Analysis from Israel

The deteriorating Egyptian-Israeli relationship has produced an interesting side effect: For the first time in 30 years, Israelis are seriously questioning the
wisdom of “land for peace.” Even veteran land-for-peace advocates like former Jerusalem Post editor-in-chief David Makovsky now acknowledge war with Egypt is no longer unthinkable. Recognition is growing that Egypt’s nonstop demands to boost its forces in Sinai threaten the Israeli-Egyptian treaty’s main achievement: the demilitarization of Sinai, which ensured Egypt could never attack Israel by surprise.

Hence Elliot Jager, another erstwhile land-for-peace advocate (and former senior Jerusalem Post editor), warned in Jewish Ideas Daily today that “If the treaty with Egypt must be gutted in order to save it, something may be terribly wrong with the underlying land-for-peace approach.” Guy Bechor, a regular columnist for the mass-circulation daily Yedioth Ahronoth, bluntly declared the land-for-peace formula “dead” last week. Even Akiva Eldar of Haaretz, a diehard leftist who still wants an Israeli withdrawal to the pre-1967 lines, admitted despairingly after last month’s cross-border terror attacks from Sinai that “When the border between Israel and Egypt is open to murderers, it’s harder to condemn Israel’s leaders for refusing to utter the words ‘negotiation on the basis of the ’67 borders.'”

As Bechor noted, the land-for-peace approach has several inherent problems. First, it encourages the Arabs to view peace as a concession Israel must pay for rather than something of value to them. Second, it trades an easily-reversed asset (peace) for an almost irreversible one (land), which undermines deterrence: The Arabs can abrogate their side of the bargain without fear of losing the quid pro quo they received. I’d also add a third: It encourages war by making aggression cost-free. After all, the land in question was captured in a defensive war against three Arab states in 1967; agreeing to return every last inch – as Israel did in Sinai and Gaza and is now expected to do in the West Bank – thus sends the message Arabs risk no permanent territorial losses by attacking Israel.

All these evils are obviously compounded when territory is given to people who loathe Israel (as both Egyptians and Palestinians do). Many Westerners seem to think this hostility would disappear if Israel would just “end the occupation.” Prize-winning reporter Anthony Shadid, for instance, asserted in the New York Times last month Egypt’s current hostility stems from “deep popular resentment over the plight of Palestinians,” thus implying it would vanish were this plight alleviated.

There’s only one problem with this theory: As a 2007 Pew Global Attitudes poll found, fully 80 percent of Egyptians think “Palestinians’ rights cannot be taken care of if Israel exists.” In short, their problem isn’t Israel’s “occupation” of the West Bank, it’s Israel’s very existence. And 77 percent of Palestinians say the same.

It’s too late to reverse the withdrawal from Sinai, but it’s not too late to avoid repeating the same mistake in the West Bank. Thus, if Egypt’s new hostility awakens Israel to this danger in time, it will prove to have a silver lining.

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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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