Analysis from Israel

With the Palestinian Authority having formally launched its bid for UN recognition as a state yesterday, perhaps other countries ought to start thinking about what kind of state would come into being if they vote “yes.” Here’s a hint: It will be neither democratic nor peaceful.

With regard to democracy, consider just a few of the events of the last three months: The PA once again proved itself incapable of holding even local elections, canceling a scheduled vote for the fourth time in two years; on the national level, PA President Mahmoud Abbas is now in the 81st month of a 48-month term. It banned journalists from reporting the human rights abuses documented by an official PA body, the Independent Commission for Human Rights, which found that both the PA and Hamas (which govern the West Bank and Gaza, respectively) were guilty of torture and arbitrary detentions. It arrested a Palestinian professor who publicly criticized his university for failure to comply with a court order. It pulled a popular satirical television show from its state-owned TV channel because the show lampooned the PA’s security forces and civil service. (Don’t satirical TV shows usually lampoon their own governments?) Its official media blacklisted Palestinian union leaders who accused the PA of refusing to clamp down on corruption. It’s not exactly a shining picture of freedom of expression, regular elections and other pillars of the democratic order, is it?

As for the PA’s peacefulness, consider a few more events of the last three months: A Palestinian cabinet minister accused Israel of being the world’s “major harvesting and trading center” for organs, and specifically of harvesting organs from “the bodies of dead Palestinian martyrs”; the PA government neither denounced nor dissociated itself from this classic blood libel. A leading member of Abbas’s “moderate” Fatah party, one of Abbas’s close associates, declared that Fatah never has and never will recognize Israel.

The state-run television channel repeatedly glorified suicide bombers who murdered Israeli civilians (here and  here, for instance). A PA community center run by a senior member of Abbas’s party taught schoolchildren that pre-1967 Israel is stolen Palestinian land, and their mission is to reclaim it someday; Abbas himself  declared pre-1967 Israel to be occupied Palestinian territory just this week.

State-run television vowed the Palestinians would bulldoze the Western Wall plaza – where thousands of Jews from all over the world pray daily – if and when they gain control of East Jerusalem. It’s not exactly a shining picture of readiness to live alongside Israel in peace and security, is it?

One wouldn’t expect the UN’s many undemocratic states to care about Palestinian democracy, or its many anti-Israel members to care about whether “Palestine” lives in peace with Israel. But numerous countries in Europe, South America, Africa and Asia are proud democracies that genuinely seek Middle East peace. Isn’t it about time for those countries to think about what kind of state “Palestine” would be before they raise their hands to vote it into existence?

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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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