Tag Archives: two-state consensus

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.

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How the United States Government Obstructs Peace for Israel/Palestine

23 Jul

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

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

 

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

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

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

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

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

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

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

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

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

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

Richard Falk

Yalikavak, Turkey

August 2015 

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