Tag Archives: #Palestine

The US is in a bind over the ICC seeking arrest warrants for Israeli and Hamas officials

This op-ed was published by The National on May 21, 2024

The application by International Criminal Court Prosecutor Karim Khan for major indictments against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant could constitute a significant step in international jurisdiction over war crimes and crimes against humanity.

But it has also drawn the ire of the Joe Biden administration in Washington, for two reasons. First, the US has always rejected the very concept of the ICC (fearing the potential prosecution of its own military and civilian officials); and second, it exposes significant weaknesses and contradictions in the President’s policies. The Prosecutor’s brief was remarkably well-balanced, fact-based, compelling and impartial.

It laid out clear grounds for the international criminal indictment of both Hamas and Israeli leaders. Yahya Sinwar, Mohammed Deif and Ismail Haniyeh of Hamas would be charged with authoring, organizing and overseeing murder and kidnapping against Israeli civilians. Mr. Netanyahu and Mr. Gallant would be accused of using starvation of civilians as a matter of policy and, therefore, a weapon of war.

All five appear manifestly guilty of these transgressions, and the key point of Mr Khan is that it makes absolutely no moral or legal sense to hold one party accountable for its lawless brutality, but not the other. Through this symmetry, or balance, Mr Khan has revealed precisely the bleeding heart of the tragedy.

Hamas led an attack into southern Israel that involved hunting down, killing and kidnapping innocent civilians in kibbutzim and a nearby music festival. It was a bloodthirsty killing spree. Armed struggle against military occupation does not exempt insurgent groups from the laws of war. Fighting occupation doesn’t allow anyone to murder and kidnap civilians.

Israel responded with what Mr Netanyahu promised on October 7 “a mighty vengeance”. That’s practically the only thing that’s happened. Israel hasn’t achieved any other stated aims, such as eradicating Hamas, freeing hostages or restoring security for its public.

Instead, it has killed more than 35,000 Palestinians, most of them women and children, in addition to an untold number still buried under the rubble. Several entities – including South Africa in an application to the International Court of Justice (which has jurisdiction over states, while the ICC has jurisdiction over individuals) – have accused Israel of genocide for this mind-boggling death toll.

Yet genocide charges will take years to adjudicate and hang on a difficult claim to prove, namely intent.

Where Israeli leaders are most vulnerable is the systematic denial of food, water, medicine and other essentials to the Palestinian population, which it has driven from one part of the Gaza Strip to another, willy-nilly, as its military has rampaged through the territory often shooting anything that moves, including escaping Israeli hostages, journalists and humanitarian aid workers. Israel’s de facto blockade has strangled Gaza, creating a man-made famine in the north, and a dire situation everywhere.

The biggest problem for Mr Biden is the manifest truth of the accusation. He dismisses it at his peril, especially because he implicitly made the same point about Israel using food as a weapon of war during his own State of the Union address in January. His professed outrage is both a reflection of traditional, yet indefensible, US policies and entirely political.

The problem for Mr Biden is not just that he knows about the horrendous impact of Israel’s blockade. It is also that his own government has documented it and has, therefore, built a maritime port to try to get aid to the Palestinians despite Israel’s vicious recalcitrance. The killing of the World Central Kitchen’s aid workers was almost certainly another manifestation of Israel’s use of starvation as a weapon of war, and a clear message not to interfere with that too brazenly.

The Biden administration is further aware that every time Israel negotiates indirectly with Hamas, the question of humanitarian aid – including food and medicine – is on the table. Indeed, humanitarian supplies to Palestinian civilians are a counterpart to the issue of Israeli hostages held in Gaza, in the negotiations between belligerents. Yet Mr Biden cannot acknowledge this without breaking long-standing American traditions of opposing any ICC charges against allies, taking a huge political risk, and betraying his own sentimental pro-Israel instincts.

It’s much easier just to denounce the whole thing. At the same time, his administration doesn’t seem to have any objection to potential charges against equally manifestly guilty Hamas leaders. That suggests the ICC can reasonably assert jurisdiction over some belligerents but not others.

Worse, the proposed ICC action is based on the fact that all of this has occurred in, or coming out of, “the state of Palestine”, in its capacity as a non-member observer state in the UN General Assembly. Israel, like the US, isn’t a party to the ICC, but the state of Palestine is, and that should certainly give the court jurisdiction over everything that has happened in Gaza and coming out of it.

The greatest complication is that the Biden administration has based its Middle East foreign policy strategy and vision on securing Israeli acquiescence to the right of Palestinians to a state (which Israel has never formally acknowledged), and on Israeli agreement to enter into a process to eventually establish and recognise that state. Insisting that Israelis cannot be held responsible for what they do in the nascent Palestinian state effectively negates the principle of the two-state solution, even if that state now operates mainly as a prototype in multilateral institutions.

Holding Hamas leaders accountable for their brutality is just fine, apparently, but Palestinians must wait until they get their state from Israel before they can be protected from Israeli war crimes in areas that would undoubtedly become a key part of that indispensable and necessary state? That’s the preposterous moral and legal position implicit in the Biden administration’s harsh derision of Mr Khan’s arrest warrant request.

That’s too convoluted, contradictory and contorted a position to hold up in anything but empty campaign rhetoric and as miserable humbug. It won’t do, because it only adds to the humiliation and degradation already inflicted by excessive support for Israel’s intentional yet apparently aimless rampage of vengeance in Gaza upon Washington’s international standing and strategic position globally, and especially in the Middle East.

It’s a moral low point in an already sorry American saga.

Is US-Israel disagreement on a two-state solution unresolvable?

 

This op-ed was published by The National on January 22, 2024

Last week, the penny finally dropped between the US and Israel. Israeli Prime Minister Benjamin Netanyahu owned up that he’s been dissemblingfor decades, at least in English and in public, about being open to a two-state solution. He flatly ruled out any form of Palestinian statehood without offering an alternative addressing basicPalestinian human rights like citizenship. This has effectively been Israel’s consistent policy, with a few notable hiccups, since the assassination in 1995 of former prime minister Yitzhak Rabin by an Israeli extremist.

Since at least 1990 implicitly, and explicitly once George W Bush formally endorsed in 2002, Palestinian statehood has been a US foreign policy goal. Even Donald Trump framed his 2020 proposal as a two-state solution, even as it envisaged Israel annexing 30 per cent of the occupied West Bank, including the Jordan Valley, which would have rendered Palestinian statehood effectively nominal. The plan’s titular architect, Jared Kushner, now says it was only meant as “a starting point” for negotiations intended to produce much smaller annexations.

As President, Joe Biden moved quickly to repair US policy by reaffirming Washington’s commitment to a meaningful Palestinian state and opposition to annexation and settlement expansion. More recently, Mr Biden tried to use both the triangular negotiations with Saudi Arabia and Israel, and the post-October 7 crisis to put eventual Palestinian statehood back on the international and, especially, Israeli agenda.

Mr. Netanyahu’s declaration is both ideologically pure and cynically political. Israel is under significant pressure both in public and, especially, private, including from Washington and its potential normalization partner Saudi Arabia, that any day-after scenario to the Israel-Gaza war would, rationally, have to involve forming an alternative, post-Hamas Palestinian government in Gaza (albeit, perhaps, with Hamas’s acquiescence) and, more importantly, the restoration of the peace process but this time as a starting point with Israel explicitly acknowledging the Palestinian right to a state.

I’m always struck by how few people realise that Israel has not just never recognised a Palestinian state, but has never even acknowledged the Palestinian right to a state. To the contrary, all Palestinian-Israeli diplomacy to date has been based on a 1993 exchange of “letters of mutual recognition”, which kicked off the Oslo process. That quickly led to the prevailing status quo in the occupied territories, but ground to a halt as soon as Rabin was murdered.

In a letter to Rabin on behalf of the Palestine Liberation Organisation, which is universally recognised as the legitimate representative of the Palestinian people diplomatically (even by Hamas), chairman Yasser Arafat recognised Israel and its right to peace and security. In reply, on behalf of Israel, prime minister Rabin recognised the PLO as a legitimate interlocutor and undertook to negotiate with it. That’s all.

Many argue Israel implicitly recognized the Palestinian right to a state throughout its negotiations with the PLO, but that is simply not true. Israel never brought itself to acknowledge this Palestinian right, and, in that tradition, Mr. Netanyahu has now categorically rejected it. The world knew that he and the Israeli right were merely pretending to be at all interested in peace while sabotaging a two-state solution diplomatically and strategically developing settlements to make it politically impossible.

His Likud party has Jewish control “from the river to the sea” – a geographical formulation routinely labelled as “genocidal” when Americans declare that “Palestine will be free” in the same area – as a key part of its founding document. At this year’s UN General Assembly, during his address Mr Netanyahu brandished a map that included all the occupied territories in “Israel”.

That’s the ideological part.

Cynically, Mr Netanyahu knows that he’s in big trouble because of the security meltdown on October 7, among other failings. So now he’s been saying, bluntly: “The world is pushing us on Palestinian statehood, even in theory. Re-elect me and I will block this forever.” He’s similarly been claiming “credit” for sabotaging the Oslo agreements, which is no idle boast.

Washington should make important aspects of bilateral relations with Israel contingent on, at a minimum, a formal Israeli declaration recognising the Palestinian right to a state

The Palestinian issue was once a marginal matter in Israeli-American relations, but recent decades have shown howfalse that istime and again. So, now, at least with Mr Netanyahu in charge, and probably almost any other plausible Israeli prime minister as well, the US and Israel are at categorical odds on a two-state solution, and therefore peace.

Mr Netanyahu’s position is simply not tenable for Washington, because – since he’s certainly not willing to offer Palestinians citizenship in Israel – he’s making it virtually impossible to rebut accusations that Israel maintains an apartheid-like political system in the occupied territories. Even in the medium term, Washington cannot be associated with that, particularly under the Democrats, including the over-35s like Mr Biden who, unlike younger liberals, are inclined to give Israel every benefit of the doubt.

Mr. Biden tried to shrug this crisis off by saying: “We’ll be able to work out something.” He tried claiming that Mr. Netanyahu might be prepared to accept a non-militarized Palestinian state, but was immediately and flatly contradicted by Mr. Netanyahu’s spokespeople.

After decades of US and Israeli leaders dancing around the issue and performing extraordinary rhetorical and logical contortions to obscure the fact that their policies on this most central of issues are totally at odds, the jig is up. In a bid to be re-elected, Mr Netanyahu has put extremism on the table and on the ballot.

Even if he loses, unless his successor flatly contradicts these proclamations – which is extremely unlikely since this really is and has long been the Israeli position – then Washington must also stop pretending. The US is either going to have to give up on peace and the Palestinians altogether, which could prove fatal to sustaining its regional leadership, or break with Israel over this dramatically.

Within the next 24 months at the latest, Washington should make important aspects of bilateral relations with Israel contingent on, at a minimum, a formal Israeli declaration recognising the Palestinian right to a state in the normative Westphalian and UN meanings, which still leaves much to be negotiated. Almost 25 years after the disastrous 2000 Camp David summit – when some Arab leaders first began questioning Washington’s post-Cold War leadership – a failure to confront Israel over peace could form part of a historic inflection point marking a potentially fatal crisis of US leadership in this vital region.

Washington must be clear that the “special relationship” is only sustainable with an Israel that’s genuinely open to peace.