The Palestinian Authority (PA) has now moved a step closer to making good on its threat to go to the International Criminal Court (ICC) and bring charges against Israel. There is little doubt that this was a move Palestinian President Mahmoud Abbas tried desperately to avoid. In the end, he was forced to do it by a combination of U.S.-Israeli rejectionism, Palestinian desperation to do something to try to end Israel’s occupation, and his own many missteps.
Abbas signed on to 18 international agreements after the quixotic attempt to pass a resolution at the United Nations Security Council (UNSC) predictably failed. Among them was the 1998 Rome Statute, which established the ICC and took formal effect in 2002. This is the step that the U.S. and Israel have warned Abbas against most strongly. Among all the “unilateral steps” the Palestinians could take (which, one should note, is no more “unilateral” than any number of actions taken by Israel on a routine basis), this is the one Israel worries about most.
The reason, of course, is obvious. Israel knows it has committed war and other international crimes—some very serious—in the course of its occupation. While Israel generally scoffs and waxes indignant at critical world opinion, it is concerned that being hauled before the ICC could further negatively impact public and elite opinion in Europe, Israel’s main trading partner, where patience with Israeli policies has grown ever thinner.
Abbas knows only too well that he risks losing what little power he has in the West Bank. There are many ways this move can blow up in his face, and most of the roads to success are going to take more time than he has. That he has taken this step testifies to his desperation.
When, on behalf of the Palestinians, Jordan submitted its resolution to the UNSC last month, it did so under tremendous pressure from other Arab states. Abbas and Jordan’s King Abdullah had preferred to wait until France was ready with its own resolution, which the United States had strongly hinted it would support, or at least not oppose. Abbas knew full well that, even if the Palestinian resolution had mustered the nine votes needed to pass the UNSC, Washington would have vetoed it. Approval of the French version, while toothless and lacking a fixed deadline to end Israel’s occupation, would at least have had virtue of demonstrating the international community’s insistence on a two-state solution.
But internal pressure to submit the Palestinian version, as well as the external pressure that turned out to be decisive, seems to have pushed the French version to the back burner, at least for the time being. With the expected failure of the Palestinian resolution at the UNSC, Abbas was forced to carry through with his threat to sign the Rome Statute, a move that many Palestinians, including many in his own Fatah faction, had been clamoring for ever since the 2012 U.N. General Assembly vote that granted Palestine non-member observer state status, thus enabling it to join international agreements and UN specialized agencies.
In the long run, this is a move that could pay off for the Palestinians, but it carries enormous risks, especially to the PA. The most obvious and immediate threats lie with the responses that can be expected from Israel and its most important foreign backer, the new Republican-led U.S. Congress. Many in Congress have made it clear that they intend to push for suspension of aid to the PA if it signs the Rome Statute. And Israel will surely ramp up its settlement expansion and likely once again withhold taxes it collects on the PA’s behalf. The resulting economic impact could very well lead to the PA’s collapse.
That outcome has been forestalled in the past by Israel’s recognition that the security and economic costs it would inherit would be exorbitant. Israeli officials not only allowed their own cooler heads to prevail, but also urged restraint on their friends in Congress. Despite the recent splash the Labor Party made by joining forces with peace process veteran Tzipi Livni, Bibi Netanyahu’s main challenge still comes from his right in the elections scheduled for mid-March, and he can’t afford to look soft on the Palestinians.
That certainly won’t help Abbas. He knows the dangers that confront him. Moreover, the approach to the ICC carries another risk. Even if Abbas survives the Israeli-U.S. response, it is very possible that Hamas will also face charges at the ICC. The case against Hamas, while covering crimes involving far less destruction and loss of life, is also more clear-cut than one likely to be brought by the PA against Israel, whose acts in Gaza and in the day-to-day occupation of the West Bank will require lengthy investigation. Should Hamas find itself on the losing end of the law before Israel does, Abbas’s position is likely to weaken further.
Despite his moves toward internationalization, Abbas still much prefers to work with Washington. U.S. fecklessness in the face of persistent Israeli opposition to any diplomatic initiative, however, has essentially brought him to this Rubicon. And his own clear reluctance to cross it will itself likely diminish the chance of success.
Under the Rome Statute, the Palestinians will not be able to formally file any cases with the ICC prosecutor for 60 days from the date of signing. That time will certainly be used by the Obama Administration, which will no doubt argue that such a filing could bolster the Israeli Right in the critical final days of the election campaign, to pressure the Palestinians against going forward. Still, the repeated failure of the Security Council to address the occupation in any substantive way, coupled with the failed history of the U.S.-brokered peace process, has sent the Palestinian people the message, however unintentionally, that diplomacy and cooperation are dead-end strategies. That is going to lead to more Palestinians embracing the violent paths called for by Hamas and other, considerably more militant, factions.
At the same time, Palestinians have seen the futility of armed struggle over the decades. Failure at the UNSC and joining the ICC — but then forgoing charges against Israel – will only increase Palestinian despair and desperation. That will no doubt lead to more of the kind of “lone wolf” attacks that Israelis endured in 2014.
The one party that could make a difference is the European Union (EU). It can exert serious pressure on Israel of a kind even the United States cannot match. The EU accounts for nearly one-third of Israel’s export business. (By comparison, the U.S. accounts for just under one-quarter). Labeling settlement products (as some EU countries currently require, but don’t generally enforce) could be a first step. And if it is couched as a warning that sterner measures are in the offing, the impact on Israeli thinking could be significant, perhaps even a game-changer.
Indeed, ultimately, that sort of European action is what Israel fears. If the Obama administration wants to see a reversal of the downward spiral its own peace-making efforts have helped create in Israel-Palestine, it could quietly encourage the EU in that direction.
Such a course would be wise. Abbas’s strategy of relying entirely on U.S. help to pull him through has clearly failed, and his reign, whether due to a P.A. collapse or just his own advancing age, will not last much longer. He has no clear heir apparent, so what comes after is a mystery. The United States won’t exert significant pressure on Israel in the near future, and, absent some unanticipated shock, Obama’s successors in the White House are unlikely to spend as much political capital as he has on resolving the conflict. The pressure must come from Europe and from the Palestinians using whatever international tools are at their disposal.
This is, after all, just what was always demanded of the Palestinians—that they pursue their goals without recourse to violence. If a peaceful path to statehood is denied them, ongoing and escalating violence is all we can expect to see.
]]>by Mitchell Plitnick
Like many of us, I’ve been very busy on social media since Israel began its military operation in Gaza. I see a lot of ignorant nonsense there, and it’s not limited to the pro-Israel side. I also see a lot of shoddy thinking and ignorance of the facts. Since [...]]]>
by Mitchell Plitnick
Like many of us, I’ve been very busy on social media since Israel began its military operation in Gaza. I see a lot of ignorant nonsense there, and it’s not limited to the pro-Israel side. I also see a lot of shoddy thinking and ignorance of the facts. Since I had to study up a lot of this for my job as the Director of the US Office of B’Tselem, I thought I might set the record straight.
“War crimes”
Various memes make the rounds in discussions of war crimes. One that I found particularly laughable was “Even the UN says Hamas is committing war crimes but they say Israel only might be.” I’ve also seen defenses of Hamas’ firing of missiles at civilian targets in Israel based on Palestinians’ right of self-defense.
Here is the long and short of it: War crimes are defined as “Serious violations of international humanitarian law constitute war crimes.” That’s going to encompass pretty much every violation that might become a public issue in any conflict.
International law recognizes that civilians are going to be hurt, killed and dispossessed in war. The obligation of combatants is to do all they can to minimize the death and destruction if they do need to operate in areas where it is likely that civilians will be hurt.
As a result, when Israel proclaims its innocence of violating these laws, no matter how suspicious we may be, enforcers of international law cannot declare that war crimes have been committed without an investigation. Reasonable people who are not international lawyers can make assumptions, but the investigation needs to happen, and it is always possible, especially when the conflict involves an area as densely populated as Gaza, that it will turn out that the state in question did its best to avoid civilian casualties. High civilian casualty numbers are not proof, but they obviously raise suspicions.
On Hamas’ side, this is true as well, but Hamas makes no secret of its use of weapons which, by their very nature, cannot be used in a manner that can discriminate between civilian and military targets. So, while the UN or other bodies would still investigate and make a case before taking any action, Hamas is committing war crimes. It’s not unfair to say so.
In this case, however, Israel has declared that the homes of leading Hamas activists (and those of other factions) are legitimate targets. They have, in fact, willfully bombed such houses during these engagements as a result. Unlike the 2002 assassination of Salah Shehade, where Israel claimed (falsely, many say) to have believed Shehade to be alone in the building they bombed, Israel has made no such claims this time around. Therefore, it is also not unfair to say that Israel has committed war crimes in Gaza, even before an investigation.
If not for Iron Dome, there would have been many more Israeli casualties
This statement seems to make sense, but the numbers don’t back it up. A study done through July 14, when rocket fire into Israel was at its most intense, showed that the number of rockets being fired from Gaza was fewer than in Operation Cast Lead and the frequency of hits was about the same.
I’m all for Iron Dome. Any defensive system whose purpose is to protect civilians is something I consider an absolute positive, and I only wish more countries would invest in such systems, endeavoring to protect, rather than avenge, their civilians. The concern that iron Dome would make Israel even more reckless and grant it even more impunity does not seem to be borne out by its actions in the current onslaught. Those actions, brutal as they are, are no worse than what Israel did in 2008 and 2012 to Gaza or what it did in 2006 to Lebanon. So, yeah, please let’s see more Iron Domes in the world.
By the same token, however, it doesn’t seem like Iron Dome is actually protecting Israeli civilians nearly as much as the rockets’ lack of any sort of targeting ability.
Israel is committing genocide against the Palestinian people
Opponents of Israeli policies in the United States and in Israel itself have an uphill battle against an entrenched propagandistic view of the entire conflict. We do ourselves no favors by using bombastic, easily assailable language in making our arguments.
Genocide has a specific meaning in international law. It does not mean large scale killing. The Convention on the Prevention and Punishment of Genocide provides that definition:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
There is no evidence that this is what Israel is trying to do. Indeed, the best evidence that Israel is not doing this is the simple fact that the Palestinian population, in both the West Bank and Gaza, continues to grow, despite the occupation and all its concomitant hardships.
Would Israel like to find a way to get rid of the Palestinians in the West Bank and cut off Gaza? Sure, but that is not genocide, it is ethnic cleansing, and frankly, that’s bad enough. Israel has done that very gradually over the years, confiscating more and more land, forcing Palestinians into ever smaller enclaves and turning Gaza into one big open air prison.
Making claims that are contradicted by the facts, especially the weighty accusation of genocide, is irresponsible and self-defeating; it plays right into Israel’s propaganda hands.
Hamas is exercising legitimate self-defense
It is absolutely true that an occupied people has the right to resist its occupiers. It is also true that the unusual nature of Israel’s occupation makes it very difficult for guerrilla groups like Hamas, Islamic Jihad, the Popular Resistance Committees and others to take any violent action that would conform to international legal standards. As international legal expert Noura Erekat puts it: “Hamas has crude weapons technology that lacks any targeting capability. As such, Hamas rocket attacks ipso facto violate the principle of distinction because all of its attacks are indiscriminate. This is not contested.”
It is also true that Israel itself does not differentiate between attacks on its civilians and its soldiers. It views them as equally illegitimate and labels it all “terrorism,” even though legally, Israeli soldiers are combatants while on duty. Take, for example, the killing of IDF soldier Natanel Moshiashvili in 2012. The IDF statement about his death plainly states: “The IDF will not tolerate any attempt to harm Israeli civilians or IDF soldiers, and will operate against anyone who uses terror against the State of Israel.”
Nonetheless, the fact that Palestinians are mostly unable to strike exclusively at Israeli military targets does not mean that it is suddenly legal to use indiscriminate weapons or to target civilians. These are war crimes, and any credible investigation must investigate both sides while also taking into account the massive differences in capabilities and power of the two. Israel must also be scrutinized more closely because it has a far greater ability to discriminate between combatants and non-combatants than Hamas.
Hamas is using human shields
Saying something over and over again doesn’t make it true, but it does make a whole lot of people believe it. For instance, Israeli Prime Minister Benjamin Netanyahu willfully and repeatedly lied to the Israeli public and the world about Hamas’ complicity in the kidnap and murder of the three young Israeli settlers, which sparked this latest round. He kept saying he had proof that he never produced, and now the Israeli police are admitting what everyone who was actually paying attention at the time knew: this was an independent act of violence.
It’s the same with the human shield argument. Like genocide, the term “human shield” has a legal definition. According to the International Committee of the Red Cross, “… the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.” Again, as Erekat wrote: “International human rights organizations that have investigated these claims have determined that they are not true.” Erekat correctly cites reports from Amnesty International and Human Rights Watch, which focused on past engagements. There is also doubt being cast by journalists in Gaza today.
In fact, no evidence has ever been presented to support the accusation apart from the high number of civilian casualties and Israel’s word. On the other hand, Israel’s own High Court had to demand that Israel stop using human shields. That happened in 2005, but the practice continued.
In any case, even the presence of human shields does not absolve or mitigate Israel’s responsibility to minimize civilian casualties. Again quoting Erekat: “Even assuming that Israel’s claims were plausible, humanitarian law obligates Israel to avoid civilian casualties…In the over three weeks of its military operation, Israel has demolished 3,175 homes, at least a dozen with families inside; destroyed five hospitals and six clinics; partially damaged sixty-four mosques and two churches; partially to completely destroyed eight government ministries; injured 4,620; and killed over 700 Palestinians. At plain sight, these numbers indicate Israel’s egregious violations of humanitarian law, ones that amount to war crimes.”
Finally, one last point and one more citation of Noura Erekat. The claim that Israel is merely acting in self-defense fails on a number of counts. As I and others have been saying from the beginning, the Netanyahu government willfully and cynically used the murders of three Israelis as an excuse to provoke Hamas with mass arrests and widespread activities that included the deaths of nine Palestinian civilians before this operation started. That removes the self-defense argument from the start. But more than that, the Gaza Strip, despite it being emptied of settlements and soldiers, remains under Israeli control, and is thus occupied territory, contrary to Israel’s claims. Please check out Erekat’s excellent write-up of what this means for the right of self-defense. And please note, she never denies that Israel has a right to protect its own civilians, but that is not the same thing.
Photo: International and Palestinian volunteers accompanied Civil Defense and other rescue crews, as well as family members, into Shujaya, a neighborhood by the separation barrier in the east of Gaza City, in an attempt to locate survivors of overnight and ongoing shelling by the Israeli army on July 20. Credit: Joe Catron
]]>by Mitchell Plitnick
We’ve all seen it in movies and television shows. A man with a gun is pointing at an innocent, making demands of the “good guys.” When our heroes do not deliver, the man shoots the innocent and tells our heroes that it was their fault. Do we buy it? Of course not.
by Mitchell Plitnick
We’ve all seen it in movies and television shows. A man with a gun is pointing at an innocent, making demands of the “good guys.” When our heroes do not deliver, the man shoots the innocent and tells our heroes that it was their fault. Do we buy it? Of course not.
On or around August 6, 1945, US Air Force jets dropped copies of two leaflets on Japanese cities, including Nagasaki, according to the Harry S. Truman Library. Both included a similar message: You saw what we did to Hiroshima. If you don’t want the same thing to happen to you, overthrow your emperor. Failing that, flee your cities.
In fact, the leaflets were dropped on Nagasaki (and Hiroshima) only after the city had been hit with an atomic bomb. Previously, leaflets had been dropped on dozens of Japanese cities warning of devastating bomb attacks (these did not reference atomic bombs), and indeed those cities were devastated. But, of course, with so many cities being targeted, it would not have been possible for Japanese citizens to flee in great numbers even if their government would have permitted such mass flight.
So why drop the leaflets at all? This memo describes the purpose as psychological warfare aimed at Japan. It has been noted elsewhere that it has the ancillary benefit of making these strikes, both the carpet bombings and the atomic attacks, seem much more humane to US citizens and the rest of the world. Does all of this sound familiar?
It should, because we’ve heard much the same story coming from Israeli Prime Minister Benjamin Netanyahu from the moment the latest Israeli onslaught against the Gaza Strip began. We’ve been told ad nauseum about the great care Israel takes to avoid Palestinian casualties. They drop little bombs on rooftops just before the big bombs. They send text messages and automated phone calls. And yes, they drop leaflets.
So why, with all these extraordinary measures, are the vast majority of the dead and injured in Gaza civilians? Why have more than 100 Gazan children been killed? Why are 35-50,000 Gazans displaced, and why are all of these numbers growing and getting more disproportionate with each passing day?
Israel wants you to think that Hamas is using these civilians, the children as well, as human shields. At this point, there are only three groups of people who could possibly believe that in the face of overwhelming evidence to the contrary: 1) Those who are simply ignorant; 2) Those who will believe anything Israel says no matter what; and 3) The congenitally stupid. Sadly, it seems these groups comprise a very large part of the population in the West.
Despite that unfortunate reality, there does appear to be a strong sense that Israel is acting, at the very least, disproportionately or irresponsibly. Much, though far from all of the mainstream coverage of the fighting has focused on the devastation being experienced in Gaza. It is reminiscent of the 2008-09 onslaught, dubbed Operation Cast Lead, but in that event, the comparatively (and one must stress that word) negative coverage of Israel’s action took much longer to coalesce.
Really, it is astounding that people can continue to cling to the frankly absurd notion that “Hamas is responsible” for the civilian casualties in Gaza. I oppose almost everything Hamas stands for; they are a regressive, anti-democratic, faith-based organization with antiquated ideas about women, and with repressive ideas of government. The organization clearly did rise to prominence through acts of terrorism, and they continue to commit war crimes.
But their crimes are clearly dwarfed by Israel’s actions. Columnist Dalia Scheindlin described Gaza as “…an area that [Israel] has already imprisoned by occupation from 1967, and then through suffocating border, movement, import and export control since 2007. Its residents have been stateless since 1948.” None of that just happened; Israel did that, and security concerns cannot justify such actions, according to international law. Not to mention basic ethics.
In this case, however, loathe as I am to admit it, it is Hamas that is the one standing and seeing the innocent being held hostage, and who has to watch as Israel kills the innocent for Hamas’ refusal to surrender. One can question, as I certainly have, whether Hamas made the right choice in rejecting a ceasefire which they had good reason to see as little more than terms of a surrender in order to stop Israel before it pushed things even further, as it did this past weekend in the Gazan town of Shujaya. But that doesn’t change the fact that it was Israel holding the gun to the head of the Palestinian civilians. It is not, and has never been, the other way around.
The notion that Israel is trying to avoid civilian casualties is belied by the reality that Israel has made no secret of the fact that it targets the homes of Hamas leaders where their children, and their families live. It is belied by eyewitness accounts of Israeli actions. Even the United States has told Israel it is “not doing enough” to prevent civilian casualties in Gaza. Coming from America, that is a very damning indictment indeed to be directed at Israel in what is generally perceived here in the US as a time of war.
Finally, one has to ask the Israeli government this question: when you tell the Palestinians to run, where, in one of the most overcrowded places in the world with sealed borders, are they supposed to run?
Secretary of State John Kerry forgot he was at Fox News when, during a commercial break, he spoke on the phone to an aide and said, sarcastically about Israel’s efforts, “It’s a hell of a pinpoint operation.” Fox aired it immediately to put Kerry on the spot, and Kerry of course scrambled to cover his tracks, but his perspective was already out.
There can be little doubt that the US and our good friend in Egypt, General-President al-Sisi would love to see Netanyahu wipe out all of Hamas, but that is not possible. Meanwhile the Obama administration has to be concerned about the potential for the latest Gaza onslaught to cause the West Bank to boil over, and possibly even get intertwined with broader regional conflicts. Every civilian death raises that possibility a little higher.
But there remains a steadfast refusal to confront Israel, especially on a “security matter,” and never mind that Netanyahu willfully set this entire scenario up from the moment he heard about the deaths of the three young Israeli settlers last month. Incredibly, on the same day as his gaffe, Kerry told CNN that “Israel is under siege by” Hamas. Apparently, Hamas is sealing off Israel’s borders, ports and airspace and severely limiting most goods and almost all exports from crossing the borders. This is turning reality on its head. But it is no less than what we have come to expect from public US pronouncements.
Still, it seems like much of the global public, and even much of the mainstream media, is starting to understand that this Israeli government, much more than the ones in the past, is the one holding the gun to the heads of innocents. Perhaps the massive rise in street hooliganism so reminiscent of fascism and right-wing authoritarianism in so much of the world is attributing to this growing reality.
Whatever the cause, it cannot have escaped Israel’s notice that even the United States is having a hard time supporting Netanyahu’s story with a straight face given the blatant discrepancy between the facts as everyone sees them and the Israeli line. As with the US in 1945, the purpose of the leaflets is to sell the story, not to protect civilians. But this isn’t 1945, and people can see a lot more for themselves. In any case, Israel may have used this tactic one time too often.
Photo: Rescue crews search for survivors in Shujaya after the Israeli attack which left 72 dead in the town. Credit: Joe Catron/ Published under a Creative Commons License
]]>by Henry Precht
Lidice was a town in German-occupied Czechoslovakia that not too many people will remember now. It was there early in World War II that partisans assassinated the local Nazi commander, Reinhard Heydrich. In revenge, the Nazis executed the community’s males: 173 men over the age of 15. In addition, [...]]]>
by Henry Precht
Lidice was a town in German-occupied Czechoslovakia that not too many people will remember now. It was there early in World War II that partisans assassinated the local Nazi commander, Reinhard Heydrich. In revenge, the Nazis executed the community’s males: 173 men over the age of 15. In addition, 184 women and 88 children were sent to concentration camps; 153 women returned, 17 children.
Later, in 1944 in France there was the village of Oradour-sur-Glane where a Nazi commander was believed to have been kidnapped. One hundred forty-two inhabitants were massacred by SS troops and the village destroyed. (Its ruins remain as a monument.) It turned out that the German bureaucracy had gotten confused and originally intended Oradour-sur-Vaynor for destruction as the locus of the kidnapping. Mistakes happen in time of war.
After the war the victorious nations, responding to these and other Nazi atrocities, joined together to draft the Fourth Geneva Convention. The first three conventions, dating from the turn of the 20th century, were an attempt to “civilize” the conduct of warfare. The fourth convention deals with the treatment of civilians in war. The crimes of Lidice and Oradour are banned as collective punishment under paragraph 33. The US, Israel and 194 other nations have signed up.
It seems to me that collective punishment is precisely what Israel with US-supplied weaponry has been inflicting on its Palestinian enemies on and off since territory was seized in the 1967 war. The present surge in violence, including a ground invasion, started when three Israeli teenagers were kidnapped — an awful crime without pardon. Hamas was blamed without a shred of evidence produced. Over 200 people from all walks of life were jailed without charge — except that they were associated with Hamas. Then, in an apparent revenge attack by Israelis, a Palestinian youth was burned to death. Another Palestinian boy, an American citizen, was badly beaten by police and arrested. Six Hamas militants were killed in Gaza.
Tensions mounted. Hamas fired its rockets at Israel, harming no one. That unleashed Israel, which retaliated with heavy firepower, killing over 250 persons at this writing and wounding many more. “Collateral damage which we tried to avoid,” says Israel. One person has since been killed this week on the Israeli side: a volunteer at an Israeli military base near the border. Crowds of Israelis cheer on the bombing in Gaza. Collective punishment in a small space crammed with 1.8 million people, I say. American politicians from the president down only say Israel “has the right to defend itself,” and urge both sides to cool down. No mention of a violation of international law.
Back to the Geneva Convention and its rules. One of them is the requirement that an occupying power (like Israel) will “protect” the inhabitants under its control. That would seem to mean, at a minimum, not bombing Gaza’s water facilities and depriving 1.8 million people of fresh water. Mistakes happen in time of war; yet they can be avoided by not taking risky actions that can be reasonably foreseen to harm innocents.
Another of the Convention’s prohibitions (article 49) is that an occupying power shall not transfer its citizens into occupied territory. That is what makes Israel’s construction of settlements on Palestinian land a violation of international law. Virtually all the world, including Washington, agrees on that charge.
Then why doesn’t “the world” act to enforce international law? In good part because Washington has blocked any such move at the United Nations. Europeans tend to follow our lead, although its dutiful subservience has been weakening of late.
In light of the flaccid official stance private groups and some public entities have begun to use other means of putting pressure on Israel to conform to international standards. This is the “Boycott, Divest and Sanction” movement that advocates cutting ties to Israeli and foreign entities that support the occupation of Palestine. Banks and firms in Europe have moved against Israeli businesses and their cooperating outsiders, for example, Caterpillar, which sells bulldozers used to level homes of Palestinians. Some religious groups have taken similar action.
International isolation worked against apartheid South Africa — in a not dissimilar situation. If ordinary Americans understood the hardships of Palestinians under Israeli occupation, they might generate sufficient pressure to move our leaders towards a more morally balanced posture. As long, however, as our politics are so closely bound up with contributions from special interests, any change will come only very, very slowly.
Photo: Palestinians inspect the remains of a house which was destroyed during an air strike in Central Bureij refugee camp, in the Middle Area of the Gaza Strip, July 15, 2014. Credit: Shareef Sarhan/UNRWA Archives
]]>by Mitchell Plitnick
The two ceasefire proposals aimed at ending the accelerated violence in Gaza and Israel also offer one of the best illustrations of the Israel-Palestine conflict. The circumstances and the content of each proposal demonstrates very well why outside pressure is necessary to end this vexing, seemingly endless struggle and [...]]]>
by Mitchell Plitnick
The two ceasefire proposals aimed at ending the accelerated violence in Gaza and Israel also offer one of the best illustrations of the Israel-Palestine conflict. The circumstances and the content of each proposal demonstrates very well why outside pressure is necessary to end this vexing, seemingly endless struggle and just how differently Israelis and Palestinians view both current events and the conflict as a whole.
Let’s look at the two proposals. Egypt, acting as the United States normally does, worked out the details of its ceasefire idea primarily with Israel. The deal reflects the Israeli and Egyptian agenda: it mostly follows the formula of “quiet for quiet,” essentially bringing back the status quo ante of early June. It offers Hamas a vague promise of future negotiations to address the siege of the Gaza Strip. But this is hardly something Hamas will put stock in. The 2012 ceasefire agreement, which was negotiated by then-Egyptian President Mohamed Morsi, a man much friendlier to Hamas than the current Egyptian leadership, also made such a promise and it never came to anything. Finally, Egypt says it is willing to open the Rafah border crossing between Gaza and Egypt more widely but only if Hamas allows Palestinian Authority security to police it instead of their own people.
It’s not hard to see why Hamas viewed that offer, and its exclusion from the talks, more like a call to surrender than a ceasefire. Indeed, that’s what it was. The offer was likely made with the expectation that Hamas would refuse it. That is one reason, along with the fact that I don’t see them getting a better deal from continued fighting, that I thought Hamas should have taken it. But it is perfectly understandable that they did not.
Hamas recently confirmed its terms for a ceasefire: Israel should lift the siege it has imposed on the strip for the last seven years, and release all the prisoners it arrested last month during its sweep of the West Bank while the Netanyahu government was keeping the Israeli public and the world from immediately finding out that the three youths who were ostensibly being searching for were already dead. In exchange, Hamas would agree to a ceasefire.
Those terms are undoubtedly unacceptable for Israel, and Egypt for that matter. They won’t because they don’t have to. Each of them, by themselves, is far more powerful militarily than Hamas. Together, they are even more so, and they have the backing of the United States, quite openly. More discreetly, they also have the backing of much of the Arab leadership in Saudi Arabia and most of the Gulf states, which, with the exception of Qatar, generally despise Hamas and the Muslim Brotherhood, Hamas’ ideological forebears.
Therefore, Israel and Egypt will follow the most basic rule of international politics: might makes right. They will ignore minor details like peace, security for both Gazans and Israelis, and most of all, international law. They will do this because they can.
But really, what is Hamas demanding? That they be set free from a crippling siege that has remained in full force with only minor and occasional amelioration through ceasefires and flare-ups alike. That seems like a perfectly reasonable demand, an expectation, even, especially since Israel claims that it is no longer an occupying power in Gaza. Inside, that may be true, but Israel controls the airspace, the offshore areas and the overwhelming majority of Gaza’s borders, except for the southern one, which Egypt controls. It permits only limited amounts of supplies into the strip, bars many things like chemicals and building materials entirely and allows almost no exports. According to most international law experts, Israel has the responsibilities of an occupying power proportionate to the control it exerts. Thus, Israel is not responsible for internal policing of Gaza, but it is responsible for the effects of its control — meaning the siege is illegal.
Hamas, and most Palestinians, surely see the demand to lift the siege as a minimal one. Hamas is not, after all, demanding that the entire occupation regime be lifted for a ceasefire to take place, nor that Israel, for example, repair the damage it has done to Gaza’s only power plant or compensate Gaza for the destruction of its airport.
But the majority of Israelis see the siege as a defensive measure. They believe lifting it will enable Hamas to reload with much more and better weapons and then they will strike much harder and might, at that point be able to deliver a real blow to Israel, something far beyond their ability right now. Most Israelis do not see the Egyptian proposal as a Hamas surrender, but rather as a very reasonable return to the status quo ante.
Israelis believe their leaders when they say they are not targeting Gazan civilians, despite the rather conclusive evidence to the contrary (such as bombing an open beach with children playing on it, destroying a hospital with patients in it, bombing the homes of Hamas leaders with their families inside, etc.). Palestinians see the destruction of civilians, homes, and Gaza’s infrastructure as justifying firing rockets at Israel. Israelis see Hamas as willing to sacrifice its own civilians in order to kill Jews. Palestinians see Israel as offering them a choice of being bombed to death relatively quickly or starved to death more slowly.
The point is not whether one view or the other is right or wrong (we all obviously have an opinion on that, myself included). The point is that these are two completely irreconcilable views. When we combine that with the massive imbalance of both political and, especially, military power involved and the sense both sides have that they cannot afford to be seen as letting the “violence of the other” dictate the terms of the ceasefire, we see the impasse. So where does that leave us?
Ultimately, it is more than likely that Israel’s overwhelmingly greater ability to cause death and destruction, along with the fact that Hamas (and Gaza in general) has very few countries willing to stand up for it in the international arena, will force Hamas to accept a deal that closely resembles the one they just rejected. But all that will do is reset the clock to ticking down to the next round.
If there were a genuine desire to find a way to stop this endlessly repeating loop, there would need to be forceful international mediation. Such mediation cannot come from those countries that stand with Israel against Hamas (Egypt, the US) nor those who have the reverse position (Turkey, Qatar). It can only come from an international delegation, either under the auspices of the UN or in the form of a committee from a variety of countries. There would need to be international guarantees and sanctions applied to both sides (and, crucially, actually enforced) for violations of any agreement.
That, of course, is not something Israel would ever accept. It has no reason to sacrifice its impunity, because it has might — militarily, economically and politically — on its side. And as long as that is true, it simply has no good reason to moderate its position. In this regard, it acts like any other country. And the ineffectual Hamas rockets, terrifying though they may be to so many in Israel, are not coming anywhere near giving Israel any incentive to change.
The bottom line: it is the United States, which unconditionally runs interference for Israel in the Security Council and which arms Israel and completely ignores the fact that Israel uses US-made weapons in blatant contravention of US law, that is fueling this fire. It will support Israel in its refusal to allow any other outside party to mediate, and will certainly ensure that Israel retains its impunity. And the US will do this against the better judgment of its president and secretary of state, both of whom are well aware that the security of Israelis and the very lives of Palestinians both depend on ending the 47-year old occupation, lifting the siege of Gaza and allowing the Palestinians to achieve their freedom. Such is the effect of domestic politics in the United States, and it is playing out in blood in the Gaza Strip right now.
Photo: Relatives and friends of the al-Kaware family carry 7 bodies to the mosque during their funeral in Khan Yunis, in the Gaza Strip, on July 9, 2014. The father, a member of the Fatah movement, and his 6 sons were all killed the day before in an Israeli air strike that targeted their home. Credit: AFP/Thomas Coexthomas Coex/AFP/Getty Images/Used under a Creative Commons license
]]>by Mitchell Plitnick
You have to admire the tenacity of J Street, the self-proclaimed “pro-Israel, pro-peace” lobbying group. Or maybe it’s the desperation born of running out of options. In any case, if there is to be any hope for a negotiated resolution to the Israel-Palestine conflict, J Street, however well-intentioned, [...]]]>
by Mitchell Plitnick
You have to admire the tenacity of J Street, the self-proclaimed “pro-Israel, pro-peace” lobbying group. Or maybe it’s the desperation born of running out of options. In any case, if there is to be any hope for a negotiated resolution to the Israel-Palestine conflict, J Street, however well-intentioned, is demonstrating precisely what we must not do.
Just days after the Obama Administration announced it was taking a “pause” in its efforts to broker an agreement, J Street sent out a message trying to rally the troops. In that message, they said that this moment “…is an opportunity to take stock and ask some tough questions.” Unfortunately, they make clear in the very same message that they are doing neither.
Here is what J Street refers to as “our plan”:
This plan reflects a sense of futility. There is nothing here that raises the question of why almost every round of talks for the past twenty years has ended in failure. The closest thing the U.S. can point to as a success during that period is the Wye River Agreement in 1998, when President Bill Clinton exerted personal pressure on Israeli Prime Minister Benjamin Netanyahu and, for his troubles, got Netanyahu to implement a redeployment that had already been agreed upon. Not a lot to show for over twenty years of work.
Yet J Street, in essence, advocates more of the same. The “toughest question,” and the one they don’t want to ask comes down to the internal paradox that J Street faces. On one hand, they are always advocating “robust diplomacy” on the part of the United States. On the other, J Street has consistently opposed any sort of material pressure on Israel, whether economically or diplomatically, to get them to change their policies. That they continue to hold this position goes a long way toward explaining why nothing, especially the results of Israeli-Palestinian talks, ever changes.
In 1998, Bill Clinton was able to put public pressure on Netanyahu, without having to resort to threatening U.S. military aid to Israel or really much else in the way of material pressure. But that was a different time. The reason Clinton was successful was because the specter of an Israeli Prime Minister alienating a U.S. President was a significant political problem in Israel. Indeed, it contributed significantly to Netanyahu’s defeat shortly thereafter by Ehud Barak (although, paradoxically, the right wing’s sense that Netanyahu had sold them out at Wye was at least as big a factor). In today’s Israel, as long as the people know the military relationship is intact, defying the U.S. can be a political plus, and Netanyahu has since proven that he can insult, humiliate, even spit in the proverbial face of a U.S. President without real consequence.
That’s why J Street’s prescription is so badly out of date. The rightward shift of the Israeli public since the beginning of the Second Intifada in 2000, along with the increasing clarity in recent years of the strength of virtually unconditional Congressional support for a wide array of Israeli policies, have emboldened Israeli prime ministers. They know that the United States will not exact any penalty for Israeli defiance on matters related to the Occupation (wider regional matters may be different). If further proof were needed, the opposition from within his own party to Barack Obama’s call for an Israeli settlement freeze in 2009 provided that. It is no longer sufficient for a U.S. President to make his wishes clear; Israel will not move on the ever-deepening occupation without significant, tangible pressure. But J Street opposes any such pressure.
The “tough questions” that J Street, and other groups seeking a reasonable and non-violent end to this conflict need to answer don’t stop there. The failure of not only the latest attempt by John Kerry, but of the entire process over twenty-plus years now raises a much bigger question.
To date, there has only been one path to that sort of a solution, the two-state version as envisaged by the Oslo Accords and the subsequent evolution of events. It hasn’t worked. After twenty years, the occupation is far more entrenched; the settler population has exploded and its growth will continue to accelerate; the PLO has fallen into disarray and has lost a lot of support, but no clear alternative has presented itself; the Israeli electorate has moved sharply to the right; and Washington’s ability to pressure Israel has grown weaker with each successive president since 1992.
The byword about this process has been that there is no other choice, but this is nonsense. Not long ago, Emile Nakhleh, a former Senior Intelligence Officer for the CIA suggested on this site that the two-state option was dead and new ideas, essentially variations on a one-state formula, would have to be devised.
I agree that those formulations need to be considered anew. I still don’t believe a single state will really work, but the moment demands that anyone who can make a case for any solution must be heard and taken seriously. What is most dangerous right now is falling into the comfortable trap of trying the same thing that has failed for twenty years. The only formulation that has ever been attempted was the Oslo formulation and it has failed. There is always another option. We need to find one that will work, not stubbornly cling to a fatally flawed plan that has finally died and pretend there is still even the remotest possibility that it will work.
It is precisely for this reason that I have been picking on J Street in this article: because I still believe that a two-state formulation must be found. I have nothing against a one-state outcome in principle; as long as that one state guarantees it will always offer safe sanctuary to Jews fleeing persecution– the kind that didn’t exist in World War II — I’m perfectly comfortable with it. But I have no faith that it can work, as we see all around the world the collapse of and/or violent conflicts within multi-ethnic or -confessional states (Iraq, Yugoslavia, and most recently Syria, South Sudan and Ukraine, just to name a few). Given that level of doubt, and the fact that there is currently no groundswell of political support anywhere for a one-state outcome, I cannot see how it would work. But I remain open to someone showing me how the difficulties could be dealt with, as we all must consider new options in the wake of Oslo’s death.
But a new two-state concept doesn’t really have the full advantage over one state that some may contend, if they base that contention on the idea that a two-state formulation has global acceptance. That’s because any two-state formulation must scrap Oslo and start from scratch, so it would have to be sold anew. In my view, in order to succeed, a two-state formula must include the following elements, few of which were characteristic of the Oslo Process:
That’s a basic framework that I see as workable for an equitable two-state solution. Lots of compromise on both sides, but also a practical approach that allows both Palestinians and Israelis to maintain their national identities.
Of course, I don’t expect a politically centrist, Washington-centric group like J Street to accept such a formulation. But I do expect that, if they are serious about wanting A two-state solution rather than stubbornly sticking to the failed experiment that has been referred to as THE two-state solution, they will start talking and thinking of new ideas about what such a solution will look like.
There are one-staters who advocate a secular-democratic single state. There are right-wing Israeli one-staters who advocate a single state that legally enshrines Jews as dominant above Palestinians. Those ideas are advancing today because any reasonable person understands that the Oslo process is dead and has been proven to be unworkable, and these ideas are beginning to fill that vacuum. If we want to see a two-state solution emerge, as I think we need to, we need to re-think the basis of that solution and build one that avoids all the bias and mistakes of Oslo.
J Street, as champions of the two-state solution, this is your time to show that you can truly lead. I hope you’ll take the opportunity to do so and not play scared by clinging to the only solution that has actually been tested and which led to a dead-end.
]]>by Mitchell Plitnick
There are many false clichés about the Israel-Palestine conflict. There are also some very true ones, though these are heard less frequently. Perhaps the most profound of these was proven once again this week: the United States is incapable of playing a positive role in this arena.
There is [...]]]>
by Mitchell Plitnick
There are many false clichés about the Israel-Palestine conflict. There are also some very true ones, though these are heard less frequently. Perhaps the most profound of these was proven once again this week: the United States is incapable of playing a positive role in this arena.
There is nothing about that statement that should be controversial. A decades-long line of US politicians and diplomats have spoken of the need to resolve this conflict. In recent years, these statements have often been accompanied by an acknowledgment of the need for “Palestinian self-determination.” But Israel is the one country, among all of the world’s nations, of whom those very same leaders speak in terms of an “unbreakable bond,” a country between whose policies and ours there “is no daylight.”
Let’s say my brother gets in a dispute with someone else, perhaps even someone I am acquainted with. Would anyone think that I would be the appropriate person to mediate that conflict? If my brother also had a lot more money and influence in the conflict, and therefore a fair mediation required a broker who was willing to pressure my brother into compromise because, right or wrong, he does not have incentive to do so, am I the right person for that job?
Of course that would be absurd, yet that is exactly what has been expected of the United States. The comparison goes even deeper because the political forces in the United States, as my father would do in this scenario, exert personal pressure (familial and financial) favoring my brother. While being quite natural, this isn’t justice, and it’s a recipe for disaster, not resolution.
US Secretary of State John Kerry now says that the United States is going to “re-evaluate” its efforts for Israel-Palestine peace. But will that be an honest evaluation, one that asks the hard questions? Because after twenty years of failure, there is but one fundamental question: is the United States, given its self-imposed diplomatic parameters and its AIPAC-directed domestic political obstacles, capable of mediating this conflict?
We need to understand, when evaluating the Obama administration’s performance here, that, reality aside, it is perceived as the toughest on Israel since George H.W. Bush. And, to be sure, it worked harder to get small concessions from Israel than its predecessor in the George W. Bush administration. But for those who still don’t understand the extent to which US policy prioritizes Israeli preferences over basic Palestinian needs, this past week’s events should have made it clear. Indeed, it is because of that potential clarity that Israel has moved immediately to replace the facts with its own, demonstrably false, narrative.
A Clear US Failure
Let’s review the collapse of the Kerry Talks. Eight months after scoring his victory in getting Israel and the Palestinians back to talks, Kerry had nothing but increased acrimony between the two parties to show for it. For many weeks, both Israel and the Palestinians had tacitly recognized the futility and had directed their efforts toward jockeying for a position to emerge from the inevitable collapse of talks as the more reasonable side. As the date that had been designated for the fourth and final release of 26 long-time Palestinian prisoners approached, Israel began to signal it would not follow through on its agreement to let them go. And Kerry’s frank incompetence started to become even more apparent.
Israel had been saying for weeks that the last batch of prisoners included Palestinian citizens of Israel whom they had not agreed to release. It is unclear exactly what happened here, but Kerry gave no indication that Israel was not being honest about that claim. The picture that emerged was that Israel agreed to the 104 prisoners being released but not necessarily to these specific ones, who, as citizens of Israel, do fall into a different category. Rather than clarify, it looks like Kerry simply assured Palestinian President Mahmoud Abbas that he’d convince the Israelis to get it done. If that is what happened, it indicates a serious lack of understanding on Kerry’s part of the difference the Israeli status of those prisoners made in Israel. It would mean that the US secretary of state was woefully ill-suited to this task.
Had Kerry bridged this gap, it might have been enough to move the prisoner release forward. This was the objection Israel started with. But by March 29, the date designated for the last prisoner release, Israel, certainly with US agreement, shifted gears and made the release contingent on the Palestinians committing to continuing the talks for another twenty months. This sat well with Kerry, since at this point, all he was really after was continuing the talks. Any goals of substance had long since evaporated.
Seeing that the Palestinians were not going to agree to this arrangement, Kerry tried to get Israel to sweeten the deal with a phony limitation on settlement construction that committed Israel to nothing at all and guaranteed accelerated settlement expansion in the Jerusalem area, and the freeing of 400 additional prisoners of Israel’s choosing which would have almost certainly meant freeing thieves and other common criminals whom the Palestinians would not necessarily even want to give back. In exchange for this Israeli “largesse” not only would the talks be extended, but the US would give Israeli Prime Minister Bibi Netanyahu a massive political plum to please his right-wing: the freeing of convicted US spy Jonathan Pollard.
Kerry secured Netanyahu’s agreement then started to show the Palestinians this deal he had worked out with Israel and wanted them to accept. He never got that far, because that was when the Palestinians finally said “enough” and began applying for membership in numerous international bodies, as is their right.
When Kerry left the region in a huff, he blamed both sides for taking “unhelpful” and “unilateral” steps. That, in itself, is an inaccurate description of a collapse that was largely engineered by Israel. But it was clear that the Obama administration was planning to go further. The US Ambassador to the United Nations, Samantha Power, expressed the administration view clearly in her testimony before a House of Representatives subcommittee hearing on UN funding.
“On the Palestinian question, it just would underscore that we will oppose attempts at upgrades in status anywhere,” Power testified. “The [International Criminal Court] is, of course, something that we have been absolutely adamant about. Secretary Kerry has made it very, very clear to the Palestinians, as has the president, I mean, this [the Palestinians joining the ICC and bringing cases against Israel] is something that really poses a profound threat to Israel. It is not a unilateral action that will be anything other than devastating to the peace process…”
So it is either the Palestinians’ fault for threatening to hold Israel accountable for its actions in the international legal system or it’s both sides’ fault. No administration official has singled out Israel for its actions as they have the Palestinians, despite the fact that the Palestinians were acting on their rights which they had only agreed to hold off on as long as Israel lived up to its commitments and kept the talks going. It was Israel, not the Palestinians who reneged, and while the United States is well aware of this, they won’t say it.
Instead, US officials are helping clean Netanyahu’s image by shifting the blame for the announcement of new settlement units to Housing Minister Uri Ariel. Ariel, of the Jewish Home party, which is a right-wing rival of Likud, certainly seized an opportunity to torpedo any peace talks, in line with his views and his party’s policies. But the idea that this was done behind Netanyahu’s back is absurd. Netanyahu has offered no rebuke of Ariel, nor has he distanced himself at all from the announcement of the new settlement units or the timing of the announcement. Given that Kerry had made an emergency trip to the region just at that time, even most of the right-wing would not have had a problem with Netanyahu putting the new buildings on hold for a while. No, this was not Ariel’s initiative. It was Netanyahu’s.
Where to now: Israel
The Palestinians applied to fifteen international bodies. But the ones they chose to apply to pose no threat to Israel. Indeed, if anything, the choices they made, which largely consist of various human rights conventions, serve to make the Palestinian Authority (PA), not Israel, more accountable. The PA made a point of not applying to the International Criminal Court, which is Israel’s chief concern. The applications they made only moderately upgrade the Palestinians’ status, acquired over a year ago when they won admission to the UN General Assembly as a non-member observer state. The applications are, certainly, a threat that they will do more if things keep going as they have been.
Israel has declared that it will punish the Palestinians, though so far, aside from officially cancelling the last prisoner release, the only specific measure they have announced is the withdrawal of a permit for a West Bank telecommunications company to start building its wireless infrastructure in Gaza. There will likely be more measures soon. But the telling point is the absolute absence in Israel of any criticism of Netanyahu for the collapse of the talks.
The parties in the governing coalition that were supposed to hold Netanyahu to the peace track, Yesh Atid and HaTnuah, have been unwavering in their support of Netanyahu since the talks collapsed. The major opposition parties, particularly Labor and Shas, have either been silent or offered measured support to Netanyahu. It is clear that Netanyahu faces no pressure to modify his position.
This tells us that Israel is going to continue on its present course. It leaves little doubt that Netanyahu is perfectly comfortable with Kerry simply giving up and turning his attention to other matters. And why shouldn’t he feel that way? Congress remains locked into mindless obedience to any and all Israeli actions, and the Obama administration has made it clear it is not going to expend the political capital necessary to bring about any changes.
Where to now: Palestine
Now that Abbas has finally reached the point where he could not accept another one-sided US proposal, he needs to consider his options. He has thrown down a gauntlet with his applications to the international bodies. The message: Palestine will take full advantage of its rights if Israel remains unwilling to negotiate in a spirit of compromise that acknowledges the legitimacy of Palestinian claims. Remember that the Palestinians have surrendered 78% of Palestine, accepted the principle that Jerusalem will be shared and acknowledged that the implementation of refugee rights would be negotiable and considerate of Israel’s demographic needs.
Abbas absolutely cannot be seen to be bluffing. If Israel does not change its stance, he must apply to the International Criminal Court (ICC) for recognition of Palestine and begin bringing war crimes cases there. There is a reason Ambassador Power considers this a real threat to Israel. The United States will indeed shield Israeli leaders from imprisonment if they are found guilty by the ICC, but Israeli leaders will find themselves unable to travel to Europe, which, despite US largesse, is by far Israel’s biggest trading partner. That matters, a lot.
Abbas must be willing to follow through, even if he is unlikely to be around for the endgame. Israel would certainly respond harshly to such actions, and the PA is not going to survive that kind of Israeli action. That’s why Abbas will be sorely tempted to find another way. But, as we’ve already seen, popular pressure is beginning to boil in the West Bank.
Where to now?
The breakdown of these talks is a turning point. Yes, there will be desperate cries for another “last chance” for the Oslo-based two-state solution, but there is a growing realization that this is now a pipe dream. The United States will likely continue for some time to play the same role it has for twenty years, but if this round generated miniscule hope, future attempts will be met with virtually absolute cynicism.
The politics of all of this is going to move farther away from Washington, although the pull from Congress will slow the process. But even the bought and paid for Congress won’t be able to stop it. Europe will be forced to take more actions, and Israel is going to be increasingly isolated. The parameters are becoming more fluid and, in a departure from the Oslo years, the new ones are going to be dictated by events in Israel and the Palestinian Territories more than in Washington.
The smart thing for Washington to do is to reset the process, bring together real experts — rather than AIPAC-endorsed lawyers for Israel like Martin Indyk, Dennis Ross and David Makovsky — with leaders from Israel, Palestine, Europe and the Arab world and start over. There may be a way to find a formulation, whether one state or two, that justly addresses Palestinian rights as well as Israeli ones, but it must start with admitting that the Oslo process is dead. Continuing self-deception, whether from right-wingers like Netanyahu who gamed the system, or well-meaning centrists like J Street who staked their existence on the vain hope that this process, ill-formed at birth, could ever succeed, must be treated now like the threat to any progress that it is.
Photo: US Secretary of State John Kerry leaves US Ambassador to Israel, Dan Shapiro behind as he ends his failed trip to Israel. Credit: State Department
]]>by Peter Jenkins
Enthusiasm in some quarters for punishing Russia for its moves to recover the Crimea has been a feature of recent public debate.
Similar references to “punishing Assad” were rife last August after Western governments published indications that the Syrian government had used chemical weapons in the suburbs of Damascus.
[...]]]>by Peter Jenkins
Enthusiasm in some quarters for punishing Russia for its moves to recover the Crimea has been a feature of recent public debate.
Similar references to “punishing Assad” were rife last August after Western governments published indications that the Syrian government had used chemical weapons in the suburbs of Damascus.
This fondness for viewing international situations through a crime and punishment prism is striking because it is sharply at odds with international law — or rather, to be more precise, with laws governing relations between states.
The United Nations Charter, which lies at the heart of the international system, is devoid of references to crime and punishment. Instead it lays down procedures for the pacific settlement of disputes and for action with respect to threats to the peace, breaches of the peace, and acts of aggression. The aim of such action emerges clearly from articles 39, 40 and 42 of the Charter. It is to “maintain or restore international peace and security”, and to “prevent an aggravation of the situation”.
The Statute of the International Court of Justice (ICJ) is equally devoid of such references. The ICJ’s job is to deliver interpretive judgements on “all cases which the parties refer to it”, any question of international law, and the nature or extent of the reparation to be made for the breach of an international obligation.
The Charter concept of “restoration” is echoed in the Statute of the International Atomic Energy Agency (IAEA) and in the dispute settlement understanding (DSU) of the World Trade Organisation (WTO); the ICJ concept of “reparation” in the DSU.
Article XII.C of the IAEA Statute requires the Board of Governors to “call upon [any member state reported by the Director General to be in non-compliance] to remedy forthwith any non-compliance which [the Board] finds to have occurred.”
Article 19 of the DSU states that when a trade measure is found to be inconsistent with a WTO agreement it will be recommended to the member concerned that the member “bring the measure into conformity with that agreement”. Article 22 provides for the “compensation” of a WTO member or members who have been affected by a trade measure in the event of a conformity recommendation not being implemented within a reasonable period of time, but stresses that full implementation is to be preferred.
Both the IAEA Statute and the DSU contain provisions that could be construed as punitive. The Statute envisages loss of access to the IAEA technical assistance program, and even suspension from the exercise of member privileges and rights, “in the event of failure to take full corrective action within a reasonable time”. The DSU provides that victims of an offending trade measure may apply to the WTO’s Dispute Settlement Body for authorisation to suspend trade concessions previously available to the offending party.
But the context and drafting of these provisions suggest that their framers’ intention was not punitive but corrective: to create a source of pressure on the offending party to return to conformity.
The lesson to be learnt from these examples is that it is a mistake to think of the inter-state part of the international legal order as having the characteristics of a domestic criminal justice system.
If anything, it is to Anglo-Saxon civil law that inter-state law approximates, especially to the law of tort and to contract law. It is there that one finds such concepts as the settlement of disputes through judicial process, corrective action, reparations and compensation.
This is not to deny the existence of a body of international law that is concerned with criminal justice. However, international criminal courts and tribunals mete out punishment to individuals, guilty of war crimes, for instance, or crimes against humanity — not to states.
These distinctions are not trivial. Public and parliamentary misunderstandings about the fundamental nature of inter-state law can lead to pressure on governments to act in ways that are more likely to provoke conflict and to “aggravate the situation” than to restore peace or resolve disputes.
Governments should react robustly to such misunderstandings. Ministers can exclude all mention of punishment from their own statements in times of international crisis, and they can spell out that their over-riding aim is to secure compliance with international obligations, the correction of non-compliance, and the maintenance or restoration of peace.
If that leads them to refrain from imposing sanctions when it is obvious that sanctions will not serve any of those ends, and that their only purpose is punitive — or even vindictive — so much the better!
]]>How the White House Flung the Door Wide Open
by Tyler Cullis
It is a trope among foreign policy elites that the Obama administration lacks a coherent strategy for dealing with conflict and chaos in the Middle East and South Asia region. Few meanwhile seem to appreciate the most consequential of the [...]]]>
How the White House Flung the Door Wide Open
by Tyler Cullis
It is a trope among foreign policy elites that the Obama administration lacks a coherent strategy for dealing with conflict and chaos in the Middle East and South Asia region. Few meanwhile seem to appreciate the most consequential of the administration’s policies there — the U.S. targeted killing program and the way it is changing the rules of the game in war.
While the U.S.’s targeting guidelines have been a continuing source of controversy, not least among human rights advocates, the fact that the administration’s use of killer drones in Pakistan and Somalia are changing the rules on when force can be deployed in the first place has largely flown under the radar. However, it is this development that might prove most troubling, as dozens of States stand prepared to acquire killer drones in the coming years.
As reported in The Washington Times, the U.S. intelligence community estimates that 87 countries are in possession of drones, and 26 of those have either purchased or are in the process of developing a drone akin in scope to the Predator. It is expected that a dozen or so of these countries are seeking to weaponize their drones and will succeed in short order. Further proliferation like this is a striking concern, but even more disturbing is the fact that States will be deploying lethal gadgets in a legal order undergoing dramatic flux and change, largely thanks to the novel conceptions of law the White House has employed to justify its drone program in Pakistan.
Unable to rationalize the cross-border use of drones while toeing the line of the law, the Obama administration at first ignored the legal repercussion of its drone policy. When pressed, it took an ad-hoc approach to the legal concerns underlying its targeting killing program, without careful consideration of the costs of upsetting and throwing into turmoil the rules and regulations that have governed the use of inter-State violence for more than six decades.
Last month, the United Nations released two draft reports on drones and drone warfare, which spoke to this problem. Following a recitation of the law governing the use of force and implying, but not finding, that the U.S. drone strikes in Pakistan fell afoul of this law, the Emmerson report noted that the U.S. had taken the position that the law of self-defense provided far greater scope for States to undertake cross-border action against non-State armed groups than commonly believed.
Under the U.S.’s preferred approach, the use of killer drones in Pakistan’s tribal areas would be a legitimate form of self-defense so long as Pakistan proved “unable or unwilling” to combat the non-State armed groups within its own borders. This contrasts with the traditional rule that self-defense can be triggered only after an armed attack by the State itself, and that cross-border incursions of the American kind in Pakistan can only be warranted upon the consent of the Pakistanis. Needless to say, the U.S. position has not proven popular amongst other countries.
However, the U.S. rule is one ripe for adoption, especially as other countries acquire the drone technology to make cross-border attacks relatively cost-free. In arguing for a more permissive legal regime, then, the Obama administration has opened the door wide for other countries to pursue their own “counter-terrorism” policies under the stamp of law. It is entirely unclear whether the administration intended this result, or whether it is simply a by-product of the White House’s race to defend its drone program from legal attack. Regardless, the legal argument is ill-considered.
Nowhere will this prove to be a more of a problem than in the Middle East and South Asian region. With the U.S. set to depart Afghanistan by the end of next year, there will soon be an intensified competition over the country’s future from regional neighbors, including Pakistan, India, China, Russia, Iran, and Tajikistan. More than a few have or are at present developing weapons systems for their drones and will not be hesitant to use Afghanistan as training ground for their new gadgets, much in the same way the U.S. did. This bodes ill for the future stability, if not integrity, of the war-torn country.
Drones could see especial use in a number of low-intensity, inter-State conflicts as well. India, which has a limited set of armed drones at present but is looking to purchase vast fleets of them, might well be inclined to deploy drones on its border with Pakistan in order to target hostile groups in Kashmir. Pakistan’s response to this, which it would almost certainly regard as a provocation, is yet to be seen, but it takes little imagination to see how the appeal of the drone — as a limited, low-intensity weapon — could incite a much larger and much deadlier conflict.
These are just two examples, but they demonstrate the point that, absent a more restrictive legal regime governing the use of force, killer drones will be deployed by more countries, and more often, than at present, with unforeseeable consequences. It is thus unfortunate that the Obama administration has pushed the law to evolve in just the opposite direction.
When asked early in his first term whether the war in Afghanistan was winnable, President Obama replied:
I think about [the Afghan War] not so much [as] do you lose a war…? I think about it more in terms of, do you successfully prosecute a strategy that results in the country being stronger rather than weaker at the end of it?
It is ironic, then, that the linchpin of the administration’s strategy in Afghanistan — the targeted killing program — might well invite a world that is more conflict-ridden and chaotic than the one that preceded it.
– Tyler Cullis is a law graduate specializing in international law and U.S. foreign policy. Follow him on Twitter.
]]>by Wayne White
The main objective of the Russian chemical weapons (CW) initiative this week was to steer the US away from military action in Syria that might weaken the regime of Bashar al-Assad. Although Moscow also is concerned about CW falling into the hands of rebel extremists, it has less incentive [...]]]>
by Wayne White
The main objective of the Russian chemical weapons (CW) initiative this week was to steer the US away from military action in Syria that might weaken the regime of Bashar al-Assad. Although Moscow also is concerned about CW falling into the hands of rebel extremists, it has less incentive than Washington to pressure its Syrian ally amidst the latter’s war against the Syrian opposition. While much of the world looks to Russia and the US to chart a way to achieve international goals on Syrian CW peacefully, the Russians will be working closely with Damascus in parallel to fashion the disarmament mission to the Syrian regime’s advantage. In addition to stretching out the timeline, another Russian-Syrian objective could be to use the process to create a measure of external dependence and perhaps lend some badly needed legitimacy to Syria’s discredited dictatorship.
President Vladimir Putin’s bottom line in his New York Times editorial on Thursday is highly misleading: “We are not protecting the Syrian government, but international law.” Whatever emerges concerning the issue of Syrian CW, one must bear in mind that Syria is Russia’s only remaining Middle East ally, a major market for Russian weapons, and plays host to Russia’s only Mediterranean naval base.
Although claiming to defend international law against “ineffective and pointless” American style “brute force,” Putin has done most everything to assist the Assad regime’s widespread, often indiscriminate use of just that (reducing much of Syria to rubble) to suppress what was initially a reform movement, while opposing any use of force to punish the regime for what increasingly appears to have been a major violation of the 1925 Geneva Protocol against chemical warfare. Finally, much of Putin’s rhetoric revolves around the extremist threat posed by the rebels, while skirting references to the Syrian regime’s own extensive barbarity. In fact, the regime’s ruthless repression since 2011 played a key role in driving many rebels toward greater radicalization.
The complex process of accessing, accounting for, seizing, and eliminating Syria’s huge CW arsenal might well be exploited by Damascus to assist its own cause against the rebels. The work at various CW sites, the sequencing of such access, as well as the inspectors’ need to move around other areas of the country to make sure CW has not been hidden elsewhere could be used to demand that the rebels cease fighting across broad stretches of territory (potentially providing any regime personnel accompanying the inspectors opportunities to collect information on rebel deployments). A telling signal of Putin’s desire to give the regime as much maneuvering room as possible in all this was Moscow’s immediate rejection of France’s proposal to include in the relevant UN Security Council resolution a tough enforcement clause.
Just the amount of time required to catalogue, transport and dispose of Syria’s CW arsenal (possibly years) is likely to provide the regime with respites it could exploit to revive its battered military. Meanwhile, to weaken the rebels, Assad might argue, for example, that all lethal aid to them (on the part of the US, reportedly just getting under way) cease, or demand certain local rebel withdrawals to supposedly facilitate the work of the inspectors. During this lengthy process, Assad could at times halt cooperation unless his demands are met (such as his latest: the US must renounce any potential use of force against his regime). Absent a tough enforcement mechanism, the international community would have little clout with which to push back via the UN.
Furthermore, Assad’s agreement to sign the 1925 Geneva Protocol is no guarantee–just an opening formality. Egypt signed the protocol, but later used Mustard Gas against the side it opposed in the 1960s Yemen Civil War. Italy’s Benito Mussolini accepted the protocol during his early years in power, only to turn round abruptly in the mid-1930s and use Mustard Gas in his war against Ethiopia. Japan, also a signatory, attacked Chinese forces amidst hostilities in the 1930s with both chemical and biological weapons.
It is not surprising that even the relatively moderate Free Syrian Army (FSA) working with the West has reacted negatively to the emerging arrangement. They know all too well that Moscow has stood by the brutally repressive regime against which they have fought and are shocked to find Russia now at the head of the diplomatic table. Also, with the UN inspection report on the August 21 Damascus CW attack reportedly set for release on Monday (amidst rising evidence the regime carried out the attack), the opposition was stunned as focus abruptly shifted from punishing the Assad regime to cooperating with it on a CW arsenal the same regime previously denied it possessed. Nevertheless, any lack of cooperation on the part of the opposition would make Assad & Co. appear reasonable by comparison.
The Russian proposal, however, should be explored fully. That said, while a peaceful way out of this aspect of the Syrian conflict is preferable, all concerned must also proceed cautiously given Moscow’s stake in the Assad regime. An additional great advantage to most everyone would be to remove Syria’s CW arsenal from the battlefield so no party to the conflict could gain further access to it–neither the regime nor rebel extremists. Yet, although the current approach stems from a likely regime atrocity, if Assad agrees, for the most part, to cooperate in dismantling his CW arsenal in a timely manner, the international community could become vested in an otherwise loathsome regime for a long time as the sole guarantor of that process.
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