The ICC and Israel
The regime of international humanitarian law (IHL) and human rights is marvelous, comprehensive and well-thought-out. The product of decades of conferences, negotiations, interactions between states and civil society, it has defined rights you didn’t even know you have. (Do you know it is a human right to live in a healthy, safe, aesthetic environment?) There’s only one problem: when it come to powerful states (as against Sudan, Serbia, Liberia or Myanmar), it is unenforceable. Just a couple months ago the US threatened to arrest the judges of the International Criminal Court in The Hague if they indict American soldiers for war crimes in Afghanistan.
And so, with the announcement of the ICC Prosecutor Fatou Bensouda that the Court is about to investigate Israeli (and Palestinian) war crimes in the Occupied Palestinian Territory (OPT), the West Bank, East Jerusalem and Gaza, Israel claims — with the US hurriedly agreeing — that it has no jurisdiction, no right to investigate what it does. The UN recognized Palestinian statehood (though with no borders) in 2012 — the US under Obama voted no — and Palestine was accepted as a member of the ICC in 2015 (Israel and the US have refused to join). Palestine immediately asked the ICC to begin investigating Israeli war crimes in the OPT — despite American threats, carried out, that the Palestinians would lose US funding if they pursued their human rights.
The Israeli arguments against an ICC investigation, outlined in a recent Ha’aretz article, show how cynically Israel manipulates the law. Israel has refused to negotiate with the Palestinians for years — it has boycotted them completely for the last 6 years — while it aggressively builds settlements, populates the Palestinian territory, demolish Palestinian homes, displace the Palestinian population and constantly repress it with all the force and violence of Israel’s powerful army. Since Israel routinely violates with impunity virtually every provision of the Fourth Geneva Convention that protects people living under occupation, just trying to get the international community to enforce its own laws has become one of the Palestinians’ last desperate means to save themselves. And yet Israel argues that in pursuing their rights in court the Palestinians are using “the court to decide on political questions which should be settled in negotiations and not in criminal-judicial proceedings.”
In fact, Israel has denied the very fact of occupation since 1967, and claims that it has “valid claims” to the territory, a position with no legal standing whatsoever that was parroted by Pompeo just a few weeks ago. By denying Palestinian statehood and the fact of occupation, and by moving hundreds of thousands of Israelis into the OPT and by creating one de facto state in which the Palestinian majority have no national, civil or human rights, Israel has established a brutal, violent, unjust and illegal apartheid reality — and then denies with great self-righteousness that it cannot be held accountable. Indeed, that trying to hold Israel accountable is “anti-semitism,” a position adopted by law in the US and most of Europe. Always playing the Jewish card, Netanyahu deflected attention from Israel’s illegal and repressive actions by accusing the ICC of saying “it is a crime, a war crime, for Jews to live in their homeland, the land of the Bible, the land of our forefathers.”
Jews have always been at the forefront of the struggle for human rights. The French-Jewish jurist Rene Cassins authored the Universal Declaration of Human Rights and played a role in forging the Geneva Conventions; Raphael Lemkin coined the term “genocide” and shepherded the convention against genocide through the UN. I would argue that human rights and social justice, the prophetic tradition, define Jews abroad far more than religion or loyalty to Israel. In pursuing its illegal policies in the OPT Israel is betraying its solemn promise to the UN as a condition for Israel’s creation in 1948 that it would abide by UN resolutions, dozens of which it has ignored or violated with impunity. Israel has betrayed fundamental Jewish values of justice and human rights, which is why it is losing the younger generation of Jews (in contrast to Trump’s great popularity among young Israelis, which graphically shows the Jewish-Israeli split). And Israel has betrayed its own people by turning itself into a Sparta (OK, a militarized “start-up” Sparta), a repressive apartheid regime that is ultimately unsustainable.
The ICC is a measure of whether the powerful can be held accountable for their actions. Not only Charles Talyor, Omar al-Bashir, Slobodan Miloševi? or Aung San Suu Kyi, war criminals all, but Netanyahu and his military brass, the US officials responsible for Iraq, Afghanistan, Cambodia, Vietnam, Libya, their own inner cities and so much more, European arms dealers, the Chinese repressors of the Uigher and all the rest of them, big and small. Holding the Israelis accountable for what they are doing to the Palestinians is a step along that way.