Last week supporters of Palestinian human rights were buoyed by the announcement from the prosecutor of the International Criminal Court that she had decided to open a formal investigation of Israel for war crimes in the occupied territories, including the ongoing settlement project in the West Bank and East Jerusalem and the onslaught in 2014 called Operation Protective Edge. She is also investigating Hamas and Palestinian militant groups for war crimes.
“There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” prosecutor Fatou Bensouda said.
“You can’t gainsay the fact that at least at a symbolic level, something significant happened,” says Norman Finkelstein, who is an expert on the ICC. “A Rubicon has been crossed. Or to put it in other terms, an American red line has been crossed, because the U.S. has said, Open an investigation and we destroy you.”
Because of the international politics of the issue, Finkelstein says that hopes for a just formal outcome are likely to be dashed by the court. He believes that the case will be dismissed on a technical ground, under tremendous pressure from Israel and the U.S.
The opportunity the case presents is in shaping public opinion, Finkelstein said in an interview: for advocates for Palestinian rights to make their case as the Hague mulls the legal one. “Pressure can come from both sides.”
Fatou Bensouda is going to be subjected to the same sort of vilification that Israel and its friends brought to bear ten years ago on Judge Richard Goldstone, who after accusing Israel of targeting civilians in Gaza in a UN Human Rights Council report was smeared with a broad brush, notably Alan Dershowitz saying that he was a traitor to the Jewish people. Ostracized at times even within his South African Jewish community, Goldstone later recanted some of the charges.
Finkelstein is soon to publish a book about Bensouda’s failure to prosecute an earlier referral on Palestine to the ICC, involving Israel’s killing of 10 passengers on board the aid boat the Mavi Marmara, which was under sail to Gaza from Turkey in May 2010 when Israeli commandoes boarded the vessel in international waters in the middle of the night.
That case was brought to the ICC by the Comoros Islands because the boat sailed under a Comoros flag. But after a years-long preliminary investigation, Bensouda refused to launch a formal investigation, and sided with Israeli arguments about the aggressive conduct of passengers and crew on the boat, as somehow justifying lethal force.
Bensouda experienced broad criticism over that ruling, Finkelstein says– from officials inside the ICC, from the human rights community, from an article by John Dugard, a professor of international law with great standing, and from the impending publication of Finkelstein’s own book, titled J’Accuse.
Bensouda’s latest decision of December 20 was to launch an investigation in a second case, a 2015 referral by Palestine, and Finkelstein sees it as an effort to “recuperate” her loss of reputation in the Mavi Marmara ruling.
Part of the reputational damage was critics threshing Bensouda’s record in the Gambia. “She was the attorney general under the Gambian military junta,” Finkelstein says. “Richard Goldstone was a judge under apartheid South Africa, but Dugard tells me it’s totally different. Goldstone had an exemplary record as a judge in South Africa. She had a filthy record.”
The 112-page document that Bensouda published in announcing her decision to investigate war crimes looks very good with respect to the crime of Israeli settlements, Finkelstein says. The document offers “10,000 pieces” of evidence on the illegality of the settlements in the West Bank and East Jerusalem that go to show what everyone knows, Israel has taken over lands that were supposed to provide the territory for a Palestinian state under international law and colonized those lands with more than 600,000 Jewish settlers.
Bensouda’s argument that Israel committed war crimes in Gaza during the Operation Protective Edge onslaught five years ago that killed more than 2200 Palestinians, including 500 children, is less specific. “If you read her statement, you would think that Hamas committed as many, if not more war crimes than Israel during Protective Edge,” Finkelstein says.
Some on the left have exulted in the ICC ruling and said that Prime Minister Benjamin Netanyahu and former army chief of staff Benny Gantz (who has bragged of bombing Gaza back to the “stone age”) may be charged with war crimes for that assault. “I’m very dubious about that. The likelihood that they’re going to actually be convicted approaches zero,” Finkelstein says.
All the same, Israel is shaken by the announcement and a battle has begun. “There’s a legal battle but there’s also going to be an overt battle, the battle of public opinion. So yesterday, Benjamin Netanyahu goes to the Wailing Wall and says that the ICC is guilty of anti-Semitism,” Finkelstein says. “Now the other side can say, oh, is it anti-Semitism to say that Israeli settlements are illegal? Anti-Semitism to say that the West Bank and Gaza and East Jerusalem are occupied, Palestinian territory?”
Finkelstein’s pessimism about the ultimate outcome is based on the fact that Bensouda gave herself an out. Noting that the court’s jurisdiction over these issues is disputed by Israel, Bensouda requested an opinion on two crucial jurisdictional questions from the court – called the Pre Trial Chamber – in the next 120 days before actually beginning her investigation.
“The jurisdictional question breaks down into two parts. Does this entity called the state of Palestine qualify as a state that is competent to lodge a referral or complaint with the ICC,” Finkelstein summarizes. “Question number two, they have to decide what is the territorial jurisdiction of the court in this case, which means they have to decide what are the territorial dimensions of this thing called the state of Palestine.”
Finkelstein is very worried that Bensouda has kicked these questions over to the Pre Trial Chamber because it is headed by a Hungarian judge, Péter Kovács, who repeatedly sided with Israel on issues in the earlier Mavi Marmara case.
Bensouda herself opens the door to Kovács to dismiss Palestine’s standing to bring the case in the first place in this paragraph:
The scope of the Court’s jurisdiction in the territory of Palestine appears to be in dispute between those States most directly concerned–Israel and Palestine. A number of other States have also expressed interest and concerns on relevant issues. Notably, Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed. The West Bank and Gaza are occupied and East Jerusalem has been annexed by Israel. Gaza is not governed by the Palestinian Authority. Moreover, the question of Palestine’s Statehood under international law does not appear to have been definitively resolved.
“I would bet your bottom dollar and mine that Kovacs will never ever say Palestine’s a state. Of the other two judges [on the PTC] he only needs one more vote,” Finkelstein says.
Israeli has already posted clever challenges to Palestinian standing, says Finkelstein. “A lot of it is a crock of shit, but they quote statements from the international community and the Palestinians, that two states is an aspiration not a reality. So if it’s not a reality, how can they call on the ICC to investigate? They’re not a state!”
Israeli officials have also seized on the fact that Palestine cited the 1947 UN partition resolution as a basis for the complaint. That resolution designated Jerusalem as outside the Jewish and Arab states that were to be established: “a corpus separatum.” Israel used this citation against Palestine, Finkelstein says: “They themselves acknowledge that Jerusalem is not part of the Palestinian state.”
I pointed out to Finkelstein that if the court throws out the Palestinian case on these grounds, it will leave the occupation in place, with Palestinians as non-entities in any official framework. Israeli will settlers continue to gobble up their lands, but Palestinians have no recourse under Israeli law or in international courts.
“The ICC can rule on the settlements if the U.N. Security Council refers it to them. And that won’t happen,” Finkelstein adds. The U.S. will veto.
Finkelstein sees the real force of the case in the court of public opinion. It will continue to drive a wedge in U.S. politics by putting pressure on the Democratic Party leadership. He says:
There are two poles now in the world. As everyone knows, the center has collapsed. One pole has said, fuck the rule of law. So they don’t care about the fact that Israel now is an apartheid state or as Lincoln would say a nation that’s half free, half slave. So the Palestinians don’t have anything– and let’s move on. Just like Modi now did with the new law in India saying only Hindus can get citizenship; they don’t care about the law. And that’s Trump.
On the other hand, the other pole actually has become more beholden to the law in the face of this assault by the Alt right. The law has been now become their big weapon.
And so the Democratic Party, given its base, can’t possibly defend a state that is half slave and half free.
The Democrats don’t want to acknowledge what is de facto the case, Israel has annexed those territories. Because if they are part of Israel and the Palestinians don’t have rights of citizenship, they’re living in a slave state.
So the Democratic Party wants the veneer that the situation is still in limbo, that there is still a possible peace process that hasn’t been resolved because if they don’t have that veneer, they’re now part of the alt right that says we don’t give a shit about the Palestinians.
I told Finkelstein that a Democratic president could put pressure on Israel.
“A Democratic president would be just like Obama,” Finkelstein said, disagreeing, “and say that there shouldn’t be international interference, it has to be resolved between the Israelis and Palestinians, we can only play the role of an honest broker and so on, and so forth. Unless it’s Bernie.”
Finkelstein points out the lengths that Obama went to to neutralize international law against settlements and other Israeli crimes in occupied territories. “Remember, it was [then-Secretary of State] Hillary Clinton who took pride in the fact that she personally killed the Goldstone report. The Biden administration would do the same.”
I concluded by asking Finkelstein to say where he is hopeful.
“The battle is going to be played out behind closed doors and in the court of public opinion, and if Palestinians and their allies mount a significant enough public relations campaign, demanding it, it will put the PTC [pre trial chamber of the ICC] under the spotlight and it will put Bensouda under the spotlight.
“Otherwise, if you let the normal workings of the court unfold, the Palestinians will lose everything.”