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Yossi Beilin advises Israel on how to dodge the ICC ‘problem’

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Israel is facing a new kind of problem since the announcement of the International Criminal Court that it would fully investigate war crimes committed on Occupied Palestinian Territory (West Bank and Gaza), pending a pre-trial chamber decision concerning the “territory”.

Some, like the centrist Netanyahu-rival Benny Gantz, are rejecting the court’s validity in this case outright. Gantz called it “a political decision, not a legal one,” adding that “the Israeli army is one of the most moral militaries in the world”, and that “the Israeli army and State of Israel do not commit war crimes.”

But then there are those a bit further left in the Zionist spectrum, who seek a slightly more sophisticated, less crass approach, one that is perhaps more cunning as well. Enter Yossi Beilin. Beilin is a left-Zionist who has been Justice Minister under Ehud Barak in 1999-2001, and is known for being one of the architects of the Oslo agreements in the 1990’s, having conducted many of the back-channel negotiations that led to them. Beilin was also chair of Meretz (further left than Labor), so he has this aura of a peace-seeking liberal.

This aura is what makes his recent piece in Al-Monitor, titled “Instead of slandering it, Israel should join the ICC”, ever more disturbing.

Beilin opens with a paragraph which, coming from him, can be read as partially ironic:

It has been a while since Israel had a new evil enemy threatening its very existence. The Dec. 20 announcement by the prosecutor of the International Criminal Court (ICC) in The Hague, Fatou Bensouda, that she had found “reasonable basis” to suspect Israeli war crimes were and are being committed in the West Bank and Gaza Strip and was seeking the court’s ruling on opening an investigation has turned both the Gambian-born jurist and the court itself into our sworn enemies.

Beilin is ostensibly playing on the demonization of the ICC and Bensouda that has featured in mainstream Israeli media. Since this is coming from him, he could always defend himself by saying it’s irony. But he’s very serious about the ICC issue being a “problem”. And here’s the problem:

The ICC accepted the Palestinians as members following the UN’s 2012 recognition of “Palestine” as a non-member observer state, paving the way for the Palestinian Authority to seek prosecution of Israelis for war crimes stemming from the transfer of Israeli citizens to settlements in the occupied territories, in violation of international law. If the court authorizes Bensouda’s request for such prosecution, many Israelis could be arrested once they leave Israel and taken to the ICC in The Hague. Israel’s main argument against prosecuting its officials by the ICC is procedural, not germane, arguing that Palestine is not a state and thus not authorized to make such demands of the ICC.

But it’s a problem that can be solved “with relative ease”, Beilin posits:

Israel can solve the problem with relative ease: It only needs to go back almost 20 years and ratify the Rome Statute. Any state that ratifies the treaty is authorized to receive a seven-year deferral of action on any part of the document that it finds particularly troubling. If Israel chooses to cite the settlement issue, the ICC will not be authorized to arrest any Israeli on that count until 2028. Ratification would do justice to historic Jewish-Israeli efforts to establish the court and to try individual criminals, and on the other hand would avoid the arrest threat to decision-makers involved in the settlement enterprise. Regardless of the ICC issue, in the coming years, and especially if a different government is formed, Israel will have to make a supreme effort to reach agreement with the Palestinians. Such agreement would address the settlement issue, too. Once an agreement is reached, the issue will be removed from the international agenda, in general, and from that of the ICC.

The bulk of Beilin’s piece is a recounting of how “Jewish jurists were prominent among the advocates of a permanent tribunal” in the wake of World War II, and how Israeli “representatives pushed for years for the establishment of an international court to try criminals whose countries had defended them and provided them with immunity for their actions”. Beilin notes with regret that Israel eventually voted against the Rome Statute covenant in 1998, the covenant that created the ICC, and he is clear about why that happened:

The 1998 UN vote on the covenant establishing the court (known as the Rome Statute) was supported by 120 nations, with 21 abstentions and seven states voting against, among them the United States and Israel. The United States was opposed mostly because the statute stipulated that individuals would be tried by the court even if their own countries opposed the move. Israel’s opposition stemmed mostly from the treaty’s determination that the transfer of citizens from the territories of an occupying power to occupied territory constitutes a war crime for which those involved can be prosecuted.

In other words, Beilin is suggesting to buy some time, by ratifying the Rome Statute, rather than fighting the ICC from outside, as it were. This could buy it 8 years more, since the court would have to consider Israel’s contesting of the settlement enterprize as criminal. Beilin is clear that this is the main and least controversial issue that the court will be addressing. All Israeli settlements are a flagrant violation of international law, confirmed by numerous UNSC resolutions, recent of which is UNSC 2334 of 2018, a resolution which was also condemned by the Israeli left.

Beilin’s main issue is that this would help, “avoid the arrest threat to decision-makers involved in the settlement enterprise”, and Beilin knows that these “decision-makers” include the Zionist left.

Beilin’s supposed defense of his strategy is his suggestion that it would buy time for Israel “to make a supreme effort to reach agreement with the Palestinians”, and that since such an agreement would address the “settlement issue”, this “issue will be removed from the international agenda, in general, and from that of the ICC”. But what pushes Israel to make this “supreme effort”? And notice how the “agreement with the Palestinians” is vague. The Oslo accords, which Beilin worked so hard for, resulted in “less than a state”, as then Prime Minister Yitzhak Rabin promised the parliament, and they failed to go beyond an initial state of effective Bantustanization. Indeed all prospects of “peace” with the Palestinians, also those envisioned by the Israeli left, were at best Palestinian autonomy under Bantustans. Beilin is suggesting that the prospect of an “agreement” would be especially valid if “a new government is formed” – but what “new government”? Israel’s forever-elections have shown clearly that if a right-wing government is not able to form Israel’s only actual government option is a national-unity government of Likud and Blue White, with people like Gantz at its supposed left flank. When Netanyahu recently announced plans to annex the West Bank, Gantz’s party said that they stole the idea from them. Beilin is living in never-never-land.

Those who are a bit more honest, like former Vice-premier and Defense Minister Moshe Ya’alon, say it like this:

There are pressures. Peace Now from within, and other elements from without. So you have to manoeuvre … what we have to do is manoeuvre with the American administration and the European establishment, which are nourished by Israeli elements [and] which create the illusion that an agreement can be reached … I say that time works for those who make use of it. The founders of Zionism knew … and we in the government know how to make use of time.

Ya’alon, who used to be in Likud but moved left to Gantz’s Blue White, said this in 2011 in response to the question ‘Why all these games of make-believe negotiations?’

H/t John Lewis-Dickerson, Ofer Neiman

Jonathan Ofir

Israeli musician, conductor and blogger / writer based in Denmark.

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7 Responses

  1. pabelmont on January 10, 2020, 9:59 am

    My take is that Israel will not soon join the Rome Statute. Why should they when time (and the USA and EU) are on their side? But the legal dodge (to join the R.S. and gain 8 years of immunity) is cute.

  2. HarryLaw on January 10, 2020, 10:36 am

    If they claim to be not guilty of any crimes, surely they should welcome the chance to clear their names and prove it to the World. Of course they are afraid of the truth, in particular Article 49 paragraph 6 of the 1949 Fourth Geneva convention, also now incorporated in the Rome statute [ICC]. It is a grave war crime to transfer citizens of the occupier into occupied territory.
    This grave war crime has already been addressed by the highest court in the World, the International Court of Justice in the Hague [ICJ]. Then in 2004 ‘the Wall case’ all 15 Judges including the US Judge found in its opinion that ALL the settlements are illegal.

  3. Hostage on January 11, 2020, 10:51 am

    The strategy outlined in the article is not a very sound one for several reasons. The Assembly of State Parties held a Review Conference in 2015 which decided to delete Article 124 from the Rome Statute. That is the article which authorizes new member States to request a 7 year deferral of jurisdiction for the category of crimes defined in Article 8. War Crimes.

    The necessary amendment is still in the process of ratification. It will enter into force when 7/8ths of the members deposit their ratification instruments. It might only hasten the ratification process if a new member State, such as Israel, attempts to employ the deprecated provisions of Article 124.

    In any event, an Article 124 deferral is NOT applicable to the categories of crimes defined in Article 6. Genocide or Article 7. Crimes Against Humanity. So Israel would have to immediately accept the Court’s jurisdiction for those types of offenses.

    • Mooser on January 11, 2020, 1:19 pm

      Happy to see the nym “Hostage” again! Been a while since Oct. 5th 2018. About 465 days, give or take.

    • RoHa on January 12, 2020, 9:46 pm

      You’re back! We’re saved!

  4. Elizabeth Block on January 11, 2020, 1:12 pm

    I just read, and commented on, Yossi Gurwitz’s piece on the “peace organizations.” Yossi Beilin, a softish Zionist, exemplifies what he’s saying: Peace means continuing occupation, total domination, not justice.

  5. Vera Gottlieb on January 11, 2020, 2:51 pm

    No country, no person should be above the law…not even israel.

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