Monthly Archives: March 2013

Real Complexities Face Palestine At The ICC

There’s a great deal of talk going these days attributed to unnamed senior Palestinian official sources, and many others, about Palestine seeking redress at the International Criminal Court at The Hague if peace talks with Israel remain stalled. This is usually presented, and received by the public, as if it were a straightforward option, akin to the Palestinian decision to request nonmember observer state status from the U.N. General Assembly or joining other multinational bodies.

But the legal and political reality is far more complex, and a series of difficult, time-consuming and, in some cases dubious, contingencies would have to be realized before any charges against Israeli officials could plausibly be launched by ICC prosecutors.

Juan Vrijdag / Getty Images

The biggest technical difficulty with asking ICC prosecutors to consider charges against Israeli officials or citizens for actions in the occupied Palestinian territories is the question of standing under the Statute of Rome, which guides the ICC’s work. Israel is not a signatory to the Statute, meaning that Israeli officials could not be prosecuted for their actions on the grounds of their citizenship, or for any acts committed inside territories in which Israel is considered the legal sovereign. Internationally, that would definitely not include the occupied Palestinian territories, however.

But, as Palestinians discovered when they urged the ICC to open an investigation into the 2008-2009 Israeli offensive in Gaza, the court would not consider the matter because it could not establish a viable sovereign entity that could authorize it to investigate actions in Gaza or other areas of the occupied territories. As far back as 2002, the Palestinian Authority tried to get the ICC to investigate Israel’s actions in the occupied territories, to no avail.

Time and again, the ICC found that because Israel is not a signatory, and Palestine was not a legal sovereign, the Court had no jurisdiction in the occupied territories. The only way around this would be a U.N. Security Council authorization of an investigation (as in the case of another non-signatory: Sudan) but the United States, and probably other permanent members, would certainly veto any such resolution.

It’s possible that the recent upgrade of the Palestine Liberation Organization observer mission at the General Assembly to “nonmember observer state” might allow this newly redefined entity to accede to the Statute and join the Assembly of State Parties at the ICC. However, even this is not clear. In April 2012, the ICC prosecutor’s office stated that it “has assessed that it is for the relevant bodies at the U.N. or the Assembly of State Parties to make a legal determination whether Palestine qualifies as a state for the purpose of acceding to the Rome Statute.”

It’s perfectly true that in any globally-representative multinational body or agency, Palestinians have a guaranteed majority that they can call upon at any time. This is the same majority that upgraded their status at the General Assembly and then voted overwhelmingly to approve Palestine joining UNESCO. So if Palestine applied to join the Assembly, it has a high chance of being approved. It thereby might be able to gain some standing at the ICC.

But Assembly membership would only be the first stage in a lengthy and complex legal process. Because after that, Palestine would have to be judged to be a competent legal sovereign in the occupied territories with standing to bring complaints against Israeli officials on the grounds that they were operating unlawfully within territory under the jurisdiction of the ICC member state of Palestine.

The legal, political and diplomatic difficulties with such a claim would be considerable and almost certainly time-consuming. But they, too, are not theoretically insurmountable. It’s possible that after a lengthy process Palestine could use its upgraded U.N. status to accede to the Statute and gain access to the ICC. And it’s further possible that Palestine would eventually be held to be the legal sovereign in, at the very least, “Area A” (which technically includes Gaza), if not the entirety of the occupied territories (excluding the Syrian Golan Heights).

If, and only if, all of that happens, Palestinians would finally have the standing and legal basis for approaching ICC prosecutors and urging an investigation into the behavior of Israeli officials in territories deemed to be under their sovereignty.

By now any reader will have understood that this process is neither straightforward, simple and quick, nor are any of its outcomes guaranteed. But even then, an ICC investigation of, let alone charges against, Israeli officials are not necessarily within the Palestinians’ grasp.

The bottom line is that the ICC, like all multinational institutions, is primarily a diplomatic and political body. Any such decision would be as much a diplomatic and political calculation as it would be legal or criminal. And this may be not only the final, but the most difficult, hurdle Palestinians would face in trying to initiate such a process. One more thing to bear in mind: prosecutors in any system generally don’t bring charges in cases they don’t think they can win.

How to read Obama’s Mideast trip

Everyone who follows the struggle for Israeli-Palestinian peace – especially insofar as they have any interest in it succeeding – quickly risks getting sucked into an exaggerated, bipolar discourse. The highs are too high and the lows too low to be justified by the circumstances. These affects inevitably lack what T. S. Eliot called an “objective correlative”: a reality-based source for such extreme emotions. The narrative asserts, but doesn’t justify, them.


There are two ways of getting it wrong, even without being hostile to a two-state solution. Some are fixated on being relentlessly rosy or doggedly downbeat. But most, at least to some extent, allow ourselves to be swayed with the pendulum of prevailing wisdom. Neither impulse is fact-based.


Right now a great many who are invested in Israeli-Palestinian peace appear to be in a manic phase. Because expectations were so low for President Barack Obama’s trip to the region, his skillful exercise in public diplomacy (especially as directed towards Jewish Israelis) has produced a palpable positive overreaction in many quarters.


Some are even speaking as if we had an active, American-led peace process in place, but in fact we don’t. And developing one will be a lengthy, difficult, and risky process.


Others, of course, are still entirely depressive. Obama looked like a tourist. He gave the store away to Israel. He kicked the can down the road to his successors. Been there, done that, etc.


But the bottom line is, while we are not on the brink of peace, or even renewed negotiations, we are across-the-board better off than we were a week ago. It’s equally unjustified to dismiss those improvements and pretend they didn’t occur or don’t matter as it is to declare the United States has reasserted its leadership and once again made peace a top priority.


So, if he didn’t make any actual progress towards a peace agreement, what exactly did Obama achieve? Quite a good deal, actually.


Most obvious is his reset with Prime Minister Benjamin Netanyahu, and, more importantly, the Israeli public. A reflexively zero-sum mentality assumes that better relations between the American president and Israel are a bad thing for the Palestinians. But the last two years of such tensions didn’t deliver anything useful to the Palestinians at all. And, in the end, since they want the Americans to help secure Israel’s agreement to end the occupation, Palestinians need a healthy, functional US-Israeli relationship.


Obama bent over backwards to tell the Israeli public everything it could want to hear, but he also had some harsh truths for them. And in those harsh truths were acknowledgments of the Palestinian experience that went far beyond anything we’ve heard from top-level American officials in the past. In particular, Obama’s declaration that the Palestinians “deserve justice” can only be read as an acknowledgment that there is something fundamentally unjust about the way the occupation mistreats them as human beings.


At least as significantly, Obama’s visit was immediately followed by two important steps that will directly benefit the Palestinian economy.


The United States pledged to release $500 million in withheld aid to the Palestinian Authority. And, more importantly, Israel has pledged to resume transferring the Palestinian tax revenues that make up the bulk of the PA monthly budget. Those revenues translate directly into paychecks for public sector employees and their families – about 1 million Palestinians – who have been struggling with delays and other hardships for many months.


It’s also striking that Obama personally met twice with embattled Palestinian Prime Minister Salam Fayyad, and repeatedly endorsed the institution-building program that he developed and has led since 2009. Obama made American support for Fayyad and his policies clear to any Israelis or Palestinians who harbored doubts about that.


Finally Obama obviously played a major role in initiating the unfolding Israeli-Turkish rapprochement. The two parties were brought together by mutual concerns regarding Syria, which will also provoke anxiety for Iran and Hezbollah. Bringing these two sulking American allies back together may not please everyone in the Middle East, but it’s clearly a substantial achievement for US policy.


So Obama’s trip yielded significant benefits to all parties. That said, nothing that took place could be confused for any actual “progress” towards a peace agreement.


Carefully cultivated low expectations for Obama’s trip led not just to pleasant surprise, but also to “irrational exuberance” on the part of some when it proved substantive and impressive. The danger, now, is that too large a bubble of hope has been created which, sooner rather than later, will pop, crash, and burn.


To avoid that, Obama and Secretary of State John Kerry will need to move beyond public diplomacy and managing expectations. They will have to develop policies that breathe new life, however gently, into the two-state solution. And that’s when the hard part really begins.


Crowdsourcing Peace: By going over the heads of Israeli and Palestinian leaders, Obama is demanding that their people step up.

U.S. President Barack Obama’s speech in Jerusalem was without question the strongest ever made by a senior American politician on the Israeli-Palestinian conflict. It was plainly designed to speak directly to the Israeli and Palestinian peoples over the heads of their political leaderships. It was an exercise in public diplomacy par excellence, intended to change the tone and atmosphere, and public perceptions of Obama himself, presumably as an adjunct to actual diplomatic efforts to lay the groundwork for eventually resuming negotiations.

The psychological, communication and political skill that was marshaled to give the speech its maximum impact with public opinion was quite extraordinary, and stands in contrast to some miscalculations Obama made about Israeli and Palestinian perceptions during his first term. By systematically downplaying expectations for his trip, Obama made the power of his speech and the boldness of some of the language and positions he staked out — particularly regarding the realities Palestinians face under Israeli occupation — surprising and therefore all the more striking.

Obama made the first day of his trip an extended exercise in telling the Israeli public everything it could possibly want to hear from an American president, ranging from “undying bonds of friendship” to robust reiterations of security commitment and a much yearned-for acknowledgment of the long Jewish history in the land. In retrospect, it’s clear that what looked like public outreach bordering on pandering was, in fact, designed to transform Israeli perceptions of Obama himself in order to prepare them for some of the hard truths he was preparing to deliver the next day.

What Obama has done is to reassure and challenge Israelis and Palestinians alike. To Israelis, he reiterated America’s undying support and commitment to Israel’s security. But he confronted them with the fact that “the only way for Israel to endure and thrive as a Jewish and democratic state is through the realization of an independent and viable Palestine.” He reassured Palestinians that the United States is not walking away from the effort to create an independent Palestinian state. But he told them they must recognize that “Israel will be a Jewish state” and challenged them, and the rest of the Arab world, to begin to normalize their relations with Israel.

From a Palestinian point of view, it was already highly significant that Obama was not just going to Israel but also Ramallah and Bethlehem for significant talks with both President Mahmoud Abbas and Prime Minister Salam Fayyad. This communicated several important messages: that the Palestinians are still an important factor in the equation, and that they have a leadership, including both Abbas and Fayyad, that is to be engaged with seriously. And by specifically and repeatedly citing the Palestinian Authority’s institution-building and security measures led by Fayyad, Obama was sending a clear signal that he wants to continue to deal with the present Palestinian prime minister, who has been under considerable political pressure in recent months.

But the speech itself gave the Palestinians a much deeper recognition, and one they’ve never fully received from American officials in the past. Obama went to enormous lengths to humanize the Palestinians, comparing them to his own daughters and to the young people of Israel. He did not simply reiterate the American commitment to a two-state solution, he spoke of the “Palestinian people’s right to … justice.” This can only be seen as a clear, albeit implicit statement that the status quo of occupation is an ongoing injustice. He challenged his Israeli audience to “look at the world through their [Palestinian] eyes,” which speaks to the Palestinian need to be acknowledged as fully equal human beings by the Israelis. And Obama admonished Israel that “neither occupation nor expulsion is the answer,” directly addressing the two main Palestinian historical traumas and ongoing anxieties.

The effectiveness of Obama’s careful political and psychological preparation for these unprecedented statements with his Israeli audience was demonstrated by the sustained, and otherwise unimaginable, applause he received for almost all these remarks. He clearly went a long way in assuaging Israeli skepticism. Palestinians will be harder to win over, as they require more than words given the onerous conditions of the occupation and their repeated disappointment with successive American governments, and in particular with Obama’s first term.

There is no question that Obama’s extraordinary speech will have a significant impact on how he is perceived by both Israelis and Palestinians, although how long that lasts and what kind of political or diplomatic impact it will have very much remains to be seen.

One of the more remarkable aspects of this outreach was how it stood in stark contrast to his diplomacy with political leaders. He explicitly told the Israeli and Palestinian publics that he was directly addressing them, not only over the heads of their political leaders, but in order to challenge them to confront those leaders. If entrenched politicians have become an obstacle to peace — and they may indeed have — why not go around them? “Political leaders will not take risks if the people do not demand that they do,” he said, adding, “You must create the change that you want to see.”

Essentially, Obama was saying, “If you like what you’ve heard today, you have to help me because your leaders aren’t going to cooperate without significant pressure from you. I can’t do this alone, as I discovered in my first term. I need your help.”

In his first term, Obama essentially tried dealing with the leaderships directly and barely engaging with the Israeli or Palestinian publics. One subliminal message of his speech might be that he discovered this approach is a dead end, and that to get beyond the present impasse requires more robust public engagement. Whether he’s done enough to promote or sustain that will have to remain to be seen.

Diplomacy without sufficient outreach may have proven to be a failure in Obama’s first term. But this kind of bravura performance of public diplomacy will have to be backed up with significant real diplomacy or it may be remembered as yet another inspiring Obama Middle East speech that ultimately produces more disappointment than tangible achievement. Still, if Obama was primarily trying to change the tone and the atmosphere in the region, and the way he is perceived by ordinary Israelis and Palestinians, it’s hard to imagine how he could have been more effective than he has been over the past couple of days.


Was the Iraq War Worth It?

Not only is there no serious case to be made that, from an American point of view, “the Iraq war was worth it,” the real challenge is evaluating how gigantic a blunder it was. The costs of the war were enormous. The most recent estimates suggest that financially the war has cost the American people $800 billion, and that figure is continuing to grow in spite of the drawdown and end of major military operations. Some economists estimate it may end up costing up to $3 trillion. 4,422 American service personnel were sacrificed in the conflict, and almost 32,000 injured. Estimates of Iraqi fatalities vary wildly, between 100,000 to over 1 million killed during the violence.

The war also cost the United States dearly politically and diplomatically. It revivified a moribund Al Qaeda, and gave the terrorist group a new battle and training ground and rallying point. More broadly, it fed into a paranoid and chauvinistic anti-American narrative that informs far broader swaths of Arab public opinion.

Because the war was seen both at home and abroad by almost everyone as a failed adventure, it undermined American global leadership, particularly as the United States approached the UN Security Council for a resolution permitting the action but did not receive one. It unhelpfully exposed the limitations of American power, and fed an unfair global narrative about American arrogance and even “imperialism.” Indeed, beyond the “coalition of the willing,” there was an international consensus that the action was illegal. The combination of perceived illegality and perceived failure did considerable and lasting damage to American global leadership.

One of the most dramatic and direct consequences, no matter how unintended, of the war was the strengthening of Iran as a regional power. Saddam Hussein’s Iraq and its formidable military had been the primary Arab bulwark against a rising Iranian hegemony. Like it or not, we did the regime in Tehran an enormous favor by getting rid of its most potent enemy (after first dispensing with their most hated one: the Taliban of Afghanistan). Iran emerged in the immediate aftermath of the Iraq war as a potential regional hegemon. It is only the complex aftermath of the “Arab Spring” and a new sectarianism in the Middle East that has undone the enormous gains we inadvertently handed the Iranians through the Iraq war.

The immediate goal of the war, the toppling of the foul and brutal dictatorship of Saddam, was successfully accomplished, and in short order. That can only be regarded as a good thing. However, the long-term consequences for Iraqi society remain unclear. The war certainly greatly benefited the Kurdish population in the autonomous regional area in the north, and was, initially at least, welcomed by many Shiites and other Iraqis.

However, it unleashed a process of state disintegration that may or may not have been avoidable but was certainly exacerbated by the way in which the occupation emphasized sectarian, ethnic and communal differences. In particular, the disbanding of the Iraqi military, and an overzealous campaign of “de-Baathification,” created faultlines that continue to reverberate violently in the country. Sixty-five people were killed in bomb attacks in Iraq just yesterday. Yet it is possible, although unlikely, that Iraqis will one day come to a consensus that this war and violence was “worth it” for them, if they emerge in the long run with a free, stable and prosperous society, or set of societies.

But the benefits to the United States are almost impossible to identify. What American policy goal was actually achieved, other than overthrowing a nasty and hostile, but strategically contained, dictator? The answer must be none.

One of the reasons for this total failure to achieve any benefits from such a massive and costly adventure is that its principal proponents in the policymaking and policy-framing communities agreed that the war was necessary, but they never agreed on precisely why. There was an extraordinary range of incongruous, disconnected and sometimes incoherent arguments in favor of the war circulating before the invasion. But it was almost impossible to find any group of advocates of the invasion that had precisely the same hierarchy of priorities. So it was virtually impossible that we would have “succeeded,” beyond the toppling of Saddam, because this was one of those rare major wars in which there was no consensus at all about its primary goal.

Weapons of mass destruction, of course, were most frequently cited, but it was clear at the time that there was every reason to doubt the administration’s claims. And, we quickly discovered, these claims were as false as many of us were convinced they must have been. Given the way that intelligence information was processed and presented to the public, there is every reason for the American people to feel that they were deliberately misled by some key elements of the Bush administration regarding Iraqi WMDs.

There were numerous, and patently ridiculous, attempts, including by Vice-President Dick Cheney, to link Iraq to the 9/11 terrorist attacks. Others argued that even though Iraq was obviously not involved in the attacks, the United States needed to make a show of strength in the region in response and this was a perfect opportunity to do that. Some endorsed the war as a human rights measure, and as a debt owed to both Kurds and Shiites from previous American engagements with Iraq. Others suggested it was necessary to secure American dominance in the oil-rich Persian Gulf region. Some even argued that overthrowing Saddam would be the key to resolving the Israeli-Palestinian conflict.

A further central claim was that the United States could establish a democracy in Iraq that would transform the political culture of the region. Some have even tried to suggest that the “Arab Spring” uprisings against Arab dictatorships are some kind of delayed reaction or long-term impact of the transformation in Iraq. Almost no Arabs believe this, because almost no one in the Arab world looks to Iraq as a success story to be emulated.

Indeed, the main impact of the Iraq war on the crucial turning point in the birth of the “Arab Spring” was the training and experience that many of the most important young activists in the uprising against Hosni Mubarak got during their protests against the Iraq war. So, if there is any correlation between the Iraq war and the democratic uprisings, it has its origins in opposition to the war rather than inspiration from it.

Ten years on, it’s clear that the Iraq war was enormously costly to the United States at almost every conceivable register and produced virtually no benefits. It now appears to have been such a colossal miscalculation that it is a very plausible candidate for the worst major strategic blunder in the history of the Republic.

David In Wonderland

In his response to my recent article explaining why there is no question that Israeli settlement activity is prohibited under international law, David Suissa proves my main point perfectly. He and others seek refuge in a more comforting legal and political alternate universe because there are elements of reality that are simply too painful or inconvenient. Compounding his continued refusal to recognize the unanimous international consensus that Israel is the occupying power in the territories conquered in 1967, and that settling occupied territories is strictly prohibited under international law, he didn’t actually read my article at all. Instead, just as one who prefers a dreamworld to reality predictably would, what he saw (and responded to) is a mirage. It is the coinage of his own imagination that he takes on with such gusto, not my words, and a completely different article other than the one I wrote.

West Bank
Banned from Migron, residents are being moved to another settlement nearby. (Lior Mizrahi / Getty Images)

Suissa’s entire response is based on the illusion that I described Israel’s occupation as “illegal.” In fact, of course, what I was discussing was the indisputable illegality of Israel’s settlement activity, and I laid out an irrefutable case for why that is so. The question of whether the occupation itself is “legal” or “illegal” is a far more complex one, and entirely irrelevant to the question of settlements. It’s symptomatic of his overall disconnection from international legal and political realities that Suissa not only thinks I passed judgment on the “legality” of Israel’s occupation, but also that it has any implications at all for the indisputable illegality of settlement activity.

Suissa dutifully trots out almost every argument I noted that Israel and its supporters make in trying to either deny there is an occupation at all or that settlement activity is somehow not unlawful. He cites a number of Israeli documents and opinions to back this up, but, as I said, these arguments exist. The crucial thing is not that there are no forms of legal sophistry deployed in order to make these claims. It is rather that they are restricted to Israel and its closest supporters, and are categorically rejected by every other government and international authority in the world. Everyone can rationalize their own misbehavior, or that of their friends, but when no one else at all is buying it, you’ve clearly got no real argument.

On cue, Suissa argues that there is no occupation because there was no prior sovereign. If true, that would mean that all U.N. Security Council resolutions since June 1967 on the subject have been complete nonsense. But of course it’s not true, and neither the Security Council nor any other competent international body believes this nonsense.

Suissa points out that there has never been a Palestinian state. This is true. But the main reason for that, at least in recent decades, is the Israeli occupation itself. Since at least the 1980s, Palestinians have sought to establish a state in the occupied territories, but it is the ongoing occupation that prevents them from doing so. So his argument here is the equivalent of a person who killed his parents begging for clemency on the grounds of being an orphan. The logical contortion of defending the occupation by citing the fact that it has successfully denied Palestinian independence is really quite breathtaking in both inanity and chutzpah.

But Suissa is mainly focused on the completely false allegation that my arguments were based on the assertion that Israel is “an illegal occupier.” To the contrary, the legality or otherwise of an occupation is completely irrelevant to the prohibition on settling occupied territories. The U.N. Security Council, although it did not approve the American invasion of Iraq, did authorize the United States to act as the occupying power in Iraq after the invasion. This authorization was renewed on more than one occasion. There was no question that the American occupation of Iraq gained international legal legitimacy from these measures. But there’s also no question that any American settlement project in Iraq would have nonetheless been a gross violation of international law.

In the real world, all settlement activity in any occupied territory is prohibited by international law, the “legality” or “illegality” of the occupation notwithstanding, and no matter who was “the aggressor,” or whether there was a “prior sovereign” or not. In Suissa’s more comforting but fictive alternate reality, all of these questions have important legal implications for the settlement of occupied territory. But this is yet another hallucination, because, in fact, they don’t.

Suissa even tries to imply that U.N. Security Council resolution 242 is ambiguous about the occupation. Here, again, he looks at a text and somehow sees something very different than what is actually written in clear, unambiguous language. 242 is explicit in identifying “territories occupied in the recent conflict,” clearly stating that the territories are occupied and Israel is the occupying power. That has been reaffirmed in every single Security Council resolution since then.

Suissa’s prodigious imagination makes another fantastic leap when he tries to claim that the settlement project is merely a private enterprise by individual Jewish Israelis rather than state policy. This claim is so silly as to be a direct insult to the intelligence of his entire readership, individually and collectively. Yet again, only in a genuinely delusional state could one imagine that the settlement project is a private initiative without any direct connection to state policy.

Suissa’s response is an exercise in demonstrating the central point of my article: that there are some Israelis and a few of their individual friends who are willing to make outlandish legal arguments that are universally rejected denying the legal and political fact of the occupation or the illegality of settlements. And by harping on the strawman of the “illegality” of Israel’s occupation—a claim I never made in my article and which is irrelevant to the illegality of the settlement project—he demonstrates the sophistry that is required in order to get around the simple fact that international law strictly prohibits any form of settling occupied territory, and that only Israel and some of its most zealous individual supporters deny this.

Suissa certainly doesn’t understand international law regarding settlement of occupied territories, or Israel’s unquestioned status as the occupying power. Or at least he pretends not to. But whether he is genuinely deluded, and seeking solace in a comforting set of illusions, or he is cynically engaging in extremely disingenuous propaganda, I have no idea. And I’m not sure which is worse.

Muslim Brotherhood Attack on Women’s Rights Just the Start

No more illusions. No further evasions. Tolerate not a single additional apologetic explanation. Admit no further concessions to a false moral and cultural relativism. The Egyptian Muslim Brotherhood has now fully exposed itself as what many of us have been trying to explain it is: paranoid, chauvinistic, reactionary, retrograde, and, above all, misogynistic.


The Brotherhood has reminded us, in a bizarre rant against the UN Commission on the Status of Women, that Islamism in practice invariably prioritizesmisogyny (and homophobia). But this is merely the vanguard of a much broader set of intended and inevitable repressions against minorities, individuals and, eventually, all opposition.


Islamism doesn’t have the intellectual depth of a systematic political ideology. It has no specific economic theory or program beyond mercantilism, with some (apparently malleable) suspicions about interest. It doesn’t have an analysis of class or other key social structures. Its ‘theory’ of the relationship of the individual and society simply empowers those claiming religious authority and ‘authenticity’. It has no distinctive defense strategy, foreign policy, developmental program, or anything like that.


Instead, it boils down to a set of extremely reactionary social attitudes that don’t have any real implications for such key issues of governance.


The Muslim Brotherhood was formed in the 1920s in order to exploit and manipulate religious sentiment to seize political power. They seek to use that power to ‘Islamize’ Egypt and other Arab societies along ultraconservative lines that purport to be ‘traditional’ but are often in fact modern innovations or new interpretations of past practices.


Their stock in trade is a paranoid jeremiad that holds that Muslim and Arab societies are under assault by modernity in general and the West in particular. They pose as defenders of an Arab and Islamic ‘moral specificity’ and ‘cultural particularity’ that are supposedly under siege. As a solution to these and all other challenges, they proclaim ‘Islam is the answer’, as interpreted and enforced by them, of course.


In practice that generally means oppressing women and reversing the rights that they have gained even under the highly flawed postcolonial Arab state system. In the crudest patriarchal worldview, protecting the country means defending the home and family, and, especially, ‘protecting’ women. And that, in turn, means men and male-dominated society have to control and repress women, especially when it comes to sexual and domestic rights.


The Brotherhood’s statement drips with this trademark paranoid cultural chauvinism and siege mentality, warning that the UN Declaration “would lead to complete disintegration of society, and would certainly be the final step in the intellectual and cultural invasion of Muslim countries.”


How? Because, the Brotherhood statement claims, the UN Commission would allow “girls full sexual freedom,” allow the reproductive rights of contraception and abortion, grant equal rights to children born outside of marriage, grant equal rights to homosexuals and “protect prostitutes,” allow wives to sue husbands for rape, provide equal inheritance for women, make men partners rather than “guardians” of women, provide for equality in marriage legislation, allow judges rather than husbands to decide on divorces, and remove the requirement of a husband’s consent for a woman to travel, work or otherwise function normally in society.


The most telling element of this breathtakingly misogynistic rant is the assertion of ‘guardianship’ of men over women, rather than the apparently horrifying notion of equal partnership. The Brotherhood statement time and again asserts male privilege and male primacy. It casts gender equality as a mortal threat to Islamic values and Arab culture.


To this mentality, female sexuality – above and beyond social, political, and economic freedom and equality – is the primary threat to be contained and controlled. This is the howl of a male hysteria in full-blown panic mode, but also a calculated political tool.


So, Egyptians can expect the Brotherhood in the long run to do its utmost to reverse the modest gains that women have made in Egypt over the past century. Even in Saudi Arabia, the trend is towards granting women greater rights, not rolling the clock back.


Although the Brotherhood has the presidency, it still has neither full control of Egypt’s politics nor has it transformed Egyptian society. Contrast its statement with that of Egypt’s official representative to the Commission.


So much for the notion of the Brotherhood as moderate, open-minded, equitable, or pluralistic, or the idea that power will moderate them, at least as an organization. By releasing this document now, to the surprise, dismay, and astonishment of many, the Brotherhood has proudly reconfirmed its core orientation as authoritarian, intolerant, oppressive, and, above all, viciously misogynistic.


No one in Egypt or abroad will be able to claim “we had no idea” about the Brotherhood’s actual ideology, because they just gleefully shoved their unrepentant extremism down our throats. Their rule is not just a threat to Egyptian women, but to everybody.

Of Course Settlements Are Illegal

One of the most tiresome things about a long-term engagement with the Israeli-Palestinian conflict is the endless need to push back against those who insist on living in a more pleasurable but entirely fictive alternate reality. For many on both sides, the realities on the ground, or the legal and political facts, are simply too painful or disruptive to be acceptable. So they neurotically retreat into an alternate universe in which everything feels better.

There are innumerable examples of this on the Palestinian side, but among hard-core supporters of Israel, one of the most persistent imaginary realities is that there is no occupation and/or Israeli settlement activity is not prohibited by international law. Writing in the Jewish Journal, the reliably hawkish David Suissa has just engaged in an extended exercise in this kind of sophistry.

Mideast Israel Palestinians
Jewish settlers stand on the rubble of a house destroyed by Israeli authorities in the West Bank, near the settlement of Migron, on Sept. 5. (Sebastian Scheiner / AP Photo)

The reason this is such a persistent shibboleth of hawkish pro-Israel propaganda is that occupying powers are bound to abide by the extensive international law and treaty obligations delineating the rights and responsibilities that accrue to this status. And the problem is that so much of what Israel has been doing in the occupied Palestinian territories is in direct and undeniable contravention of international law.

Like so many before him, Suissa makes two manifestly false claims. First, he flatly denies the territories are occupied. Second, he asserts that Israel has “a legal right to settle in the West Bank.” He urges Israel to find a good lawyer to make these claims. But no serious attorney is going to take on this case, because it can’t possibly be maintained.

The fact that the territories seized by Israel in the 1967 war are occupied and that Israel is the occupying power is affirmed by a mountain of United Nations Security Council resolutions (the very body authorized by the U.N. Charter to make such determinations). These resolutions were all voted for or permitted, and sometimes drafted, by the United States.

They begin with Security Council Resolution 242 of November 22, 1967. 242 begins by “Emphasizing the inadmissibility of the acquisition of territory by war,” which means that Israel cannot claim to have acquired any territory in the 1967 war. This is a central pillar of the U.N. Charter itself. Second, 242 calls for the “Withdrawal of Israel armed forces from territories occupied in the recent conflict.”

So the very first Security Council resolution following the 1967 war clearly identifies the territories as occupied, and Israel as the occupying power. There followed a mountain of subsequent Security Council resolutions—all voted for or approved by the United States—which reiterate that the territories are occupied and Israel is the occupying power.

Of particular note is Security Council Resolution 476 (1980), which “Reaffirms the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem.” So the U.N. Security Council was thoughtful enough to clarify that not only is Israel the occupying power in all the territories conquered in 1967, and obliged to end its occupation of them, but also specified that this includes Jerusalem.

There are many other aspects of international law that affirm the occupation as a legal and political fact, including the advisory opinion issued by the International Court of Justice on the West Bank separation barrier. The bottom line is that it is a legal and political fact, not an opinion or subject of dispute, that the territories seized in 1967 are under occupation and Israel is the occupying power. One may have one’s own opinions, but not one’s own facts. And in the matter of law, we have competent authorities that serve as arbiters of international legal and political fact, including the Security Council and the ICJ. Indeed, no competent authority has ever challenged this idea, although biased individuals have tried to argue against it with any amount of spuriousness.

Having established that the territories are occupied, and that Israel is indeed the occupying power, there can be no question that settlement activity is strictly prohibited. The clearest prohibition comes from the Fourth Geneva Convention, Article 49, Paragraph 6, which reads: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

Some apologists for the settlement project have tried to argue that “transfer” in Paragraph 6 only refers to involuntary transfer, not voluntary settlement. This is clearly false. First, there are numerous other provisions in the Convention that prevent involuntary transfer of civilians. Second, the concurrent Red Cross commentary intended to serve as a contemporaneous explanation for the thinking informing each aspect of the Convention deals with Paragraph 6 at length.

This vital commentary demonstrates that Paragraph 6 was adopted to protect the human rights of the civilian population living under occupation, not civilian citizens of the occupying power: “It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.”

As a further clarification, the commentary adds, “It should be noted, however, that in this paragraph the meaning of the words ‘transfer’ and ‘deport’ is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.”

In other words, according to the Red Cross, which oversaw the drafting of the Convention, Article 49, Paragraph 6 is intended as a human rights protection for people living under foreign military occupation who have the right not to have their land colonized. This is precisely what Israel is doing, and as noted above, as an occupying power they are fully bound to respect all of the Fourth Geneva Convention, including Article 49, Paragraph 6. The settlement project is thus not only strictly prohibited, it is illegal because it is a direct violation of the human rights of Palestinians living under Israeli occupation.

From the outset of the occupation and the settlement project, the Israeli government has been aware of this. A top-secret memorandum from September 18, 1967 by T. Meron, a Legal Adviser to Israel’s Ministry of Foreign Affairs, is blunt about the legal situation facing the prospect of settling the occupied territories.

Meron determined that, “The prohibition [against settlement activity in Article 49] therefore is categorical and not conditional upon the motives for the transfer or its objectives. Its purpose is to prevent settlement in occupied territory of citizens of the occupying state. If it is decided to go ahead with Jewish settlement in the administered territories, it seems to me vital, therefore, that settlement is carried out by military and not civilian entities. It is also important, in my view, that such settlement is in the framework of camps and is, on the face of it, of a temporary rather than permanent nature.”

So, from the outset, the Israeli government was fully aware that, at least from the point of view of international law and the unanimous consensus of all other governments, its settlement project was, by definition, illegal.

The final refuge that Suissa and many others, including some he cites, seek in trying to deny the legal and political fact of occupation and the prohibition against settlement activity and so much of the rest of what Israel has done in the occupied Palestinian territories, is to claim that there is no occupation because there was no clear sovereign in the territories in 1967. However, there is no aspect of international law that requires a clearly established prior sovereignty for a territory to be considered under military occupation. These arguments have never held any water in the Security Council, at the ICJ or any other international or multilateral legal or diplomatic body, or with any government outside of Israel.

Indeed, even the government of Israel itself is ambiguous about whether the territories are occupied or not. Sometimes it openly cites the ongoing occupation to justify military activities—such as some instances of the seizure of land for military purposes—or other measures that are, in fact, consistent with the rights of an occupying power under international law. But it simultaneously denies there is any occupation when it comes to settlement activity and other human rights abuses against Palestinians prohibited to occupying powers under international law.

Suissa insists there is no occupation but a “dispute.” We hear this a lot from supporters of the occupation, settlements and annexation. But if there is a “dispute,” it is not between Israel and the Palestinians or the Arabs. It is between Israel and every single other government and international authority in the entire world.

It’s a little bit like proclaiming that while everyone else observes the sky is obviously blue, I insist it is green, and therefore this somehow constitutes “a dispute.” This is not a dispute. It is a willful and manipulative distortion of clearly established facts in a self-serving manner by an interested party that is trying to rationalize actions that are manifestly illegal. These actions—especially settlement activity in areas under military occupation—have been prohibited specifically because they are a gross human rights violation.

The experience of World War II demonstrated that peoples living under occupation must be protected from having their lands seized from them and colonized through force of arms. In the immediate aftermath of that terrible conflict, this was explicitly and categorically codified in the Fourth Geneva Convention, to which Israel is a signatory.

That’s not an opinion. That’s a legal and political fact.

Libya’s ‘Political Isolation Law’ purge?

The proposed “political isolation law” in Libya is not only a monument to effrontery and audacity. It’s a betrayal of the principles and strategy central to the revolution’s success. Political dynamics in Libya are complex and rapidly shifting. But this proposed bill is a particularly crude and straightforward power-play.


It boils down to this: Islamist parties were trounced by a nationalist coalition led by Mahmoud Jibril in the party section of the recent parliamentary elections. After failing to form an alliance with the majority independents in parliament, Islamist factions were unable to prevent the non-Islamists from steering their own candidate, Ali Zeidan, into the Prime Minister’s office. Libyan Islamists were stunned by how disadvantaged they were compared to their ideological comrades in Egypt and Tunisia. And they’ve decided to try to do something about it: purge the revolution and the new system.


The law they are attempting to bully the rest of the country into accepting is virtually insane. After more than four decades of rule by Muammar al-Qaddafi, anyone who played almost any role in the former regime at any stage would be precluded from holding any significant public office. This includes minor bureaucrats, low-level diplomats, and the overwhelming majority of Libyans with technical expertise or government experience.


The bullying isn’t just political. On March 5, hundreds of violent protesters disrupted Congress demanding passage of the bill, holding lawmakers hostage and opening fire on vehicles. On March 7 another gang of thugs attacked Al-Assema TV after it broadcasted debate on the law, abducting several key figures, some of whom remain missing. And there have been at least two major assassination attempts against Congress President Mohammad Magarief, at least one associated with this campaign of intimidation.


Last week I was involved in a lengthy TV debate with three Libyans, one of whom was a passionate supporter of this unspeakable bill. In defense of this proposed legislative coup d’état, all he could do was keep listing the crimes of the former regime. No one, of course, disputes this.


I bluntly called this a betrayal of the basic principle of the revolution which created a relative unity – of a kind that has eluded, for example, both political and armed opposition groups in Syria – the ‘big tent’ principle. It didn’t matter if you had spent decades outside the country, years in prison, or recently defected from the government. If you are willing to take up activism and arms against Qaddafi, you were welcome into the fold.


He dismissed all of this, denouncing everyone who ever served the former regime in any capacity. I asked him again and again if it were not true that this law would ban political participation by key figures in the revolution and the new system: National Transitional Council leader Moustapha Abdul Jalil, the late revolutionary commander Abdel Fatah Younis, Prime Minister Zeidan, Congress President Magariaf, and, of course, Jibril. I fired these names at him time and again and he categorically refused to deny that any of them would be exempt from exclusion, because, as he put it, “all defectors were rats leaving a sinking ship.”


I pointed out this would be nothing less than a purge, and that the motivation for this was that they lost the election rather badly and, as things stand, have little hope of improving their position. His only answer was that he was in Libya while I was in Washington, which, I noted, meant he had no arguments at all.


But, I continued, I didn’t think he was really as crazy as he was pretending. The proposed law has all the hallmarks of a red herring. There is no doubt that at its core is an effort by Libyan Islamists to rejigger the political system in their favor, having been utterly crushed in the last election. And they are cynically using populist politician Abdurrahman Sewehli of the Union for Homeland party – who takes the strongest line in favor of the proposed law and ‘credit’ for the storming of Parliament – as their front man and cat’s paw. And since Zeidan and Magariaf have been at each other’s throats for months on several issues, their task is all the easier.


What may really be at work is a more subtle agenda pushed by the Qatar-backed and highly influential Libyan Islamist Ali Sallabi. He is appealing for a less draconian exclusion law on a virtually daily basis. By over-bidding so wildly at this point, and having Sallabi pose as a “moderating force” suggesting a “more reasonable” set of exclusions, the Islamists may hope that everyone breathes a sigh of relief at a less draconian measure that nonetheless seeks to force a change in the balance of power in the country. In fact, they ought to be profoundly alarmed at what, in almost any form, can only serve as a ruthless power grab and attack on democracy and pluralism.

Hamas’s Desengaño With Morsi

English has by far the largest vocabulary of any language, but there are still times when we have to look beyond its confines to convey a particular meaning. There is a Spanish word, desengaño, which connotes a combination of disappointment, disenchantment, disillusionment and despair, for which we have no precise English equivalent. And this, surely, best sums up the current attitude of the Hamas rulers in Gaza towards Egypt’s new government.

Palestinian girls walk in front of a photograph of Egyptian President Mohammed Morsi shaking hands with the Palestinian Hamas leader Ismail Haniya, in Gaza City on August 29, 2012. (Mohammed Abed / AFP / GettyImages)
Palestinian girls walk in front of a photograph of Egyptian President Mohammed Morsi shaking hands with the Palestinian Hamas leader Ismail Haniya, in Gaza City on August 29, 2012. (Mohammed Abed / AFP / GettyImages)

Many Hamas leaders were apparently convinced that the rise of the Muslim Brotherhood in Egypt and elsewhere would mean a radical transformation of its fortunes and hold the key to its eventual victory over secular nationalists for control of the Palestinian national movement. At a minimum, they expected the new government of President Mohammed Morsi would adopt a much friendlier foreign policy, ease the blockade, pressure Israel and provide Hamas with a steady stream of support.

As the months have dragged on, it’s become clear that this not only isn’t the case, but that the Morsi government is at least as problematic from Hamas’s perspective as its much-hated Mubarak predecessor. The recent flooding of Gaza smuggling tunnels by the Egyptian military with raw sewage (in contrast to Mubarak’s occasional use of tear gas), pursuant to an Egyptian court order to close all such tunnels, is only the last straw.

Egypt has moved to stop the transfer of all goods, including huge shipments of fuel, through the tunnels and has again closed the Rafah border crossing. The Egyptian side of the blockade has never been so intense. These actions have had a devastating effect on the Gaza economy. They have brought reconstruction efforts almost to a halt, and sent the price of cement and building materials soaring. And they are costing both Hamas and Gaza businesses at least hundreds of millions of dollars, if not more, in lost revenues.

Moreover, Egypt reportedly recently refused to allow Hamas to establish a formal office in Cairo. Even more insultingly, Egyptian Muslim Brotherhood officialsreportedly urged Hamas to abandon “armed struggle” against Israel and follow their example and “implement jihad in other ways.” Hamas, of course, denies these reports, but they scan perfectly with all other available information and political logic.

Several Hamas leaders in Gaza have erupted in anger in recent days, in spite of obvious efforts for many weeks to contain their rage and express “understanding” of Egypt’s predicament. Senior Hamas leader Mahmoud Al-Zahar expressed the group’s growing infuriation by declaring, “The previous [Egyptian] regime was cruel, but it never allowed Gaza to starve.” Yet Hamas leaders, including Al-Zahar, continue to pin their hopes on an eventual transformation of the Egyptian policy and, in spite of everything, pledge undying support for Morsi.

After all, what other choice do they really have? From a practical point of view, the answer is to increase trade with Israel, and Israeli-permitted exports to Europe and elsewhere. And, to their considerable chagrin and embarrassment, this is exactly what Hamas leaders have been doing, insofar as the Israelis have allowed it. AsThe Economist noted, this “makes Hamas more dependent on—and subservient to—Israel, to ensure vital supplies continue,” as opposed to what they expected to be their new major partner and, indeed, salvation: the Muslim Brotherhood government in Cairo.

No doubt from a purely ideological and theoretical perspective, the Muslim Brotherhood in Egypt is more sympathetic to Hamas at every level than the Mubarak regime had been. But there are ample reasons why a number of Israeli analysts recently argued, as I also have several times in the past, that Egypt’s foreign policy hasn’t actually changed even if its official rhetoric has shifted somewhat.

First, while the ideology of Egypt’s presidency may have changed, its interests, challenges and options have not. Morsi may wish he lived in a different world, or inherited a different country from Mubarak, but he hasn’t. Egypt is still Egypt, Egyptians still Egyptians, and their interests will always come first for them. Among other things, Egypt has a vested interest in not being sucked back into control of, and responsibility for, Gaza. And it has a mutually advantageous peace treaty with Israel that no rational government is going to gamble with.

Second, Egypt’s national security policy remains both de facto and de jure in the hands of the military, which does not share the president’s ideology. So even if Morsi were inclined to intervene on behalf of Hamas at the expense of Egyptian interests, the military would almost certainly prevent this. As an Army spokesperson rather gently explained, “We realize how much our brothers in Palestine suffer, but that doesn’t mean that the Egyptian Armed Forces will allow anyone to harm national interests.”

Third, Egypt has a massive national security crisis in the Sinai Peninsula, particularly in the regions bordering Gaza. There, political extremists, terrorists, bandits and others run rampant, killing Egyptian soldiers, attacking the gas pipeline to Israel and disrupting almost all Egyptian government activities in the area. This is not only a national security issue for the military. It is a grave political challenge for Morsi, who cannot be seen as a president who is incapable of securing strategically vital areas of his own country.

It must be understood that smuggling tunnels from Egypt to Gaza run in both directions. There is a symbiotic and cooperative relationship between Hamas and other militant groups in Gaza and those in Sinai. Therefore there is no reason to suspect that Morsi is inclined to restrain the Egyptian military, despite any abstract ideological affinities towards Hamas.

For these reasons, and more, there’s no reason to expect that Egypt’s basic stance towards Hamas, Gaza, Israel or the rest of the region is likely to undergo any major transformation in the foreseeable future. Rhetoric on both sides notwithstanding, relations between Egypt and Gaza have become in every meaningful sense worse under Morsi than they were under Mubarak. As an Islamist, Morsi can more easily claim to his public that he’s acting in the essential national interest, perhaps even contrary to his own inclinations, and imply that it’s really the military that’s to blame.

As for Hamas, all they are left with is collapsing popularity, a retreat into increased reactionary social repression and misogyny to play to their core base and bolster their Islamist credentials, and the increasingly threadbare fantasy that Islamist rule in Cairo and elsewhere will save Gaza and deliver control of the broader Palestinian national movement to its de facto rulers.

Who’s really exploited in ‘Django Unchained’?

Quentin Tarantino’s Django Unchained is a clever and insidious cipher. Through its ambiguities, contradictions, evasions, and doubled-consciousness, its dense imagery counterintuitively constructs a blank screen onto which various audiences can project their own fantasies. But these fantasies themselves are split between politically correct and socially determined responses, and far deeper, atavistic, and darker impulses the film deliberately pricks but does not resolve.


Tarantino is obsessed with film history and specializes in the generic mash-up. His are films about being films, deliberately derivative collages.


Django misleadingly announces itself in its opening sequence as a “spaghetti western,” exemplified by director Sergio Leone and composer Ennio Morricone. Tarantino has aped some of Leone’s sequences and lifted Morricone passages before. His new film derives its name directly from Sergio Corbucci’s 1966 Django, perhaps the most violent of all spaghetti westerns.


But actually, Django Unchained is a reinvention of 1970s “blaxploitation.” Tarantino has tapped into this genre before in several films, most notably Jackie Brown. His last film, Inglourious Basterds, is named after Quel maledetto treno blindato, a 1978 World War II flick that included Fred Williamson in a classic blaxploitation role.


Django owes most to the 1975 potboiler Mandingo. Not only are primary themes and tropes lifted directly from Mandingo, entire scenes and settings are virtually replicated. Django comes very close to being a remake of Mandingo, with spaghetti westerns, Clint Eastwood’sUnforgiven, and other sources added in.


But Django operates in a radically different cultural environment thanMandingo did in 1975. With Barack Obama in the White House, there’s no need to have a runaway slave declare, “This is much our land as it is your’n. And after you hang me, kiss my ass!” That much has been established.


Django isn’t a particularly violent film by Tarantino or Hollywood standards. And it pales in comparison to Cormac McCarthy’s blood-soaked masterpiece novel Blood Meridian. But it is a highly sadistic one.


Django is a revenge fantasy. Along with love stories, these are the oldest, most ubiquitous human narratives. In Western culture, the thread runs from The Iliad to Hamlet, from Rambo to gangsta rap.


Inglourious Basterds was a revenge fantasy about the pleasure of killing Nazi Germans. And Dr. Schultz — the bounty hunting German dentist in Django who is metaphorically extracting the putrefaction from America’s rotten maw — functions as a kind of apology. Nonetheless, in the terms of a mercifully passé school of criticism, the only good white man in the film is, indeed, a dead one.


Everyone with a sense of justice roots for the revenge of the underdog. And there must always be a kind of catharsis in seeing violent retribution exacted on the likes of slavers.


But there is a more insidious dynamic at work in Django, just as there was in Mandingo and contemporaneous Holocaust films of the 70s. The elaborate and lingering depiction of sadistic white power over black bodies invokes not only indulgence in the vicarious pleasures of cruelty, but more specifically provokes a liminal nostalgia for the deep brutality of America’s racial past.


Might, for instance, the scene where Django is about to be castrated, trigger an irresistible impulse in some to want to relive such an order of total power – even when packaged as justification for an equally brutal revenge? Do we read this as sublimated racist sadism because Djangois written and directed by a white man? Would we see it as sublimated masochism had it been by a black director? And what about audience response: white, black, and other?


Perhaps the coldest moment of revenge in Django is the sudden killing of the young white lady of the plantation. There’s no space in the moral economy of Django for pausing to consider its ethical implications. And, indeed, all women in the film are mere objects, without the least agency or personalities. This means its dubious racial politics are compounded with terrible gender sensibilities.


And, unlike Mandingo, which foregrounds it, white women’s desire for black men is ostentatiously and quite unconvincingly avoided in Django, the film’s most telling blind spot. This is unquestionably a male fantasy, and a fairly disgraceful one at that.


The “exploitation” in 1970s blaxploitation was that of a white-driven entertainment industry marketing to a theretofore ignored constituency by shamelessly playing on its fantasies, fears, and aspirations. Tarantino’s Django is clearly aimed at broader audiences, but may be repeating similarly exploitative, manipulative gestures at multiple registers simultaneously.


In spite of everything, it was almost impossible most white and black American audiences would respond to Django similarly, particularly at the visceral and liminal levels, and commentary since its release strongly suggest this is indeed the case. Tarantino knows that and is playing on everyone’s neuroses quite ruthlessly. Familiar blaxploitation meets conscious white-guiltsploitation and liminal whitepower-nostalgia-sploitation. Sadism, masochism, and that witches’ brew of American racial anxieties just made Tarantino yet another fistful of dollars.