January 03, 2020 "Information
Clearing House" -
Last week supporters
of Palestinian human rights were buoyed by
the announcement from the prosecutor of the
International Criminal Court that she had
decided to open a formal investigation
of Israel for war crimes in the occupied
territories, including the ongoing
settlement project in the West Bank and East
Jerusalem and the onslaught in 2014 called
Operation Protective Edge. She is also
investigating Hamas and Palestinian militant
groups for war crimes.
“There is a reasonable basis to believe
that war crimes have been or are being
committed in the West Bank, including East
Jerusalem, and the Gaza Strip,” prosecutor
Fatou Bensouda said.
“You can’t gainsay the fact that at least
at a symbolic level, something significant
happened,” says Norman Finkelstein, who is
an expert on the ICC. “A Rubicon has been
crossed. Or to put it in other terms, an
American red line has been crossed, because
the U.S. has said, Open an investigation and
we destroy you.”
Because of the international politics of
the issue, Finkelstein says that hopes for a
just formal outcome are likely to be dashed
by the court. He believes that the case will
be dismissed on a technical ground, under
tremendous pressure from Israel and the U.S.
The opportunity the case presents is in
shaping public opinion, Finkelstein said in
an interview: for advocates for Palestinian
rights to make their case as the Hague mulls
the legal one. “Pressure can come from both
sides.”
Fatou Bensouda is going
to be subjected to the same sort of
vilification that Israel and its friends
brought to bear ten years ago on Judge
Richard Goldstone, who after accusing Israel
of targeting civilians in Gaza in a UN Human
Rights Council report was smeared with a
broad brush, notably Alan Dershowitz saying
that he was a traitor to the Jewish people.
Ostracized at times even within his South
African Jewish community, Goldstone later
recanted some of the charges.
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Finkelstein is soon to publish a book
about Bensouda’s failure to prosecute an
earlier referral on Palestine to the
ICC, involving Israel’s killing of 10
passengers on board the aid boat the
Mavi Marmara, which was under sail
to Gaza from Turkey in May 2010 when
Israeli commandoes boarded the vessel in
international waters in the middle of
the night.
That case was brought to the ICC by the
Comoros Islands because the boat sailed
under a Comoros flag. But after a years-long
preliminary investigation, Bensouda refused
to launch a formal investigation, and sided
with Israeli arguments about the aggressive
conduct of passengers and crew on the boat,
as somehow justifying lethal force.
Bensouda experienced broad criticism over
that ruling, Finkelstein says– from
officials inside the ICC, from the human
rights community, from
an article by John Dugard, a professor
of international law with great standing,
and from the impending publication of
Finkelstein’s own book, titled J’Accuse.
Bensouda’s
latest decision of December 20 was to
launch an investigation in a second case, a
2015 referral by Palestine, and Finkelstein
sees it as an effort to “recuperate” her
loss of reputation in the Mavi Marmara
ruling.
Part of the reputational damage was
critics threshing Bensouda’s record in the
Gambia. “She was the attorney general under
the Gambian military junta,” Finkelstein
says. “Richard Goldstone was a judge under
apartheid South Africa, but Dugard tells me
it’s totally different. Goldstone had an
exemplary record as a judge in South Africa.
She had a filthy record.”
The 112-page
document that Bensouda published in
announcing her decision to investigate war
crimes looks very good with respect to the
crime of Israeli settlements, Finkelstein
says. The document offers “10,000 pieces” of
evidence on the illegality of the
settlements in the West Bank and East
Jerusalem that go to show what everyone
knows, Israel has taken over lands that were
supposed to provide the territory for a
Palestinian state under international law
and colonized those lands with more than
600,000 Jewish settlers.
Bensouda’s argument that Israel committed
war crimes in Gaza during the Operation
Protective Edge onslaught five years ago
that killed more than 2200 Palestinians,
including 500 children, is less specific.
“If you read her statement, you would think
that Hamas committed as many, if not more
war crimes than Israel during Protective
Edge,” Finkelstein says.
Some on the left have exulted in the ICC
ruling and said that Prime Minister Benjamin
Netanyahu and former army chief of staff
Benny Gantz (who
has bragged of bombing Gaza back to the
“stone age”) may be charged with war crimes
for that assault. “I’m very dubious about
that. The likelihood that they’re going to
actually be convicted approaches zero,”
Finkelstein says.
All the same, Israel is shaken by the
announcement and a battle has begun.
“There’s a legal battle but there’s also
going to be an overt battle, the battle of
public opinion. So yesterday, Benjamin
Netanyahu goes to the Wailing Wall and says
that the ICC is guilty of anti-Semitism,”
Finkelstein says. “Now the other side can
say, oh, is it anti-Semitism to say that
Israeli settlements are illegal?
Anti-Semitism to say that the West Bank and
Gaza and East Jerusalem are occupied,
Palestinian territory?”
Finkelstein’s pessimism about the
ultimate outcome is based on the fact that
Bensouda gave herself an out. Noting that
the court’s jurisdiction over these issues
is disputed by Israel, Bensouda
requested an opinion on two crucial
jurisdictional questions from the court –
called the Pre Trial Chamber – in the next
120 days before actually beginning her
investigation.
“The jurisdictional question breaks down
into two parts. Does this entity called the
state of Palestine qualify as a state that
is competent to lodge a referral or
complaint with the ICC,” Finkelstein
summarizes. “Question number two, they have
to decide what is the territorial
jurisdiction of the court in this case,
which means they have to decide what are the
territorial dimensions of this thing called
the state of Palestine.”
Finkelstein is very worried that Bensouda
has kicked these questions over to the Pre
Trial Chamber because it is headed by a
Hungarian judge, Péter Kovács, who
repeatedly sided with Israel on issues in
the earlier Mavi Marmara case.
Bensouda herself opens the door to Kovács
to dismiss Palestine’s standing to bring the
case in the first place in this paragraph:
The scope of the Court’s jurisdiction
in the territory of Palestine appears to
be in dispute between those States most
directly concerned–Israel and Palestine.
A number of other States have also
expressed interest and concerns on
relevant issues. Notably, Palestine does
not have full control over the Occupied
Palestinian Territory and its borders
are disputed. The West Bank and Gaza are
occupied and East Jerusalem has been
annexed by Israel. Gaza is not governed
by the Palestinian Authority. Moreover,
the question of Palestine’s Statehood
under international law does not appear
to have been definitively resolved.
“I would bet your bottom dollar and mine
that Kovacs will never ever say Palestine’s
a state. Of the other two judges [on the
PTC] he only needs one more vote,”
Finkelstein says.
Israeli has already posted clever
challenges to Palestinian standing, says
Finkelstein. “A lot of it is a crock of
shit, but they quote statements from the
international community and the
Palestinians, that two states is an
aspiration not a reality. So if it’s not a
reality, how can they call on the ICC to
investigate? They’re not a state!”
Israeli officials have also seized on the
fact that Palestine cited the 1947 UN
partition resolution as a basis for the
complaint. That resolution designated
Jerusalem as outside the Jewish and Arab
states that were to be established: “a
corpus separatum.” Israel used this citation
against Palestine, Finkelstein says: “They
themselves acknowledge that Jerusalem is not
part of the Palestinian state.”
I pointed out to Finkelstein that if the
court throws out the Palestinian case on
these grounds, it will leave the occupation
in place, with Palestinians as non-entities
in any official framework. Israeli will
settlers continue to gobble up their lands,
but Palestinians have no recourse under
Israeli law or in international courts.
“The ICC can rule on the settlements if
the U.N. Security Council refers it to them.
And that won’t happen,” Finkelstein adds.
The U.S. will veto.
Finkelstein sees the real force of the
case in the court of public opinion. It will
continue to drive a wedge in U.S. politics
by putting pressure on the Democratic Party
leadership. He says:
There are two poles now in the world.
As everyone knows, the center has
collapsed. One pole has said, fuck the
rule of law. So they don’t care about
the fact that Israel now is an apartheid
state or as Lincoln would say a nation
that’s half free, half slave. So the
Palestinians don’t have anything– and
let’s move on. Just like Modi now did
with the new law in India saying only
Hindus can get citizenship; they don’t
care about the law. And that’s Trump.
On the other hand, the other pole
actually has become more beholden to the
law in the face of this assault by the
Alt right. The law has been now become
their big weapon.
And so the Democratic Party, given
its base, can’t possibly defend a state
that is half slave and half free.
The Democrats don’t want to
acknowledge what is de facto the case,
Israel has annexed those territories.
Because if they are part of Israel and
the Palestinians don’t have rights of
citizenship, they’re living in a slave
state.
So the Democratic Party wants the
veneer that the situation is still in
limbo, that there is still a possible
peace process that hasn’t been resolved
because if they don’t have that veneer,
they’re now part of the alt right that
says we don’t give a shit about the
Palestinians.
I told Finkelstein that a Democratic
president could put pressure on Israel.
“A Democratic president would be just
like Obama,” Finkelstein said, disagreeing,
“and say that there shouldn’t be
international interference, it has to be
resolved between the Israelis and
Palestinians, we can only play the role of
an honest broker and so on, and so forth.
Unless it’s Bernie.”
Finkelstein points out the lengths that
Obama went to to neutralize international
law against settlements and other Israeli
crimes in occupied territories. “Remember,
it was [then-Secretary of State] Hillary
Clinton who took pride in the fact that she
personally killed the Goldstone report. The
Biden administration would do the same.”
I concluded by asking Finkelstein to say
where he is hopeful.
“The battle is going to be played out
behind closed doors and in the court of
public opinion, and if Palestinians and
their allies mount a significant enough
public relations campaign, demanding it, it
will put the PTC [pre trial chamber of the
ICC] under the spotlight and it will put
Bensouda under the spotlight.
“Otherwise, if you let the normal
workings of the court unfold, the
Palestinians will lose everything.”
