Analysis from Israel

Palestinian Authority President Mahmoud Abbas is routinely lauded as a “moderate” and a peace-seeker, because unlike Hamas, he generally refrains from openly calling for Israel’s destruction. But anyone who believes he doesn’t share this goal should pay close attention to what he told a group of journalists and Israeli intellectuals on Monday. Amid all the soothing bromides about continued security cooperation and the importance of negotiations was one highly revealing sentence: When the Palestinians seek UN recognition as a state later this month, “We are going to complain that as Palestinians we have been under occupation for 63 years.”

For anyone who needs reminding, Israel’s “occupation” of the West Bank and Gaza began 44 years ago, in 1967. What happened 63 years ago was Israel’s establishment – in the pre-1967 borders. In other words, as far as Abbas is concerned, the problem isn’t Israel’s “occupation” of the West Bank, it’s Israel’s very existence: Even pre-1967 Israel constitutes an “occupation.”

Nor is this position uncommon among Palestinians: A Pew Global Attitudes poll in 2007 found that fully 77 percent of Palestinians think “Palestinians’ rights cannot be taken care of if Israel exists.”

The charitable might say Abbas was simply referring to the Palestinians’ 63 years without a state: At the same time Israel was established, in 1948, Jordan and Egypt occupied the West Bank and Gaza, respectively. But in reality, there has never been an independent Palestinian state; Palestinians have always lived under someone else’s rule. Before 1948 came the 31-year British occupation; before that came the 400-year Turkish occupation; before that came various Arab caliphates that ruled “Palestine” from Damascus; and so forth.

In short, 63 years doesn’t mark the start of Palestinian life under occupation -unless you think Israel’s very existence, and only that, constitutes an occupation. And in fact, that’s precisely what Palestinians do think. That’s why the PLO was founded in 1964, three years before Israel captured the West Bank and Gaza, with the explicit goal of eradicating pre-1967 Israel; that’s why Palestinians never demanded an independent state in the West Bank and Gaza during the 19 years when Jordan and Egypt controlled these areas; that’s why Palestinians rejected the UN partition plan in 1947 and every subsequent offer  of statehood; that’s why Palestinians still demand millions of “refugees” be relocated to Israel under any peace agreement, thereby eliminating the Jewish state demographically (see here, here, here, for instance); that’s why the PA systematically denies the truth of Judaism’s historical ties to this land; and that’s why Abbas still refuses to grant that a “Jewish” state – as opposed to an “Israel” that could be Palestinian-majority via an influx of refugees – has any right to exist.

Abbas, of course, is faithfully reflecting his people’s views – the views of that majority who think “Palestinians’ rights cannot be taken care of if Israel exists,” who see a two-state solution as a mere stepping-stone toward Israel’s eradication. And as long as that remains true, any possibility of an Israeli-Palestinian peace is a pipe dream.

 

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The International Criminal Court’s fundamental flaw

In my last column, I noted in passing that the International Criminal Court’s blatant anti-Israel bias is merely a symptom of a more fundamental flaw. That isn’t self-evident; court supporters would doubtless argue, just as many people do about the United Nations, that while the court’s anti-Israel bias is regrettable, it’s an isolated flaw that doesn’t outweigh the benefit of ending impunity for atrocities.

What convinced me both that the ICC is unredeemable and that the impunity problem has a better solution was actually a book by one of the court’s ardent supporters—Philippe Sands, a law professor and international lawyer who has worked on ICC cases. In East West Street, Sands traces the development of two key concepts in international law—crimes against humanity and genocide—to their respective culminations in the Nuremberg Trials of 1945 and the Genocide Convention of 1948. But for me, the real eye-opener was his description of the international wrangling that preceded the Nuremberg Trials.

Nuremberg is sometimes derided as victor’s justice. And in one sense, it obviously was: Four of the victors of World War II—America, Britain, Russia and France—decided to put senior officials of their vanquished foe on trial. But what was striking about Nuremberg was the massive degree of international concord required to hold those trials. Lawyers representing several very different legal systems and several very different systems of government nevertheless had to agree on every word and even every comma in the indictments. And since those lawyers were acting on their governments’ behalf, political approval by all four governments was also needed.

In contrast, the ICC needs no international buy-in at all to pursue a case. Granted, its prosecutors and judges come from many different countries, but they represent neither their home governments nor their home legal systems. Politically, they represent nobody but themselves. Legally, they represent one particular interpretation of international law—an interpretation popular with academics and “human rights” organizations, but less so with national governments.

At first glance, both of the above may sound like pluses. Prosecutorial and judicial independence are generally good things, whereas many governments and legal systems leave much to be desired when it comes to protecting human rights.

But the ICC’s version of prosecutorial and judicial independence is very different from the version found in most democracies because the latter is not completely unconstrained. In democracies, prosecutors and judges are constrained first of all by democratically enacted legislation, and usually by democratically enacted constitutions as well. They’re also constrained by the fact that they, too, are citizens of their country, and therefore share concerns important to most of their countrymen—for instance, national self-defense—but unimportant to judges and prosecutors from other countries (which those at the ICC almost always will be).

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