Analysis from Israel

That – not settlements or Jerusalem – is Palestinians’ top priority, a new poll shows

The Washington Institute for Near East Policy released a stunning new Palestinian opinion poll last week. The headline finding was that 60% of all Palestinians, including majorities in both the West Bank and Gaza, now openly say their goal isn’t a two-state solution, but “reclaiming all of historic Palestine, from the river to the sea” – aka eradicating Israel. Yet that isn’t actually news for anyone who’s been paying attention: A 2011 poll, for instance, found that even among ostensible supporters of two states, 66% didn’t consider this a permanent solution, but only a step toward the ultimate goal of a single Palestinian state between the Jordan River and the Mediterranean Sea (a finding the new poll replicates). In short, Palestinians are now merely saying aloud what they believed all along.

Thus I was more struck by another finding: Contrary to the international dogma that Israeli construction in the West Bank and east Jerusalem is the biggest obstacle to peace, Palestinians didn’t consider that top priority. Their main complaint, by a large margin, was Israel’s unwillingness to free Palestinian terrorists so they could kill again.

Asked what they considered “the one thing Israel could do to convince Palestinians that it really wants peace and a two-state solution,” fully 45% said Israel “should release more Palestinian prisoners.” That’s more than twice the proportion who chose either a settlement freeze beyond the security fence (19.7%) or willingness to share Jerusalem (17.3%); indeed, it’s significantly more than both combined. The last-place choice (13.8%) was increasing Palestinian freedom of movement and cracking down on settler attacks – two other issues the world deems high priority.

If the Palestinians’ goal were truly a state alongside Israel with its capital in East Jerusalem, one would expect the opposite order of priorities. After all, significantly expanding settlements due to be evacuated under any deal (as opposed to settlements expected to remain Israeli) would make a two-state solution harder to implement. In contrast, jailing terrorists in no way undermines a two-state solution, and might even facilitate it: By reducing Palestinian terror, it increases Israeli willingness to make territorial concessions.

Yet this order of priorities makes perfect sense if the goal is “reclaiming all of historic Palestine.” Once you’re aspiring to remove millions of Jews from Tel Aviv, Haifa and Jerusalem, a few hundred new houses in isolated settlements are irrelevant. But freeing Palestinian terrorists is crucial.

First, on a practical level, Palestinians credit “resistance” – aka terror – with driving Israel from both Lebanon and Gaza (Palestinian pollster Khalil Shikaki terms the Gaza pullout a “victory for violence”). That’s why 64% of respondents said “resistance should continue until all of historic Palestine is liberated.” Yet as Israel’s defeat of the second intifada proved, arresting or killing enough terrorists can dry up the supply of recruits: Once the likelihood of ending up dead or behind bars becomes too high, terror starts looking unattractive to all but the most fanatic. Thus to mount a terrorist campaign massive and deadly enough to “reclaim historic Palestine,” it’s vital to make terrorism low-risk by getting Israel to release imprisoned terrorists.

No less important, however, is the psychological impact: By releasing terrorists, Israel is effectively saying Jews can be killed with impunity, and thereby returning Jews to the status of dhimmis – second-class citizens – that they occupied in the Mideast for centuries. To quote Matti Friedman’s incisive June essay in Mosaic, “Israel is an intolerable affront to so many of its neighbors … not because Jews are foreign here but in large part because they are not foreign—they are a familiar local minority that has inverted the order of things by winning wars and becoming sovereign.” Thus the first step toward reversing this affront is to make Jews revert to feeling like helpless victims, just as they were before Israel’s establishment.

That’s precisely why, as The Jerusalem Post reported last summer, the Palestinians rejected Israel’s offer to freeze construction outside the settlement blocs under the US-brokered deal that restarted Israeli-Palestinian talks. Instead, they demanded a different bribe: the release of 104 veteran prisoners, most of them vicious murderers.

This also explains another surprising finding of the poll: While a narrow majority of Palestinians supports boycotting Israel, a larger majority wants Israeli companies to provide more jobs in the territories and over 80% want more Palestinians to be allowed to work in Israel. The Washington Institute interprets this (not unreasonably) as “pragmatism.” But it also reflects the Palestinian view that the Jews’ proper role is to serve their Palestinian masters: It’s their duty to provide Palestinians with a living, but Palestinians have no obligation to provide anything in return; they should be free to boycott those who feed them – and to kill them with impunity.

Granted, you don’t need polls to know Palestinians are uninterested in peace; they’ve proven that by rejecting repeated Israeli offers because none met 100% of their demands, including the demand to eradicate the Jewish state demographically by relocating millions of Palestinians to it. Had their priority truly been a state of their own, they would have settled for less than 100% to obtain one, just as the Jews did.

Nevertheless, the “international community” remains obsessed with settlement construction as the major obstacle to peace. This would be absurd even if Palestinians actually wanted peace, since as Elliott Abrams and Uri Sadot recently demonstrated, the overwhelming majority of settlement construction occurs in areas that every deal ever proposed has allotted to Israel, and consequently doesn’t undermine prospects for an agreement at all. But it’s even more absurd given that no obstacle to peace could possibly outweigh one party’s unaltered desire to annihilate the other.

And that’s why the poll’s findings about prisoners are so important. Palestinian Authority President Mahmoud Abbas excels at making moderate statements, as he did recently by condemning the kidnapping of three Israeli teens. But as long as Abbas and his countrymen demand that the perpetrators of such crimes walk free, such statements are mere lip service. For nobody who demands the right to murder Jews with impunity can be a genuine peace partner for the Jewish state.
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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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