identified and denounced the “human shield” procedures the IDF acknowledged and defended using 1,200 times. These include “the ‘neighbor procedure,’ whereby neighbors of wanted Palestinians are forced to go into the wanted man’s house ahead of troops, in case it is booby-trapped,” andIsraeli “soldiers forcibly position[ing] members of [a] family, including the children, at the windows of [a] home and proceed[ing] to fire from behind them.”

So, when Zionists use a “human shields” argument as a moral cudgel against unarmed civilian protestors, and a moral justification for a powerful army, which brazenly uses children to shield its own soldiers, killing scores of those protestors by the day—well, it’s not a stretch to see this charge is a projection of Zionists’ own pattern of thought and behavior.

 

Besides being an ongoing tactic of today’s Israeli army, “human shields” and the “human sacrifice” they imply were an integral element of the Zionist narrative—expressly articulated and embraced, with no apology, as a necessity for the establishment of a Jewish State.

 

Take a look at what Edward Said in 2001 called: “the main narrative model that [still] dominates American thinking” about Israel, and David Ben-Gurion called“as a piece of propaganda, the best thing ever written about Israel.” It’s the “’Zionist epic’…identified by many commentators as having been enormously influential in stimulating Zionismand support for Israelin the United States.” In this piece of iconic American culture, an American cultural icon—more sympathetically liberal than whom there is not—explains why he, as a Zionist, is not bluffing in his threat to blow up his ship and its 600 Jewish refugees if they are not allowed to enter the territory they want:

 

–You mean you’d still set it [200 lbs. of dynamite] off, knowing you’ve lost?…Without any regard for the lives you’d be destroying?…

Every person on this ship is a soldier. The only weapon we have to fight with is our willingness to die.

–But for what purpose?”

Call it publicity.

Publicity?

Yes, publicity. A stunt to attract attention….Does the vulgarity of it shock you?

More Zionist tough love.

 

In the face of the scurrilous “human shield” accusation against Palestinians now being used to denigrate the killed, maimed, and still-fighting protestors in Gaza, we would do well to recall Paul Newman’s Zionist-warrior, “no apology,” argument for 600 telegenically deadJewish men, women, and children as a publicity stunt to gain the sympathy of the world.

 

Lest we dismiss this as a fiction, remember that Paul Newman’s fictional boat, Exodus, is based on a real ship, the SS Patria. In 1940, the Patriawas carrying 1800 Jewish refugees from Nazi-occupied Europe whom the British authorities refused entry into Palestine. While the Patria was in the port of Haifa, it was blown up and sunk by Munya Mardoron the orders of the Haganah, which did not want Jewish refugees going anywhere but Palestine. At least 267 people were killed. The Haganah put out the story that the passengers had blown up the ship themselves – a story that lasted 17 years, nourishing the imagination of Leon Uris, author of the Exodus fiction. This wasn’t a commander or leading organization urging people to knowingly take a deadly risk in confronting a powerful enemy; it was “their” self-proclaimed army blowing its people up with no warning—and then falsely claiming they did it to themselves! Nobody who wouldn’t use “bottomlessly cynical” to denigrate the Haganah should be using it to denigrate Gazans.

 

At a crucial moment in history, it was Zionists who practiced a foundational “human shield” strategy, holding the victims of Nazism “hostage” to the Zionist “statehood” project – as none other than the publisher of the New York Times, Arthur Hays Sulzberger, recognized and criticized:

I cannot rid myself of the feeling that the unfortunate Jews of Europe’s D. P. [Displaced Persons] camps are helpless hostages for whom statehood has been made the only ransom. …[W]hy in God’s name should the fate of all these unhappy people be subordinated to the single cry of Statehood?

 

The Exodus/Patria/Paul Newman/Haganah willingness to blow up hundreds of Jewish refugees in order to force their way into a desired territory was an attitude endemic to the Zionist movement, and enunciated quite clearly by its leader, David Ben-Gurion, as early as 1938: “If I knew it was possible to save all [Jewish] children of Germany by their transfer to England and only half of them by transferring them to Eretz-Yisrael, I would choose the latter.” You want human sacrifice?…

 

(Sulzberger, by the way, “opposed political Zionism not solely because of the fate of Jewish refugees because he disliked the ‘coercive methods’ of Zionists in this country who use economic means to silence those with differing views.” Yes, the NYT!  So change is possible.)

 

What’s Right Is Wrong

 

And here’s the thing: You want to call what the Gazans did—coming out unarmed by the thousands, knowing many of them would be killed by a heavily-armed adversary determined to put them down by whatever means necessary—a “politics of human sacrifice”? You are right.

Just as you’d be right to say that of the Zionist movement, when it was weak and faced with much stronger adversaries. And just as you’d be right to say it of the unarmed, non-violent Civil Rights Movement, when it faced the rageful determination of the immensely more powerful American South, to preserve the century-old Jim Crow apartheid that wasits identity, by whatever means necessary.

 

Princeon Professor Eddie Glaude, Jr. nailed it when, to the visible discomfort of his MSNBC co-panelists, he respondedto the invocation of the White House line that it’s “all Hamas’ fault and that they’re using them as tools for propaganda,” with: “That’s like saying to the children in the Children’s March of Birmingham it was their fault that Bull Connor attacked them.”

 

Civil-rights activists did put children on the front lines, and put their own and those children’s lives in danger to fight and defeat Jim Crow. They knew there were a lot of people armed and willing to kill them. And children, as well as activists, were killed. And those actions weresupported (but by no means “orchestrated”) by “extremist” organizations—i.e., the Communist Party. At the time, conservatives attacked Freedom Riders with the same arguments that Zionists are now using to attack Gaza Return Marchers.

All unarmed, non-violent but disruptive, Gandhian strategies to eliminate entrenched systems of colonial-apartheid rule will knowingly sacrifice many lives to attain their victory. Call it a politics of human sacrifice if you want. I won’t make any ingénue objections. But it’s not a sign of the subjugated people’s cynicism; it’s a result of their predicament.

“Human sacrifice” defines the kind of choices a desperate and subjugated people are forced to make in the face of armed power they cannot yet overcome. A militarily-weak insurgent/liberation movement must use an effectively self-sacrificing strategy of moral suasion. That is now a standard and powerful weapon in political struggle. (Though moral suasion alone will not win their rights. Never has. Never will.)

 

For Gazans, it’s the choice between living in a hell of frustration, misery, insult, confinement, and slow death, or resisting and taking the high risk of instant death. It’s the choice faced by people whose “dreams are killed” by Israel’s siege and forced expulsion, and who are willing to risk their lives  “for the world’s attention.” Young men like Saber al-Gerim, for whom, “It doesn’t matter to me if they shoot me or not. Death or life — it’s the same thing.” Or the one who told Amira Hass: “We die anyway, so let it be in front of the cameras.” Or 21-year-old Fathi Harb, who burned himself to death last Sunday. Or Jihadi al-Najjar, who had to make the choice between continuing to care for his blind father (“He was my sight. He helped me in everything, from going to the bathroom to taking a shower to providing for me…I saw life through Jihadi’s eyes.”) or being killed by an Israeli sniper while, as his mother Tahani says “defending the rights of his family and his people.”

 

Tough choices, to get the world’s attention. This is the kind of choice imposed on the untermenschen of colonial-apartheid regimes. The only weapon they have is their willingness to die. But Gazans won’t get the sympathetically-anguished Paul Newman treatment. Just “bottomlessly cynical.”

 

Paul’s choice, Sophie’s choice, is now Saber’s and Jihad’s and Fathi’s, and it’s all bad. Maybe some people—comrades and allies in their struggle—have a right to say something about how to deal with that choice. But the one who doesn’t, the one who has no place to say or judge anything about that choice, is the one who is forcing it. Those who are trying to fight their way out of a living hell are not to be lectured to by the devil and his minions.

So, yes, in a very real sense, for the Palestinians, it is a politics of human sacrifice—to American liberals, the gods who control their fate.

 

By choosing unarmed, death-defying resistance, Palestinians are sacrificing their lives to assuage the faux-pacifist conscience of Americans and Europeans (particularly, I think, liberals), who have decreed from their Olympian moral heights that any other kind of resistance by these people will be struck down with devastating lightning and thunder.

 

Funny, that these are the same gods the Zionists appealed to to seize their desired homeland, and the same gods the civil-rights activists appealed to to wrest their freedom from local demons of lesser strength. Because, in their need to feel “sympathy and pity,” the sacrifice of human lives seems the only offering to which these gods might respond.

 

The Nakba Is Now

 

The Israelis and their defenders are right about something else: They cannot allow a single Gazan to cross the boundary. They know it would be a fatal blow to their colonial-supremacist hubris, and the beginning of the end of Zionism—just as Southern segregationists knew that allowing a single black child into the school was going to be the beginning of the end of Jim Crow. Palestinians gaining their basic human rights means Israeli Jews losing their special colonial privileges.

 

As Ali Abunimah points out, Arnon Soffer was right, when he said: “If we don’t kill, we will cease to exist,” and Rosner, when he said the Gazans threatened the “elimination of Israel.” To continue to exist as the colonial-apartheid polity it is, Israel must maintain strict exclusionist, “noright of return,” policies. Per Abunimah: “the price of a ‘Jewish state’ is the permanent and irrevocable violation of Palestinians’ rights…If you support Israel’s “right to exist as a Jewish state” in a country whose indigenous Palestinian people today form half the population, then you… must come to terms with the inevitability of massacres.”

 

What’s happening in Gaza is not only, as Abunimahsays, a “reminder… of the original sin of the ethnic cleansing of Palestine and the creation of a so-called Jewish state,” it is a continuation of that unfinished work of the devil. The Nakba is now.

 

 

I’m all for everybody on both sides of the issue to be aware of the stakes and risks in this struggle, without any disingenuous denials.

 

 

Whether you sympathize with, or denigrate, the choices of people who put their own, their comrades’, and even their children’s, lives at risk is not determined by whether some tactical choices can be characterized as “human shields, human sacrifice”; it’s determined by what they’re fighting for, and what and whom they are fighting against, anwhere your solidarity lies.

 

 

Stage Left

 

Here’s the core of the disagreement about Gaza (and Palestine in general): There are those—they call themselves Zionists—who think the Palestinians deserve to have been put in that concentration camp, and who stand in solidarity with the soldiers who, by whatever means necessary, are forcing them to stay there. And there are those—the growing numbers who reject Zionism—who stand in solidarity with every human being trying to get out of that camp by whatever means necessary.

 

There’s a fight—between those breaking out of the prison and those keeping them in; between those seeking equality and those enforcing ethno-religious supremacism; between the colonized and the colonizer. Pick a side. Bret Stephens, Shmuel Rosner, and Tom Friedman have. The New York Times, The Washington Post, and Breitbart have. ABC, CBS, (MS)NBC, and Fox have. The Democrats and Republicans and the Congress and the White House have. And they are not shy about it.

 

It’s past time for American progressives to clearly and unequivocally decide and declare which side they are on. It’s time for professedly humanitarian, egalitarian, pro-human rights, anti-racist, and free-speech progressives to express their support of the Palestinian struggle—on social media, in real-life conversation, and on the street.

 

It’s time to firmly reject the hypocritical discourse of those who would have been belittling any expression ofsorrow and outrage over Emmet Till, Chaney, Schwerner and Goodman, and the four black schoolgirls killed in Birmingham, while “ingénue mourning” the terrible moral quandary in which those disrupters had put Bull Connor’s boys. Don’t shrink from it, talk back to it—every time.Make them ashamed to be defending colonialism and apartheid with such patently phony arguments.

 

Politically? At a minimum, demand of any politician who seeks your vote: End the blockade of Gaza, immediately and unconditionally. Support BDS. Refuse any attempt to criminalize BDS and anti-Zionism. Stop blocking UN and ICC actions against Israeli crimes. Restrict arms sales to Israel. Reject the hypocritical Zionist apologetics. Refuse any attempt to censor or restrict the internet. (This last is very important. Nothing has threatened Zionist impunity more than the information available on the internet, and nothing is driving the demand to censor the internet more than the Zionists’ need to shut that off.)

 

This is a real, concrete, important resistance. What’ll it cost? Some social discomfort? It’s not sniper fire. Not human sacrifice. Not Saber’s choice.

 

Are we at a turning point? Some people think this year’s massacre in Gaza will finally attract a sympathetic gaze from the gods and goddesses of the Imperial City. Deliberately and methodically killing, maiming, and wounding thousands of unarmed people over weeks—well, the cruelty, the injustice, the colonialism is just too obvious to ignore any longer. And I hope that turns out to be so. And I know, Natalie Portman and Roger Waters and Shakira, and—the most serious and hopeful—the young American Jews in groups like Students for Justice in Palestine and IfNotNow. There are harbingers of change, and we must try.

I also know there is nothing new here. Thirty years ago, a doctor in Gaza said: “We will sacrifice one or two kids to the struggle — every family. What can we do? This is a generation of struggle.” It was obvious thirty years ago, and forty years before that. TheNakbawas then. The Nakbais now. Was it ever not too obvious to ignore?

My mother was an actress on Broadway, who once came to Princeton University to share the stage, and her professional skills, with Jimmy Stewart and other amateur thespians. She played the ingénue. Me, I’m not so good at that.

By all means, regarding Palestine-Israel and the sacrifices and solidarity demanded: No more ingénue politics.

 

Article printed from http://www.counterpunch.org: ‪https://www.counterpunch.org

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

 

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(5) Israeli army frames slain medic Razan al-Najjar as ‘Hamas human shield’

 

 

 

Mondoweiss7 June 2018 by Jonathan Ofir –

 

Just when you thought Israel couldn’t get any lower… The Israeli army has just released an incitement video, titled “Hamas’ use of human shields must stop”, in which it frames the slain medic Razan al-Najjar as a “Hamas human shield”– a day after it claimed she was killed by accident. This is more than adding insult to injury. This is adding malice to crime. The propaganda effort is based on twisting al-Najjar’s own words. I have consulted with three Arabic experts, who have looked at the original Arabic interview from which the IDF took the “human shield” text, and it is clear to them beyond a doubt that the IDF was knowingly and cynically manipulating Razan’s words to mean something other than what she said. Bear with me, this requires close analysis: First the video features Razan throwing away a gas grenade in the field.  Obviously, this is one of the tear gas grenades fired by the Israeli army, which she is taking up and throwing to a safe distance. By this visual, the IDF is trying to create the impression that Razan is a kind of ‘combatant’. Then comes the short clip from an interview. The original interview has been found to be from Al Mayadeen News, a channel based in Beirut. The IDF video runs subtitles, saying: “I am Razan al-Najjar, I am here on the frontlines and I act as a human shield…” That’s all the IDF needs. Now, with the ominous music in the background, the IDF text states: “Hamas uses paramedics as human shields”. But the IDF cut out a very significant part of the sentence. Razan actually says: “I the Paramedic Razan al-Najjar, I am here on the Front Line acting as a human shield of safety to protect the injured at the Front Line. No one encouraged me on being a Paramedic, I encouraged myself. I wanted to take chances and help people…” (my emphasis)….

http://mondoweiss.net/2018/06/israeli-frames-najjar/

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