Terrible images of hundreds of dead, maimed, and wounded children and so many innocent civilians in Gaza wrench our hearts with despair. Deaths of several Israels from thousands of rockets fired from Gaza, apparently by Hamas fighters, are just as terrible, even though fewer in number. Supporters of both Palestine and Israel have described these attacks on each other as war crimes, crimes against humanity, and many have brought up issues of international rule-of-law, including possible violations of the Geneva Conventions by both leaders of Hamas and Israel.
Hamas is a distinct organization from the Palestinian Authority lead by President Mahmoud Abbas who has recognized Israel and remains committed to non-violent change. Abbas is the one who is now making the critical decision of whether or not to sign the Rome Statues which would make Palestine a member of the International Criminal Court in the Hague, Netherlands, and which would be the first step in starting the formal process and investigations of war crimes in the ICC. Gaza is a sub-region of Palestine separated by barriers and until recently rules separately by Hamas. Abbas and the PA are centered in the West Bank.
I am neither an expert on international law, nor even a lawyer, so I present this article by Richard Falk who is "an international law and international relations scholar who taught at Princeton University for forty years, and is also "the U.N. Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967," to you so you can help us analyze and discuss it.
Richard Falk's article published in Foreign Policy Journal, and entitled Palestinian Recourse to the ICC: The Time Has Come, lays out a number of obstacles to Abbas signing the Rome Statue, which would also make leaders of Hamas vulnerable to investigations of possible crimes against Israel which has not signed this statue and is not a member of the International Criminal Court.
Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.
One the significant roadblocks has been that both the United States and Israel have threatened major retaliations against the PA if Abbas should pursue this course of action. The United States Congress has made it clear that it will cut off all funds to Palestine, and Israel has threatened to annex the entire West Bank and all of what is left of East Jerusalem.
A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets. There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.
Falk informs us that on May 8, 2014, 17 respected human rights NGOs, (Non-Governmental Organizations), including Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists sent a letter to Palestinian President Mahmoud Abbas urging Palestine to become a member of the ICC.
If Abbas decides to proceed what charges are likely to be considered?
There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.
My impression is that Israel will not cooperate with any such investigations, and would not present the Prime Minister Netanyahu and others charged to the court even if warrants were sworn out for Prime Minister Netanyahu, his cabinet Ministers and the entire chain of command involved in any particular atrocities. With existing warrants sworn out against them the charged would dare not venture out of Israel to any nation who was a member of the ICC or they could be arrested, however, without their presence in the court hearings can not proceed against them.
Abbas may be more willing to cooperate and do the "right thing" by turning over leaders of his opposition party over to the court for prosecution. (No humor intended here, it just comes out that way.)
The experts I've been reading say the likelihood of serious attempts to bring such charges, investigations and prosecutions increase with each passing day and each additional atrocity. Also, if such charges are brought, potential violations going all the way back the previous two incursions by Israel into Gaza can be considered, as well as all rocket attacks against Israel by Hamas leaders and anyone who can be proven to have ordered them. Nations are not charged with war crimes in the ICC, only individuals involved in ordering, allowing, or committing war crimes.
So all eyes now turn to President Mahmoud Abbas who is weighing this decision. Falk reports demonstrators in the streets of the West Bank were demanding this over the last few days.
I hope this summary has provided useful information for you, enabling all of us to better understand and discuss these possibilities in a more serious way better informed of the complicating issues, and with specific data we can cite. Several others I may just append to updates tomorrow, if this still around by then and there is sufficient interest. Our moving truck is coming on Monday, so I do not have much time during this next week when G, our three cats and I will be driving from Boston Mass to our new home in Cape Coral, Florida.
Cheers, and please treat each other with respect. Remember surfacing, challenging and changing our assumptions is critical to group learning, so attacking ideas is fine. Attacking people, especially our fellow Democratic allies is not fine and becomes painful, and counter-productive.
I know it may seem odd, but I would like to extend an invitation to everyone, of all opinions to share their ideas here. So many "moderates" who have seldom participated in I/P post have risen up with such surprising ferocity that I'm concerned that our extremists on both sides have been pummeled into silence.
If we are going to reach a real solution, and I still hope for a peaceful two-state solution for both Israel and Palestine despite many declaring such hopes are now dead and too late, we are going to need to find away to integrate now opposing ideas and bring together all parties, even those of what now seem to be mutually exclusive and hostile viewpoints.
May I ask that we try an experiment and think of ourselves as engineers who all want a successful solution so we must bang on ideas, and models to find weaknesses, but that we not bang on each other, unless done in a friendly way. (Humor alert.) If anyone says anything unkind I hope folks just say, "I hope you're smiling when you say that stranger." Seriously, this issue is too important to let ourselves be side-tracked by internecine personal bickering.
Using myself as a model, I invite anyone to challenge any of my assertions or assumptions, and as long as you do it in a friendly way, I'll be glad to lay out my thinking to any test of logic, data, or even casual points of view and if I can improve and upgrade my understanding I will do so with enthusiasm. My goal is to see a fresh set of idea and new approaches to peace emerge so we can move forward. Also, these idea about the international rule-of-law sound promising, so maybe we should try some of them out for real and see if how they work. Such a move would certainly be educational and perhaps establish a precedent that the law of the jungle, and our current "might-makes-right" approach can be improved on by stronger commitments, or experiments with international rule-of-law.
Also, if it would help "loosen things up" I would have no objection to having the ICC prosecute former Presidents George Bush, and V.P. Dick Cheney to show the U.S. is not taking any "holier than thou" position. This is a sacrifice we should be willing to make, not matter how embarrassing or painful. Just to show how sincere I am about this I'm willing to agree to prosecute Donald Rumsfeld, Condallesa Rice, and as manner as the rest the Bush cabinet as necessary to demonstrate sincerity and goodwill. Let it not be said that the HoundDog is not willing to make sacrifices for the good of world peace.
I've been an underdog for so long I've had to place my stock and trade not in having all the answers, or being right all the time or even more than average, but being able to learn faster than any competitors, or evolving situation.
It the only way I've survived posting on such a wide variety of complicated topics on where often nearly everyone in commenting in my posts knows more than I do about it. If I may share an essential survival strategy which seems to help a great deal is don't attach your ego, identity, self-esteem, or approval by others rigidly to the very ideas we know will be banged on and even assaulted from every direction.
Instead try "floating like a butterfly" as Ali used to say basing your own self-esteem, identity on your skills as thinkers, debaters, agents of change, and even advocates of your causes who are smart, clever, and "slippery enough" they you can move quickly to the next idea while leaving as little personal blood on the floor as possible.
Remember this is just a blog and most of us are here to get value, friendship, participation, community, a place to contribute, and advancement of our shared Democratic Party goals. For me personally, also progressive goals to help make a better planet for all people. and spread as much compassion, intelligence, and values of justice, human rights, fairness, egalitarianism, democracy, self-determination, the rule-of-law, and other progressive values as I and we can.
Now, as too often happens, I spent so much time doing this that is nearly 2:00 am and nearly everyone will be asleep. Well, it was good for me.
Cheers.
HD
Sat Jul 26, 2014 at 10:49 PM PT: I wanted to add another possibility. I do not know for sure, but I do not believe the sentences for war crimes are set in stone.
Is it possible that to get the precedent for international rule-of-law started we float the idea that this particular round of hearing could offer the alternative of a Truth and Reconciliation Committee approach used by Reverend Bishop Tutu an the South Africans after they repealed Apartheid in South Africa.
To me strengthening the framework of international law, and having the world community collective saying "never again" will we allow atrocities like this to be committed against civilian populations for over four decades while the world does nothing is more important than seeing these particular perpetrators go prison for these crimes. Ending the bloodshed and establishing a peaceful two state solution is far more important.