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The ICC will likely throw out Palestine’s case for war crimes, Norman Finkelstein says

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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.

Norman Finkelstein down by the sea in Brooklyn

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.

Peter Kovacs, a judge at the International Criminal Court. From the ICC website.

“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.”

Philip Weiss

Philip Weiss is senior editor of Mondoweiss.net and founded the site in 2005-06.

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19 Responses

  1. eljay on December 31, 2019, 3:29 pm

    … 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 U.S. and Israel routinely and quite farcically present themselves as “moral beacons” even as they blatantly and unapologetically commit (war) crimes and then do everything in their power to evade responsibility and accountability for their unjust and immoral actions.

    • Misterioso on January 1, 2020, 12:56 pm

      @eljay, et al

      Indeed, “Israel” as a ‘moral’ beacon is an oxymoron:

      https://ahtribune.com/world/north-africa-south-west-asia/palestine/3774-military-torture-chambers-of-israel.html

      “Israel, Palestine, and torture, American Herald Tribune, Dec. 31/19 by Professor Anthony Hall,

      “Palestinian Detainees in Military Torture Chambers of Israel: Experiment on Human Subjects”

      “There is something quite unseemly in the sordid public spectacle of Benjamin Netanyahu trying so desperately to maintain a failing grasp of prime ministerial power in Israel. As long as he stays in public office Mr. Netanyahu can apparently hold at bay the criminal charges against him for bribery and such.

      “The crimes threatening to engulf Netanyahu call attention to a broad array of more heinous crimes that so far have yet to be formally reckoned with in the arena of international jurisprudence. The top tier of Israel’s leadership, including prominently Netanyahu himself, has so far been shielded from legal accountability for war crimes and crime against humanity. This unchecked crime spree has as its goal the violent replacement of the indigenous Palestinians with Jewish settlers whose proliferating settlements have become Greater Israel’s dominant emblem.

      “The virtual immunity from criminal prosecution protecting those responsible for a Palestinian version of the ‘Trail of Tears’ is contributing to the Israelification of ethnic cleansing in the Western Hemisphere. Wayne Madsen writes, ‘Israel’s genocide advisers and technicians’ are ‘returning to Latin America in force.’ He continues, ‘Fascist-oriented regimes in Brazil, Bolivia, Peru, Ecuador, Honduras, Paraguay, and Chile, eager to displace Indigenous peoples, have invited the Israelis back to their nations to provide advice on depopulating indigenous regions as systematically as Israel has done to Palestinians in the West Bank and East Jerusalem.’

      “After five years of study the Chief Prosecutor of the International Criminal Court, Fatou Bensouda, issued her ‘preliminary report’ responding to accusations she received from Palestinian sources in early in 2015.

      “Just days before issuing her preliminary report ICC Chief Prosecutor Bensouda had been accused by South African jurist, John Dugard, of being biased in Israel’s favour. Prof. Dugard called for an investigation of Ms. Bensouda’s capacity for objectivity in these matters and suggested she resign.

      “The technical name of the ICC is the Rome Statute of the International Criminal Court. The Rome Statute is an international treaty that gave rise to the court’s existence in 2002. The ICC has 123 member states. The government of Israel is not one of them. The Israeli government has not ratified the Rome Statute and is not a party to the multilateral treaty.

      “The Chief Prosecutor is proceeding on the basis of her assessment that the people and government of Palestine are sufficiently recognized in the international community to constitute a state, albeit a crippled one, in both Gaza and the Occupied Territories in the West Bank. The Chief Prosecutor has argued that the Jewish settlements together with the Israeli Separation Wall have prevented the people and governing authorities of Palestine to conduct themselves in ways called for by the Oslo accords of 1993 and 1995.

      “Ms. Bensouda will not formally proceed with further investigations until the question of the court’s jurisdiction on these areas of jurisprudence is determined by a tribunal of ICC jurists. The Chief Prosecutor has indicated that, if her investigation continues, she will have to consider not only possible Israeli infractions of law but also allegations that some Palestinian officials committed international crimes.

      “Benjamin Netanyahu had himself pictured in front of the Western Wall in Jerusalem accusing the ICC of ‘pure anti-Semitism.’ He announced, ‘New edicts are being cast against the Jewish people – anti-Semitic edicts by the International Criminal Court telling us that we, the Jews standing here next to this wall…in this city, in this country, have no right to live here and that by doing so, we are committing a war crime.’

      “With this initiative the ICC is moving beyond its former preoccupation with war crimes in Africa and entering what is perhaps the most fraught legal and political terrain in the world today. How will the voters of Israel vote in casting their ballots for the third time in a single year? Will Benjamin Netanyahu be pushed from office so he has to face the criminal charges aligned against him. Will Israel opt to come to terms with a long overdue juridical process that will determine much about the future of many things, including the fate of international law?”

  2. Keith on December 31, 2019, 3:51 pm

    PHIL- ““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.”

    The last sentence should read “particularly if it’s Bernie.” I like Norman but he is such an incorrigible Bernie groupie that he ignores obvious reality even as he swoons. Bernie would be the Ashkenazi Obama, silencing (what passes for) the “Left” even as he implements the fat-cat agenda including Israel Palestine policy which would be misrepresented.

    FINKELSTEIN- “There are two poles now in the world. As everyone knows, the center has collapsed. One pole has said, fuck the rule of law.”

    Center? Center of what? The two poles are both on the radical right. Trump represents honest bigotry which says f*** the law. Liberals, on the other hand, pay lip service to the law even as they pursue similar fat-cat policies. This is the “shoot and cry” crowd. The very notion that the Western “justice system” actually pursues justice rather than moderate the struggle for power is a liberal delusion, yet another escape from reality to avoid confronting the world as it actually is.

    As an aside, for a delightful rant against Liberals, I link to a Jason Hirthler article. https://dissidentvoice.org/2019/12/exterminating-angels/#more-100030

  3. Talkback on December 31, 2019, 7:51 pm

    Israel is very inventive. Especially when it comes to redefining antisemitism and terrorism.

    This is their latest invention:
    Israeli officials slam ICC decision as diplomatic terrorism
    https://www.ynetnews.com/article/rJu3A0hCB

    Just when I think that Hasbara can’t get more stupid then it allready is.

  4. Talkback on December 31, 2019, 8:01 pm

    Luis Moreno-Ocampo – former first Prosecutor of the International Criminal Court – said before 2012 that he couldn’t investigate into Israeli crimes unless Palestine will be recognized as an UN observer state:

    • Talkback on December 31, 2019, 9:05 pm

      From the iCC (Moreno-Ocampo) in 2012, before Palestine became an UN non-member state:

      “On 22 January 2009, pursuant to article 12(3) of the Rome Statute, Ali Khashan acting as Minister of Justice of the Government of Palestine lodged a declaration accepting the exercise of jurisdiction by the International Criminal Court for “acts committed on the territory of Palestine since 1 July 2002.” …

      4. The jurisdiction of the Court is not based on the principle of universal jurisdiction: it requires that the United Nations Security Council (article 13(b)) or a “State” (article 12) provide jurisdiction. Article 12 establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (article 12(3)). …

      5. The issue that arises, therefore, is who defines what is a “State” for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary-General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”. Thus, competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly. …

      6. In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1).

      7. The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”.
      http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

      Meanwhile Palestine has become an UN observer state. And it’s obvious that Israel’s argument that Palestine is not a “souvereign” state has never been legally relevant. If Israel’s argument would be valid the ICC would have not started with its preliminary examinations, like it didn’t before 2012.

      Finkelstein claims that “Israeli officials have also seized on the fact that Palestine cited the 1947 UN partition resolution as a basis for the complaint.” I don’t know where Israel (or Finkelstein) got this idea from. There is no reference to the partition plan at all. In its referral Palestine wrote:
      “The State of Palestine comprises the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.”
      https://www.icc-cpi.int/itemsDocuments/2018-05-22_ref-palestine.pdf

  5. echinococcus on December 31, 2019, 8:35 pm

    He’s absolutely right. I join the bet, unto half my little all. Also, it doesn’t look like there will be many takers. Really, who is the starry-eyed gull who expects criminal judges (meaning criminals handpicked for judges by the “Assembly of the State Parties”, read mostly US-fellating client governments) revolt against the Power?

  6. Kay24 on December 31, 2019, 10:23 pm

    He is right. We have seen this again and again, and it seems it starts with a bang and then it fizzles out into a whimper. The US and the UK will make sure it does, as usual. Justice will be denied, once again, and the occupation and land grabs will keep going on. The Palestinians will always be the victims.

  7. JWalters on January 1, 2020, 2:56 am

    Finkelstein’s excellent analysis highlights –

    (1) Israel’s control over America’s politics, which is strong enough that America will disavow its most basic principles in order to protect Israel from the consequences of its obvious crimes, and

    (2) Israel’s similar strong control over international political bodies, which is strong enough that they too will disavow their most basic principles in order to protect Israel from the consequences of its obvious crimes.

    The silly semantic shell games that Israel is playing have no real power. Neither does the relatively small number of Jewish extremists who populate Israel, carrying the guns and stealing Palestinian land. On the surface, Israel itself is a pipsqueak. But behind the scenes, in the corridors of power, where the big decisions are made, that is where we must neutralize this criminal power. “Follow the money” Deep Throat famously recommended to Woodward and Bernstein, a good guideline for any political intrigue. Nobody should be above the law.

  8. edwardm on January 1, 2020, 11:22 am

    “what are the territorial dimensions of this thing called the state of Palestine.”
    leads to the question

    “what are the territorial dimensions of this thing called the state of Israel.” ?

    am I allowed to ask that?

    • Talkback on January 1, 2020, 11:54 am

      Not yet. Zionist land grabbing is an ongoing process. Give it some time.

      Meanwhile you can study Zionist negotiation tactics:

      • Kathleen on January 9, 2020, 5:50 am

        Israeli Ernie. Palestinian Burt

        U.S. did same thing to Native Americans after Euro’s killed millions.

  9. Tzvia on January 1, 2020, 7:12 pm

    Israel, an apartheid country, is a colonialist project. One day justice will be made and the indigenous of this land, the Palestinians, will be free! I, a Jewish Israeli, have been a living witness of the terrible crimes that the Zionists commit towards the Palestinians. We People with conscious must raise our voices. We won’t be silenced!

  10. brent on January 4, 2020, 1:13 am

    Finklestein delivered his truth. No one, no president can deliver Israel to or for Palestinians. It is their job and can be accomplished using principles employed in public relations work. Words and ideas are powerful tools.

    • Mooser on January 6, 2020, 2:22 pm

      ” It is their job and can be accomplished using principles employed in public relations work.” “Brent”

      Yeah, those Palestinians need some savvy, expert public-relations people. Which people is best at that?

  11. TwoRedDogs on January 6, 2020, 10:29 pm

    If the issue is delineating the borders of the territory called Palestine, then how did the ICJ gave an opinion on their legality/illegality of settlements back in 2004?

    • Talkback on January 7, 2020, 9:02 am

      That’s simply based on Article 49(6) of the IV. Geneva Conventions* which is applicable in all territories that Israel occupied in 1967, including the “Occupied Palestinian Territory, including East Jerusalem”.

      [*] “The Occupying Power shall not dlrport or transfer parts of its ow11 civilian population
      into the territory it occupies.”

  12. Kathleen on January 8, 2020, 10:08 pm

    Great piece Phil. Clear , crisp, depressing. Have the greatest respect for Finkelstein and everything he has to say about this issue.

    “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!”

    So to this point sure seems like there is a ton of evidence that Israel has persistently used the term and idea that a two state solution is very much not just still in play but their alleged goal. We know that is not the truth but many Israeli leaders, officials have used the “two state solution” over and over again for decades. Always dangling the shriveled up carrot.

    “Unless it’s Bernie.” This is the line that captivated me. So how different would it be if Bernie pulled it off with all of us helping as hopefully most of us are.

    Please Norman go on with this thought.

  13. Kathleen on January 9, 2020, 5:51 am

    This one needs to be shared everywhere to bring more attention

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