Analysis from Israel

I’ve given up expecting peace-process zealots like Secretary of State John Kerry or the European Union to pay any heed to mainstream Israelis (i.e., the 83 percent who think even withdrawing to the 1967 lines and dividing Jerusalem wouldn’t end the Israeli-Palestinian conflict). But recently, even Israel’s far left has become too “right-wing” for these zealots. That begs an obvious question: Since any peace deal requires two sides, how do they expect to close one by adopting positions so extreme even Haaretz columnists won’t support them?

Two regular Haaretz contributors and long-time peace advocates wrote columns this month decrying the current approach. First, former Haaretz editor-in-chief David Landau blasted Kerry for treating veteran Jewish neighborhoods of East Jerusalem as “settlements.” Next, psychology professor Carlo Strenger explained why the Syrian crisis makes a full West Bank withdrawal impossible.

Much of Landau’s piece restated what has long been obvious: the “indiscriminate lumping together of Jerusalem suburbs with far-flung” settlements has encouraged mainstream Israelis to do the same–and therefore oppose a construction freeze in either–and made it impossible for Palestinian Authority President Mahmoud Abbas to negotiate without a total freeze, because he can’t demand less than Washington does. But Landau also added a new twist: “Kerry’s ham-fisted lumping together of Ramot and Gilo with West Bank settlements” has even forced Israeli leftists to side with Prime Minister Benjamin Netanyahu against Washington (and, he might have added, the EU as well). It is “veritably forcing myriad moderate Israelis, who long for peace and the two-state solution, to bridle, with the Netanyahu camp, at the entire admonishment.”

Strenger’s piece, however, tackled a broader problem: the ongoing implosion of Syria. Peace activists have long advocated a deal with Syria, he noted, but “most Israelis now shudder when they think what would have happened if Israel had returned the Golan Heights. Al-Qaeda and other extreme Islamist groups would be at the shore of the Kinneret, creating an unbearable security risk.”

This lesson matters for the West Bank, he wrote, because despite his conviction (incidentally not shared by most Israelis) that Abbas truly wants peace, “Israelis ask a simple question: do you have the ability to prevent a takeover of Palestine by extremists?” And the obvious answer is no:  Hamas remains committed to Israel’s destruction, and Abbas can’t guarantee it won’t take power following an Israeli pullout.

“After all, Hamas once won the elections in Palestine,” Strenger recalled. Hamas also routed Abbas’s forces in less than a week when it staged a military takeover of Gaza in 2007–a fact Strenger bizarrely omits, but that most Israelis haven’t forgotten. Hence the inevitable conclusion:

In the Middle East’s current situation no Israeli government will renounce security control of Palestine’s eastern border and no Israeli government will return to the 1967 borders in the foreseeable future, when there are chances that radical Jihadist elements might attack Israel from there.

But another failed push for a deal demanding exactly that won’t merely increase distrust on both sides and thereby reduce the chances of peace in the future–a point both Strenger and Landau make. It also means diplomats aren’t pursuing interim measures that could defuse the conflict and actually increase prospects for future peace–measures that, as political scientist Shlomo Avineri noted in this insightful analysis, are routinely employed in other conflicts where final-status deals aren’t immediately possible, like Cyprus or Kashmir. Thus by pushing a final-status deal now, Kerry and company are actively making things worse at the expense of steps that could make things better.

And if that’s what even Israel’s far left is saying, isn’t it time for international diplomats to start listening?

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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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