International Criminal Court Faces Big Test With Israel - International Injustice/Law

International Criminal Court Faces Big Test With Israel
by Amitabh Pal via fleet - The Progressive Saturday, Feb 14 2009, 12:01am
international / injustice/law / other press

I have been a big supporter of the court and have written in its favor for a decade now, ever since it was being formed. But an article a few months ago in The Nation by Professor Mahmood Mamdani of Columbia University gave me pause. Mamdani insists that the International Criminal Court can be seen as the legacy of a tradition of Western paternalism toward the rest of the world, in some sense displaying a continuity with colonialism. While Mamdani overreaches in his argument and downplays the Bush Administration’s opposition to the court (for more on that see my January 2007 piece in The Progressive), he does make some interesting points.

“The fact of mutual accommodation between the world's only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic and Congo,” Mamdani writes. “All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States doesn't oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.”

Mamdani limits his analysis to Africa, not delving into the obvious issue as to whether the International Criminal Court should have considered a case against the Bush Administration for its illegal invasion of Iraq. (In fact, Roger Cohen points out in a New York Times column that Moreno-Ocampo rejected pleas to try British forces in Iraq.)

Mamdani exposes a basic structural flaw with the International Criminal Court: The U.N. Security Council can refer cases to the court (even regarding a non-signatory) or, conversely, block any such attempts. This gives an inordinate amount of clout to the five permanent members, including the three Western powers. This explains to a large extent the hesitance of the court's chief prosecutor to take on the West or its allies.

In the case of Israel, Moreno-Ocampo faces a number of legal and procedural hurdles. Israel is not a signatory to the court. And the very legitimacy of the Palestinian Authority is in question, especially after Hamas’s takeover of Gaza. Nevertheless, Moreno-Ocampo has indicated—after initially declining the case—that he is considering whether to go ahead, possibly including a review of any war crimes that Hamas may have committed.

The Obama Administration has already signaled its approval of the International Criminal Court. U.S. Ambassador to the U.N. Susan Rice two weeks ago called the court “an important and credible instrument,” indicating that the United States is moving from confrontation toward co-optation.

Now is the time for the International Criminal Court to assert its independence. Opening a case against Israel would be a good start.

© 2009 The Progressive

Israel’s official excuses for extinguishing over 1,300 Palestinian lives—half of them civilian and one-third of them children— are oft-repeated by its apologists: Hamas’ rocket fire made the invasion unavoidable, and its tactics made civilian casualties inevitable.

Do these positions dovetail with—or decapitate—history? Are they logical? Are they moral? Or are they smokescreens, designed to disguise troublesome facts about both Israel’s strategy and its very origins?

The reality behind the rockets

It neatly—and falsely—posits Hamas as the attacker and Israel as the defender. The only problem with this pleasant fiction is that Israel has been expelling, occupying, and imprisoning Palestinians long before Hamas even came into existence.

As Israeli journalist Amira Hass wrote in January, “Gaza is not a military power that attacked its tiny, peace-loving neighbor, Israel. Gaza is a territory that Israel occupied in 1967, along with the West Bank. Its residents are part of the Palestinian people, which lost its land and its homeland in 1948.”

But how did it “lose” its homeland? After unearthing their country’s declassified archives, honest Israeli scholars have pointed to an Israeli campaign of rape, murder, and ethnic cleansing that entered full swing in 1947. Israel’s first prime minister, David Ben-Gurion, said to a colleague shortly after Israel’s expulsion of 750,000 Palestinians, “They only see one thing: we have come here and stolen their country. Why should they accept that?”

Why indeed? For one country to rain down rockets on another is an unprovoked crime. But for a people without a country to fire rockets on those who forcibly took their country—and who then corralled them into camps, isolated them from the world, and regularly slaughter them with weapons far deadlier than unguided projectiles—is a rather different matter.

Just as we would not begin a 10-minute tape of a batterer abusing his wife at the nine-minute mark where she may have struck back, we cannot skip through decades of Israeli ethnic cleansing, occupation, and bombardment and finger Hamas rocket fire as the starting point.

Quite apart from historical considerations, the invasion cannot be justified by rocket fire because scarcely any rockets were being fired before Israel’s own escalation. According to the Israeli military, in the ceasefire months of July, August, September, and October, the numbers of rockets fired from Gaza were one, eight, one, and two, respectively. Even those few rockets were likely fired by smaller militant groups not under Hamas’ control. In short, Hamas abided by the truce—a fact Israel recognized during those months. On November 5th, Israel itself broke the truce by launching a military operation that killed six Hamas gunmen.

On the moral level, too, the terror Israel unleashed on the Palestinian population is indefensible. A total of 23 Israelis were killed by Palestinian rockets from November 2001 to June 2008, according to a pro-Israel website. During the Gaza “war,” a total of three Israeli civilians were killed by rockets. If Israel’s recent rapid-fire slaughter of 600 civilians is “justified” by rockets that caused the death of a small number of Israeli civilians, then—applying Israel’s own logic—is Hamas not now more “justified” in continuing to launch those rockets than ever before?

How can the Israeli establishment claim the moral high ground if it borrows from the Hamas formula but ups its application of the deadly dosage one-hundred fold?

Israel’s apologists would respond here with their second argument: it is not Israel, but Hamas, that is responsible for Israel’s killing.

Perhaps it is quaint to insist on ideas that slip out of fashion at convenient intervals, but it should be an accepted principle that those who do the killing should be held responsible for it. Israel’s partisans insist Israel is an exception (is Israel ever not an exception?) because Hamas “hides among civilians” or “uses civilians as shields” or “fires from civilian areas,” thus absolving the attacker of culpability for civilian deaths.

The force of historical truth again intercedes. The people living in Gaza’s squalid refugee camps are not there by choice or because of Hamas: they are trapped by Israel. Ethnically cleansed when Israel stole their lands in 1948, they fled to the tiny strip, which borders the sea. Then Gaza, too, was captured by Israel in 1967, leaving the people occupied by the Israeli military and surrounded by radical Jewish settlers who took the stolen land.

When this occupation “ended” in 2005 after decades of humiliation, the jailer simply moved from inside to outside the cell to better manage the inmates. Most of the Jewish settlers relocated to more stolen Palestinian land in the West Bank and Israel imposed a full-scale siege on Gaza itself as a form of collective punishment when Gazans elected Hamas, as the alternative choice, Fatah, was hopelessly venal.

The siege destroyed the economy and was never lifted even during the ceasefire. Israel barred Palestinians entry into Israel for employment, closed the sea route, and shut off fuel and food aid at will, inducing widespread suffering in one of the most densely-populated spaces on earth. One Israeli official boasted of the devastating effect in 2006, “The idea is to put the Palestinians on a diet, but not to make them die of hunger.” Let them suffer, the Israelis said at the time, but do not let them die. That would come later.

Even the Vatican, not often inclined to pro-Muslim utterances, was recently moved to describe Gaza as a “concentration camp.”

Thus while Israel’s apologists argue that Israel should be cleared of responsibility for civilian deaths because Hamas “chose” to engage in “civilian areas”, the truth is that the Palestinians had no choice of any areas—they are trapped within the confines of the cage Israel kicked them into by dint of ethnic cleansing, occupation, and the siege.

Even on the street level, Israel has herded Palestinian civilians for easy killing. Several extended families in one part of Gaza, Zeitoun, tell the same story: soldiers forced family members to congregate in one building, fired at it, and massacred the fleeing inhabitants even as they emerged with white flags in hand. Breaking army orders, one Israeli soldier who was in Zeitoun confessed to a British newspaper that his unit had been instructed to “fire on anything that moves.” The unit was told to “shoot first and ask questions later,” he said.

Israel did not provide Hamas with an empty meadow in Switzerland on which to duel. It did not bestow Hamas with its state-of the-art American weaponry to even the odds. It did not give civilians any exit avenues before, during, or after the “fighting.” It even began its bombardment mid-day when children were out in the open switching classes. Israel, far from concerning itself with the fate of civilians, created a dense killing corridor over a period of decades and took advantage of it.

One can argue that even in the most difficult circumstances, militant groups should do their best to avoid mingling with the civilian population during active fighting. If the majority of Palestinian civilian casualties had occurred because Hamas was grabbing civilians left and right to use as shields, there should be abundant evidence.

But where is this evidence? For all its sophisticated spying equipment, satellites, reconnaissance drones, and cameras, the Israeli government has never produced any compelling proof of such a pattern. In fact, Israel officially banned reporters from even entering Gaza during its operation. Why hide the horrific practices of Hamas from the world’s eyes?

The answer, of course, is that Israel was hiding its own horrors instead. In the few cases where this was not possible—where international institutions, such as the UN, independent relief agencies, and Reuters reporters, were involved—a pattern of a different kind emerged: Israel blew up civilians and civilian supplies, agency officials decried the attack, and Israel accused Hamas of having fired from nearby. Each time, agency representatives emphatically stated that Hamas was not operating in the area and demanded proof of Israel’s claims. None was ever forthcoming.

Only in one case—the killing of 40 civilians taking shelter at a UN building—did Israel confidently claim that it had proof of Hamas fighters firing rockets nearby. But the Israeli military soon changed its story and was forced to invent a new excuse.

As if that weren’t enough, it turns out that Israel itself repeatedly used Palestinian civilians as human shields.

Even in these specific cases where Israel should have exercised restraint for sheer public-relations purposes, it displayed absolutely none. Such is the arrogance afforded overwhelming power. We can only imagine under what cruel circumstances most Palestinians, far removed from international institutions or Western journalists, were ground to dust.

This combination of history and ground reality demolishes the credibility of Israel’s excuse. For a bully to blame the victim is one thing—commonplace, even, among colonizers. But for Israel to expel its victims from their homes, force them into inhuman camps, and then fault them for dying en masse when Israel decided to kill them in a cramped cage of its own design—this is a truly novel achievement in the sphere of cruelty.

Israel is therefore no less responsible for killing civilians than slaughterhouse machinery is responsible for processing cattle.

The mountain of excuses offered by Israel strikes the honest observer as too tortuous to trek and too steep to scale. Puzzling and poring over its rationalizations is an endeavor that yields diminishing returns.

It is time to consider an obvious alternative to the official line: Israel did not “accidentally” kill hundreds of Palestinian civilians while “targeting” Hamas for launching aimless rockets. Rather, Israel purposely targeted all Palestinians because it wanted to teach them a severe lesson for not being defeated after 60 years of ongoing brutalization. The pile of civilian corpses produced by the invasion was not accidental—it was integral—to the administration of this lesson.

Advocating and applauding this approach last month was Thomas Friedman, who occasionally comments on Middle East affairs to puff and pout on Israel’s behalf from his privileged perch.

Responding to the growing perception that Israel’s stated aim of destroying Hamas outright was not feasible, Friedman defended Israel’s Gaza strategy in a January 14th New York Times column by approvingly pointing to the example of Lebanon.

In Friedman’s view, the 2006 Lebanon campaign, during which Israel killed about 1,000 Lebanese civilians and 250 Hezbollah fighters, convinced Hezbollah that trading blows with Israel was a bad idea.

To dismantle Friedman’s fantasies about Lebanon—what he smugly calls “the education of Hezbollah”—would require another article. What is important for our purposes is to see how this “education” was carried out.

Hezbollah, Friedman asserts, “challenged Israel to inflict massive civilian casualties in order to hit Hezbollah fighters.” These civilians, he continues, were “intertwined” with Hezbollah, and were also, by the way, “the families and employers of the militants.”

Translation: the guilty mingled with the innocent and the innocent were practically guilty.

Therefore, concludes Friedman, “the only long-term source of deterrence was to exact enough pain on the civilians…” Israel was forced to inflict “substantial property damage and collateral casualties on Lebanon at large” in order to faze Hezbollah.

Translation: the only thing Israel could do—“it was not pretty, but it was logical”, Friedman avers—was to strike at civilian populations and buildings in order to teach those Arabs a lesson (“educate”) about the consequences of raising their heads.

This refreshing way of thinking neatly solves any moral problems Israel’s actions might pose.

The innocent, as we have seen, were not really innocent: they were somehow related to the militants or related to someone who might have employed militants at the local bakery. Therefore, it was permissible to kill women and children as part of a careful calculation to inflict “enough pain” and make militants think twice about future resistance.

Yes, the “education” of the Arabs is not “pretty”—but who said tuition was free?

That Israel intentionally terrorizes and kills civilians should not surprise honest observers. Giora Eiland, the former head of Israel’s National Security Council, bluntly stated what Friedman, with his penchant for unctuous prose, could not bring himself to openly say about the 2006 war:

“The only good thing that happened in the last war was the relative damage caused to Lebanon’s population…The destruction of thousands of homes of ‘innocents’ preserved some of Israel’s deterrent power. The only way to prevent another war is to make it clear that should one break out, Lebanon may be razed to the ground.”

Can any honest person describe Eiland’s logic of mass terror as “self-defense?”

That this logic was also applied in Gaza was confirmed by the news side of the New York Times. In an elliptical January 18th analysis, Times’ correspondent Ethan Bronner, a pro-Israel journalist, writes about Hamas’ tactical caution during the fighting:

“The caution is at least in part because Hamas wants to keep ruling in Gaza, not return to its previous role as a pure resistance movement. Therefore, Israeli officials say, an offensive that caused average people to suffer put pressure on Hamas in real and specific ways.”

This can easily be rephrased as, “Israeli officials launched an offensive that caused average people to suffer in order to put pressure on Hamas in real and specific ways.” Friedman’s prayers were answered—and Eiland’s ideology, implemented.

The Times also quotes an anonymous top Israeli military official as saying, “Hamas is the dominant organization in Gaza. They are the regime and feel very connected to the people. They do not want to lose that connection to the people.”

How does one make Hamas lose “that connection to the people” in an offensive that “caused average people to suffer?” The question answers itself: kill the people.

Bronner writes that the logic behind the punishing offensive is popularly referred to within Israel as the Hebrew equivalent of “the boss has lost it”—a kind of “calculated rage” that “evokes the image of a madman who cannot be controlled.”

A madman is by definition someone who has gone insane. Israel is a state founded on ethnic cleansing—a massive attack on civilians. Instead of confronting its original sin, it has simply repeated the same crime in various ways, each time believing that it will crush the Palestinians once and for all. Repeating the same action over and over again while expecting a different result is the very definition of insanity.

The reality of a “madman who cannot be controlled” is a traumatic one. The madman declares civilians and combatants alike guilty and subjects them all to “education” through indiscriminate killing. Though the madman arrogates the right to determine the guilt of others for acts that are both in response to and dwarfed by his own far greater atrocities, the madman himself goes unquestioned. Like a convicted batterer presiding over the trial and sentencing of his victims, the Israeli “madman” judges and punishes the very people it has brutalized and dispossessed.

Unfortunately, the prevailing attitude of allowing Israel to rain down its “calculated rage” on Palestinians is applauded not only by the Israeli military and Times newspaper columnists, but also by many American liberals, whose moral senses are conveniently swallowed up by the same serpent that slips away with their spines whenever the subject of the Israeli settler-state presents itself.

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