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Should the Palestinians Seek Justice NOW at the International Criminal Court?

23 Feb

Should the Palestinians Seek Justice NOW at the International Criminal Court?

 

[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]

 

 

Weakening the Two-State Consensus

 There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.

 

With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.

 

An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.

 

In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.

 

Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”

 

It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.

 

Recourse to the ICC: Pros and Cons

 

The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.

 

The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.

 

There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.

 

Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.

 

There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.

 

Conclusion

 

In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.

 

The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.

Smearing BDS Supporters

4 Jul

 

 

[Prefatory Note: An earlier version of this post was published with the title, “The Palestinian Struggle for Self-Determination: A New Phase?” in Middle East Eye, June 26, 2016. This version stresses the misappropriation of anti-Semitism as a propaganda weapon to smear pro-Palestinian activists, especially those supportive of the BDS Campaign. It also clarifies the issues of representation by explaining the formal differences between the PLO and PA, which do not seem presently consequential in my understanding; I am indebted to Uri Davis for bringing the distinction to my attention although he may not agree with my way of handling it.]

 

End of the Road?

 

There are many reasons to consider the Palestinian struggle for self-determination a lost cause. Israel exerts unchallenged paramilitary control over the Palestinian people, a political reality accentuated periodically by brutal attacks on Gaza causing massive civilian casualties and societal dislocation. Organized Palestinian armed resistance has all but disappeared, limiting anti-Israeli violence to the desperation of individual Palestinians acting on their own and risking near certain death by striking spontaneously with primitive knives at Israelis encountered on the street, especially those thought to be settlers.

 

Furthermore, the current internal dialogue in Israel is disinclined to view ‘peace’ as either a goal or prospect. This dialogue is increasingly limited to whether it seems better for Israel at this time to proclaim a one-state solution that purports to put the conflict to an end or goes on living with the violent uncertainties of a status quo that hovers uncomfortably between the realities of ‘annexation’ and the challenges of ‘resistance.’ Choosing this latter course means hardening the apartheid features of the occupation regime established in 1967. It has long had the appearance of a quasi-permanent arrangement that is constantly being altered to accommodate further extensions of the de facto annexations taking place within the Palestinian territorial remnant that since the occupation commenced was never more than 22% of British administered Palestine. It is no secret that the unlawful Israeli settlement archipelago is constantly expanding and Jerusalem is becoming more Judaized to solidify on the ground Israel’s claim of undivided control over the entire city.

 

Israel feels decreasing pressure, really no pressure at all aside from the ticking bomb of demographics, to pretend in public that it is receptive to a negotiated peace that leads to the establishment of an independent Palestinian state. The regional turbulence in the Middle East is also helpful to Israel as it shifts global attention temporarily away from the Palestinian plight, giving attention instead to ISIS, Syria, and waves of immigrants threatening the cohesion of the European Union and the centrist politics of its members. This gives Israel almost a free pass and Palestinian grievances have become for now a barely visible blip on the radar screens of public opinion.

 

Recent regional diplomacy strengthens Israeli security. Both Saudi Arabia and Turkey seek normalized relationships with Israel, Egypt is again supportive of Israeli interests, and the rest of the region is preoccupied with internal strife and sectarian struggles. Even without the United States standing in the background giving unconditional security guarantees, ever larger aid packages, and serving as dutiful sentry in international institutions to block censure moves, Israel has never seemed as secure as it is now. The underlying question that will be answered in years to come is whether this impression of security is appearance or reality.

 

Yet even such a reassuring picture from Israel’s perspective, while accurate as far as it goes, creates misimpressions unless we consider some further elements. There exist a series of reasons for the Palestinians to believe that their struggle, however difficult, is not in vain. Although the French initiative to revive bilateral negotiations is unlikely to challenge effectively Israel’s unilateralism, it does suggest a possibly emerging European willingness to raise awkward questions about the continued viability of the United States claim to be exclusively entitled to act as the international intermediary of the conflict. The Oslo framework that has dominated international diplomacy since 1993 was fatally flawed from its inception by allowing the United States to play this brokering role despite its undisguised partisanship. How could the Palestinians ever be expected to entrust their future to such a skewed ‘peace process’ unless compelled to do so as a result of their weakness? And from such weakness and skewed diplomacy only fools and knaves would expect a sustainable peace based on the equality of the two peoples to follow.

 

This diplomacy was exposed for the charade it was, especially by the subversive impact of continuous Israeli unlawful settlement expansion that was dealt with by Washington with diminishing expressions of disapproval. And yet this diplomatic charade was allowed to go on because it seemed ‘the only game in town’ and it had the secondary political advantage of facilitating without endorsing Israel’s ambitions with respect to land-grabbing.

 

A question for the future is whether the French, or the Europeans, can at some point create a more balanced alternative diplomacy that serves both parties equally and conditions diplomatic engagement upon compliance with international law. Such a possibility seems at last to being tested, however tentatively and timidly, and even this modest challenge seems to be worrying Tel Aviv. The Netanyahu leadership is suddenly once more proposing yet another round of futile Oslo negotiations with the apparent sole purpose of undermining this French innovative gesture in case it unexpectedly gains political traction.

 

Realistically viewed, there is no present prospect of a political compromise achieving a sustainable peace. There needs first to be a change of leadership and political climate in Israel coupled with a more overall balance of international forces than has existed in the past. It is here we witness the beginnings of a new phase in the national struggle that the Palestinians have waged ever since the nakba occurred in 1948. Gone are the hopes of Palestinian rescue by the liberating armies of Arab neighbors or later, through organized Palestinian armed resistance. Gone also is the vain hope of a negotiated peace that delivers on the vain promise of an end to Israeli occupation and the birth of a genuinely sovereign Palestinian state within 1967 borders.

 

Palestinian ‘Statehood’

 

The Palestinian Liberation Organization (PLO)/Palestinian Authority (PA) [PLO represents the entirety of the Palestinian people whereas the PA technically represents only those Palestinians living under occupation; as a practical matter the two entities overlap, even merge, as Mahmoud Abbas is both Chair of the PLO and President of the PA; it is possible that as some point these two Palestinian organizations will act and operate separately and even at odds with one another] continue to represent the Palestinian people in global settings, including at the UN. Many Palestinians who are living under occupation and in exile consider the PA/PLO to be both ineffectual and compromised by corruption and quasi-collaboration with the occupiers. The PA/PLO on its side, after going sheepishly along with the Oslo process for more than twenty years, has begun finally to express its disillusionment by pursuing a more independent path to reach its goals. Instead of seeking Israel’s agreement to a Palestinian state accompanied by the withdrawal of its military and police forces, the PA/PLO is relying on its own version of diplomatic unilateralism to establish Palestinian statehood as well as trying to initiate judicial action to have Israeli policies and practices declared unlawful, even criminal.

 

In this regard, after being blocked by the United States in the Security Council, the PLO/PA obtained a favorable vote in the General Assembly according it in 2012 the status of ‘non-member statehood.’ The PA used this upgrading to adhere as a party to some widely ratified international treaties, to gain membership in UNESCO, and even to join the International Criminal Court. A year ago the PLO/PA also gained the right to fly the Palestinian flag alongside the flags of UN members at its New York headquarters.

 

On one level such steps seem a bridge to nowhere as the daily rigors of the occupation have intensified, and this form of ‘statehood’ has brought the Palestinian people no behavioral relief. The PLO/PA has established ‘a ghost state’ with some of the formal trappings of international statehood, but none of the accompanying governance structures and expectations associated with genuine forms of national sovereignty. And yet, Israel backed by the United States, objects strenuously at every step taken along this path of virtuality, and is obviously infuriated, if not somewhat threatened, by PLO/PA initiatives based on international law. Israel’s concern is understandable as this PLO/PA approach amounts to a renunciation of ‘the Washington only’ door to a diplomatic solution, and formally puts Israel in the legally and morally awkward position of occupying indefinitely a state recognized by both the UN and some 130 governments around the world. In other words, as we are learning in the digital age, what is virtual can also become real.

 

 

Recourse to BDS

 

There are other potentially transformative developments complicating an overall assessment. Partially superseding earlier phases of the Palestinian struggle is a growing reliance on global civil society as the decisive site of engagement, and a complement to various ongoing forms of non-cooperation, defiance, and resistance on the ground. The policy focus of the global solidarity movement is upon various facets of the boycott, divestment, and sanctions campaign (or simply BDS) that is gaining momentum around the world, and especially in the West, including on American university campuses and among mainstream churches. This recourse to militant nonviolent tactics has symbolic and substantive potential if the movement grows to alter public opinion throughout the world, including in Israel and the United States. In the end, as happened in South Africa, the Israel public and leadership just might be induced to recalculate their interests sufficiently to become open to a genuine political compromise that finally and equally safeguarded the security and rights of both peoples.

 

At this time, Israel is responding aggressively in a variety of rather high profile ways. Its official line is to say that its continued healthy rate of economic growth shows that BDS is having a negligible economic impact. Its governmental behavior suggests otherwise. Israeli think tanks and government officials now no longer hide their worries that BDS poses the greatest threat to Israel’s preferred future, including increasing isolation and perceptions of illegitimacy. As one sign of the priority accorded this struggle against BDS, the Israeli lobby in the United States has enlisted the Democratic Party and its presidential candidate has signed up to bea militant anti-BDS activist. At the heart of this anti-BDS campaign is what is being increasingly identified as ‘a new McCarthyism,’ the insidious effort to attach punitive consequences for those who are overtly pro-BDS.

 

 

Smearing BDS

 

In this vein, Israel has launched its own campaign to punish and intimidate those who support BDS, and even to criminalize advocacy. The Israeli lobby has been mobilized around this anti-BDS agenda in the United States, pushing state legislatures to pass laws that punish corporations that boycott Israel by denying them access to the domestic market or declare that BDS activism is a form of hate speech that qualifies as virulent anti-Semitism. Israel is even seeking common cause with liberal Zionist J Street in the US to work together against BDS, an NGO that it had previously derisively dismissed. Support for Israel from the Clinton presidential campaign includes two disgraceful features: an explicit commitment to do what it can to destroy BDS and a promise to upgrade the special relationship still further, openly overcoming the friction that was present during Obama presidency.

 

It is not new, of course, to brand critics of Israel as anti-Semites. Those of us who have tried to bear witness to Israeli wrongdoing and promote a just outcome have been attacked with increasing venom over the course of the last decade or so. The attack on pro-Palestinian members of the British Labour Party as anti-Semites is part of this Zionist pushback. What is particularly disturbing is that many Western political leaders echo these defamatory and inflammatory sentiments, including even the current UN Secretary General Ban Ki-moon who seems to be making some feeble amends as his term nears its end. Israel has no compunctions about attacking the UN as hostile and biased, while when convenient invoking its authority to discredit critics.

 

This inflation of the idea of anti-Semitism to cover activities protected by free speech and in the realm of responsible debate and citizen activism is on its own a regressive maneuver that deflects attention from the virulent history and outlook of those who hate Jews as individuals and support their persecution as a people. To attenuate the meaning of anti-Semitism in this way is to make the label much less ethically clear as it is improperly used to denigrate what should be permissible and even favored as well as what is properly condemned and socially rejected. To blur this boundary is to weaken the consensus on anti-Semitism that formed throughout the world after the Holacaust.

 

It is notable that this latest phase of Palestinian national struggle is mainly being waged nonviolently, and in a manner that accords with the best traditions of constitutional democracy. That Israel and Zionist hardliners should be opposing BDS by an ugly smear campaign exposes Israel’s vulnerability when it comes to the legitimacy of its policies and practices, and should give the Palestinians hope that their cause is far from lost.

The Complex Problematics of Palestinian Representation

30 Jan

 

 

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

 

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

 

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

 

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

 

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

 

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

 

Representation at the UN

 

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

 

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

 

The Oslo Diplomatic Fiasco

 

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

 

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

 

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

 

Interrogating the Palestinian Authority

 

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

 

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

 

What Should be Done

 

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

 

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

 

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

 

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

 

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

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

21 Jul

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

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Zombie Ideas and the Presbyterian Divestment Decision

21 Jun

 

 

At this moment it is right to celebrate unreservedly  the outcome of the vote in Presbyterian General Assembly decreeing the divestment of $21 million worth of shares in Motorola Solutions, Hewlett-Packard, and Caterpillar, companies long and notoriously associated with implementing Israel’s unlawful occupation policies in the West Bank, Jerusalem, and Gaza. This carries forward the momentum of the BDS Campaign and recent efforts emanating from the UN and the EU to induce governments, as well as corporations and financial institutions to become aware that it is increasingly viewed as problematic under international law to profit from dealings with Israel’s settlements and occupation security mechanisms.

 

It is much too soon to suggest a cascading effect from recent moves in this direction, but the mainstreaming of the divestment and boycott campaigns in a major achievement of the Palestinian Solidarity Movement that is displacing the moribund ‘peace process’ that in recent months dramatized the extent to which the Israeli Government is not interested in a favorable negotiated solution even as mediated by partisan U.S. mediation mechanisms and in relation to a weak Palestinian Authority that seems readier to offer concessions than to seek compromises that incorporate Palestinian rights under international law.

 

The Presbyterian decision, itself vetted by an elaborate debate and producing a text crafted to narrow the distance between supporters and opponents of divestment did not address issues of context such as Israel’s formal approval of settlement expansion, the Knesset election of a new Israeli president, Reuven Rivlin*, who favors the annexation of the entire West Bank and Jerusalem, and the collapsed negotiations between the parties prompted a year ago by the Kerry diplomatic onslaught. In this regard the Presbyterian decision includes language affirming Israel’s right to exist, encouraging inter-faith dialogue and visits to the Holy Land, distancing the divestment move from BDS, urging a ‘positive investment’ in activities that improves the lives of both Palestinians and Israelis, and endorsing the two-state solution should be understood mainly as expressions of intra-Presbyterian politics, and not be interpreted as serious substantive positions. Such an interpretation of what is significant and what is not about this outcome is reinforced by the reported feverish lobbying of pro-Israeli NGOs against the decision, including by the Anti-Defamation League and taking the form of an open letter to the Assembly signed by 1,700 rabbis from all 50 states that together constitute the United States. The most ardent backers of Israel may now pooh-pooh the decision, but this seems like sour grapes considering their all out effort made to avoid such a pro-divestment result, which is sure to have a variety of ripple effects.

 

  • Mr. Rivlin, a Likud Party member of the Knesset, is a follower of the rightest inspirational figure, Ze’ev Jabotinsky, an early Zionist leader who favored a Jewish state encompassing the whole of historic Palestine. At the same time Rivlin is a social and political liberal favoring equal rights for Jews and Palestinians, including giving Palestinians the vote and the chance to govern if they achieve electoral success. Netanyahu, also from Likud and a follower of Jabotinsky, has claimed since 2009 conditionally to support the establishment of some kind of Palestinian state, but acts as if this will never happen under his watch, and in the meantime is totally illiberal in his support for harsh rule in occupied Palestine.

 

 

Because it reflects false consciousness, it may not be too soon to challenge the Presbyterian text for its ‘endorsement’ of the two-state solution. It seems to me to illustrate what Paul Krugman in another context called ‘the Zombie doctrine,’ namely, the retention of an idea, thoroughly discredited by evidence and the realities of the situation, but somehow still affirmed because it serves useful political purposes. Here, it enables the church divestment move to be reconciled with signals that the Prsebyterian Church is not departing from the official consensus among Western governments and the Palestinian Authority as to how the conflict is to be finally resolved. What this overlooks is the utter disdain for such a solution that is evident in Israel’s recent behavior, as well as the situation created by a half million Israeli settlers and over 100 settlements.

 

Some suggest that the Palestinian Authority is equally responsible for the diplomatic breakdown because it acted like a state by signing on to some international conventions angering Israel and then establishing a technocratic interim government as part of a reconciliation agreement with Hamas that angered Israel even more. It seems clear enough that if Israel had been genuinely interested in a grand accommodation with the Palestinians it would welcome such moves as creating the political basis for a more sustainable peace. More significantly, these moves by the PA followed upon overtly provocative announcements by Israeli official sources about approving plans for major settlement expansions and were overtly linked to Israel’s failure to follow through with agreed arrangements for the release of Palestinian prisoners. Despite Kerry’s cajoling and pleading with the Israeli leadership to keep the diplomatic path open, Israel defied Washington. In this political atmosphere, to retain any credibility among the Palestinians, the PA also had to act as if there was nothing to be gained by keeping the negotiations on life support.

 

With all due respect to the Presbyterian drafters of the text, it is not helpful to Palestinians, Israelis, and even Americans to lengthen the half-life of the two-state solution. Zombie ideas block constructive thought and action. Israeli right-wing advocate of an Israeli one-state solution are coming out of the closet in a manner that expresses their new hopes for their preferred solution. Those who favor a just and sustainable peace should abandon the pretension that separate states are any longer feasible, if ever desirable. It has become important to derail two-state discourse, which is at best now diversionary. The only futures worth pondering under current conditions is whether there will emerge from the ruins of the present either a political community of the two peoples that becomes an Israeli governed apartheid state or somehow there arises a secular and democratic bi-national state with human rights for all ethnicities and religious identities each protected on the basis of equality.