Analysis from Israel

The UN chose a poor moment to unveil its latest campaign; the American media have little attention for anything outside the midterm elections this week. And that’s a pity, because this particular campaign deserves massive attention. The goal is to eliminate statelessness, a problem that affects some 10 million people worldwide, according to the UN high commissioner for refugees. But here’s the really noteworthy point: Not one of those 10 million people in UNHCR’s tally is Palestinian.

This point deserves emphasis, because even ardent Israel supporters often buy the false claim that Palestinians are the only people worldwide who lack citizenship in any country, making the Palestinian problem unique. But in truth, as UNHCR’s figure shows, even if every Palestinian in the world were stateless (which they aren’t), they would still constitute a minority of the world’s stateless population.

Nor are Palestinians overall the most miserable of the world’s stateless peoples, by a long shot. Granted, there are exceptions: Palestinians in war-torn Syria, for instance, definitely rank high on the misery scale (as do other Syrians). But many of the world’s stateless people would be thrilled to enjoy the conditions of stateless Palestinians in, say, the West Bank.

For real misery, consider the Rohingya, a Muslim community living mainly in Buddhist-majority Burma that accounts for about 1 million of UNHCR’s 10 million stateless people. The UN dubs them “one of the world’s most persecuted peoples.” For starters, most live in real refugee camps–not permanent towns like those in the West Bank, with real houses, schools, medical clinics, electricity, running water, and all the other amenities of civilized life.

Moreover, since Burma expelled Doctors Without Borders in February, many Rohingya have had no access to medical care at all, and deaths due to the lack of such care occur almost daily, as the Washington Post reported in May. Even when local Buddhist doctors are available, many Rohingya won’t use them; after the violence they have suffered from Buddhist mobs, the distrust runs too deep.

By contrast, Palestinians in the West Bank and Gaza have access not only to their own fairly well-developed medical systems–including a network of hospitals built, it should be noted, entirely by the “Israeli occupiers”–but also to Israel’s world-class hospitals. And needless to say, Palestinians have no fear of using Jewish doctors; even senior Hamas officials routinely send their relatives to Israel for treatment. Just last month, for instance, Ismail Haniyeh’s daughter was hospitalized in Israel, making this the third time over the last year that Israel has treated a close relative of Hamas’s leader in Gaza.

Then, of course, there are the anti-Rohingya pogroms. As Kenan Malik wrote in the New York Times in May, “Villages, schools and mosques have been attacked and burned by Buddhist mobs, often aided by security forces. Hundreds of Rohingya have been killed, and as many as 140,000 people—more than one in 10 of the Rohingya population—have been made homeless.” This doesn’t get nearly as much press as settler attacks on Palestinians, yet the latter are mainly petty vandalism–despicable and unacceptable, but not even in the same league. (And lest anyone mention Gaza, wars aren’t comparable to pogroms, either. Last I checked, the Rohingya weren’t lobbing thousands of rockets at Burma’s Buddhist citizens.)

In short, the Rohingya are yet another case in which the world’s obsession with the Palestinians has diverted attention from a much greater human-rights abuse.

Nevertheless, there is a bit of poetic justice in this story: In a rare lapse from the UN’s usual two-faced behavior, UNHCR said it couldn’t include the Palestinians in its list of stateless people because the UN General Assembly has recognized Palestine as a state. Of course, since no such state actually exists, many Palestinians really are stateless. But having demanded that the world recognize their nonexistent state, the Palestinians are discovering that even at the UN, you can’t simultaneously be a recognized state and a stateless people.

Originally published in Commentary on November 5, 2014

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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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