Tag Archive | "Israel"

Sign at the International Criminal Court.

Critical Analysis: Gaza Conflict, Palestine, and the ICC

After a cease-fire ended the fifty day war between Gaza and Israel, Palestine wants to bring charges against Israeli individuals for war crimes and crimes against humanity. Therefore, Palestine has an important decision to make: become a state to the Rome Statute, which grants the ICC jurisdiction, or remain a non-member observer state and submit another ad hoc declaration to the ICC, which grants the ICC jurisdiction. To understand the arguments circling Palestine’s decision, it is important to know the history of the Gaza conflict.

The Palestine-Arab and Israel conflict (“Gaza conflict”) began after WWII when Jewish people wanted their own country and were given land in Palestine.  In 1967, Israel went to war and gained authority over the Gaza Strip from Egypt and the West Bank from Jordan: two territories that were heavily populated by Palestinian-Arab persons. In 2005, Israel “removed” its troops and a group called Hamas rose to power. Most countries, including the United States, consider Hamas a terrorist organization. The Hamas group refuses to recognize Israel as a country, and wants Palestinians to have their original land back and is not afraid to use violence to get it. With the rise of Hamas, Israel is a target and unsafe, therefore, Israel has been holding Gaza under a blockade, controlling Gaza’s coastline and the Gaza-Israel border. This blockade has resulted in many effects for over a million Palestinians: unemployment, hunger, and poverty.

Sign at the International Criminal Court.

International Criminal Court. Image Source: © Richard Wareham Fotographie / Alamy.

Thus, the main Palestinian demand is for the blockade to be lifted. Furthermore, Palestinians want prisoners released, reconstruction, and rights to fish off the Gaza coast. Conversely, Israel wants Hamas to recognize it and ensure its safety.

Now with a better understanding of the Gaza conflict, this brings us to the current issue: should Palestine grant the ICC jurisdiction either by accession to the Rome Statute or submitting another ad hoc declaration without accession? Because an ad hoc declaration does not obligate the prosecutor to open an investigation, accession is a better option. Accession will allow Palestine to seek judicial review if the prosecutor exercises her discretion and does not proceed with an investigation. However, under the Rome Statute, the UN Security Council can prohibit the prosecutor and the court from launching an investigation by passing a Chapter VII Resolution every twelve months. Added in 1998, this provision allows sensitive political negotiations (in this case, peace talks in the Middle East) to outweigh justice. As Joe Stork, Deputy Middle East Director at Human Rights Watch, points out this balancing test should not apply to the current conflict: “[t]he argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes.” Furthermore, “[t]he US, Israel and others who are pressuring Palestine not to seek the ICC’s jurisdiction cannot credibly argue that continued impunity for serious international crimes will help bring the conflict to an end.”

If Palestine decides to accession to the Rome Statute, it should determine whether it can secure a veto from one of the five permanent members of the UN Security Council in case a Chapter VII Resolution is submitted. Because countries like the U.S., the U.K., and France are opposed to Palestine becoming a state, it is likely that a Chapter VII Resolution would be submitted, and if a veto cannot be secured, then there is hardly a point to accession.

Open Issues:

In July 2014, the Palestine Liberation Organization (PLO) announced that at the Committee on the Elimination of Racial Discrimination’s annual meeting in August, PLO would request that Israel be designated an apartheid state because of its policies and measures against Palestine. If Israel is labeled an apartheid state, would this cause countries to shift from opposing Palestine’s enlistment of the ICC to supporting Palestine’s enlistment?

If Palestine becomes its own state, like Hamas wants, what will happen to Israelis who live in the current territory, such as the West Bank? And if the ICC is granted jurisdiction by Palestine, but Israel remains in control of Gaza, can the ICC conduct a proper investigation?

 

Cheyenne Moore is a 2L at the University of Denver, Sturm College of Law, and Survey Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: United Nations Vote on Palestinian Statehood

This calls for a celebration!

On November 29, 2012, the U.N. General Assembly voted on Palestine’s bid to elevate its status within the U.N.  The resolution was to elevate Palestine’s status from a non-member observer entity to a non-member observer state, which is the same category as Vatican City.  The vote was not a close one.  The 193-member body voted 138 to 9, with 41 abstentions, to elevate Palestine’s member status.  The nine states against the upgrade were the U.S., Israel, Canada, Micronesia, Nauru, Palau, Panama, Marshall Islands, and Czech Republic.

On November 29, 1947, the U.N. recognized Israel and Palestine as two separate states, but then the tables were turned.  At that time, Palestine rejected the partition plan, while Israel supported the plan.  Decades of fighting and tension followed.  The 2012 vote recognizes the Palestinian state as the lands in the West Bank, Gaza, and east Jerusalem that Israel captured in the 1967 Mideast war.  This territory is far less than what the Palestinians were offered in 1947.  The significance of the date, 65 years to the day since the 1947 plan was rejected, is not lost on the Palestinians.  Mossi Raz, a former Israeli lawmaker and veteran activist said, “The choice of date is not accidental.  It’s aimed at correcting a historical mistake.  Sixty-five years ago, the United Nations decided to establish a Jewish state and an Arab state . . . but it never happened.  Today we are completing a historic decision with the establishment of Palestine.”

Though the U.N. vote is not likely to change the harsh realities of the people of Palestine, the Palestinians say the vote is more than symbolic despite their lack of the traditional trappings of statehood.  Palestinians hope the status change and global recognition will provide new leverage in their dealings with Israel.  The Palestinians could also now gain access to agencies and international bodies of the U.N.  Of primary importance is the International Criminal Court, which would enable Palestine to go after Israel for alleged war crimes.

This potential access to the International Criminal Court is a concern for not only Americans but also a particular worry to American ally, Israel.  There is a fear that the Palestinians may instigate an investigation into the practices of the Israeli occupied territory; the practices are widely viewed as international law violations.  American ambassador to the U.N., Susan Rice, was dismissive of the entire vote.  She said, “And the Palestinian people will wake up tomorrow and find that little about their lives has changed, save that the prospects of a durable peace have only receded.”  Secretary of State Hillary Clinton called the vote “unfortunate and counterproductive” because it places “further obstacles in the path to peace” between Palestine and Israel.  Clinton said that the U.S. believes that only direct negotiations between the two parties will lead to the peace they both deserve, two states for two people.

The U.S. has been a staunch ally of Israel for many years.  In 2011 after UNESCO, United Nations Educational, Scientific, and Cultural Organization, accepted Palestine as a member, the U.S. Congress cut off all financing to the organization.  Some argue that the U.S. must continue to be an unwavering ally to Israel because it is the last bastion of democracy in the Middle East and they have been proven a strong military ally.  Others argue that it is not in the U.S.’s favor to continue to support Israel.  The continual favoritism of Israel in peace negotiations with other Middle Eastern countries exacerbates the threat from Islamic Fundamentalist.  The U.S. gives Israel billions of dollars in aid, primarily in military hardware.  Other reasons, such as hypocrisy regarding human rights and oil interests, are also considered in reducing support of Israel.  For now, the U.S. remains a supporter of Israel amidst the global recognition of a Palestinian state.

Sarah Emery is a second year law student and the Business Editor of the Denver Journal of International Law and Policy.

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Critical Analysis: Cease-Fire Stops Fight Over Gaza: Is This The End?

 

Schoolchildren walk in debris by a damaged school in Gaza City. (Huffington Post)

On November 22, 2012, after eight days of fighting, the Palestine militant group, Hamas, and Israel called a cease-fire. The violence resulted in over 160 Palestinians and six Israelis dead, while many more were injured. Israel’s casualties were less extensive thanks in large part to its Iron Dome defense system, which was able to intercept many of the rockets fired from Gaza. While the 1.7 million inhabitants of Gaza were severely “outgunned” by Israel, it was also the first time that Israel had experienced an attack on two of its main cities, Tel Aviv and Jerusalem.

Egyptian President Mohamed Morsy negotiated the crease-fire with a helping hand from the United States, as Secretary of State, Hillary Clinton, arrived in the wake of negotiations. While there is much discussion about the winners and losers of this fight, it seems that both sides feel they have won something.

The battle for Gaza Strip has been a bitter one, spanning decades, with stalled negotiations and violence setting the scene over the years. Little progress has been made over the decades and the same question remains: will this cease-fire finally result in a lasting change? In June of 2008, Egypt had successfully negotiated a six-month long cease-fire but during the truce, attacks had continued. Once the cease-fire officially ended in December of 2008, air strikes and ground offensives continued. In January of 2009, a week long cease-fire took place after a three-week long conflict, which resulted in 1,300 Palestinians and 13 Israelis dead. The attempted cease-fire, however, did not last as more violence and failed negotiations continued to stir the conflict.

The present cease-fire called for a “total cessation of hostile activity from Gaza,” and while the truce still stands, there is much confusion regarding its status.  Israeli Military reportedly fired shots at the feet of Palestine’s who were attempting to cross the border resulting in at least one death and several injuries. Some analysts argue the new dynamic in the Middle East will make this time different but it still remains to be seen whether any successful and lasting negotiation will result.

To complicate matters, the body of former Palestine Liberation Organization leader, Yasser Arafat was recently exhumed to test for poisoning in connection with his 2004 death. After finding high amounts of radioactive material on his belongings, the body was tested for poisoning by the element polonium. The Palestine authority of West Bank stated it believes Israel to be behind the poisoning. While this conflict is between West Bank and Israel, West Bank expressed its full solidarity with Gaza during the recent attacks and this additional event could stir up more trouble in an already troubled region.

Lina Jasinskaite is a 3L at the University of Denver School of Law and a staff editor at the Denver Journal of International Law and Policy.

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News Post: U.S., Russia try to Dissuade Israel from Preemptive Strike on Iran

In recent months, tensions between Israel and Iran have been on the rise and speculation has been growing that Israel may attack Iran’s nuclear facilities.

Israeli Prime Minister Benjamin Netanyahu (The Inquisitr)

Although Iran says its nuclear program is meant to develop energy, it has refused to negotiate guarantees that the program is peaceful, giving rise to security concerns – particularly in Israel, where leaders think that Iran’s nuclear program is a threat to the continued existence of Israel.  Recently, discussion in both the U.S. and Israel has turned to the issue of whether an Israeli strike can do enough damage to the Iranian program to be worth the risks.

Military analysts at the Pentagon say that an Israeli attack meant to setback Iran’s nuclear program would be a highly complex operation.   Michael V. Hayden, prior CIA director from 2006 to 2009, said that “airstrikes capable of seriously setting back Iran’s nuclear program were ‘beyond the capacity’ of Israel’” However, military analysts have also said that if the United States decides to get involved, it has the military power to effectuate an attack of the scale desired by Israel.

Last week, America’s top intelligence official told a senate committee that a successful bombing of Israel may set Iran’s nuclear development program back by one or two years at most. Most experts agree that Iran now possesses so much technological information that no air campaign could destroy its ability to someday produce a nuclear weapon. Both the United States and Russia have advised against a preemptive attack on Iran, but Israeli’s foreign minister has said that the state will not give in to pressure in deciding whether to attack Iran.

General Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff acknowledged in a recent television interview that Israel and the U.S. have divergent views on the best course of action on Iran. “I’m confident that (Israel’s leaders) understand our concerns that a strike at this time would be destabilizing and wouldn’t achieve their long-term objectives,” Dempsey told CNN. However, Dempsey did not go so far as to say that the U.S. has persuaded the Israelis that it was best not to attack Iran.  The White House has said that it believes the intense punitive sanctions imposed on Iran have had some impact and that there is still time for a peaceful resolution to be reached.  Even so, many in the U.S. fear that Israel will act unilaterally, and that the United States will be sucked into finishing the job.  Others believe that increased U.S. involvement in the Middle-East will cause an increase in oil prices and endanger Obama’s reelection campaign.

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The pink elephant in the room

The Pink Elephant in the Room

What makes a Palestinian intifada different from other Arab revolutions?  David Aronofsky, University of Montana General Counsel and adjunct faculty member in the Schools of Law and Education, asked this very provocative question during this year’s Sutton Colloquium. The Colloquium, which hosted a diverse group of panelists from around the country, came to a rather uncomfortable pause. After a minute or two, Lt. Colonel Rachel VanLandingham pointed to Professor Paul Williams’ tie (adorned with pink elephants) and announced, “There’s a pink elephant in this room.”

The pink elephant, of course, was Israel.

Israel and the United States share an intimate relationship. Since 1985, the United States has provided nearly $3 billion in grants annually to Israel.  Israel also enjoys widespread protection by the United States’ veto in the U.N Security Council, as well as the power America holds by threatening cuts in financial support to any satellite U.N agency that contemplates the thought of Palestinian statehood.

The pink elephant in the room

The pink elephant in the room

Much of this intimacy is codified in federal law. Following Palestine’s recent admission into the United Nations Educational, Scientific and Cultural Organization (UNESCO), for example, the Obama administration immediately halted payment of more than one-fifth of the agency’s total funding (a whopping $60 million).  Why? Because according to legislation passed during the 103rd meeting of Congress in 1994, the United States is prohibited from funding any U.N. agency that recognizes the Palestine Liberation Organization (PLO) as being of the same standing as member states.  The administration enforced the law in this instance because Mahmoud Abbas, current chairman of the PLO, submitted the original request for UNESCO’s recognition of Palestine.

Why does federal law single out the PLO specifically from international recognition? The alienation may stem from the fact that the PLO used to be considered a terrorist organization by the U.S. State Department until the Oslo Accords in 1994.  Congress very well may have decided to de-list the PLO as a terrorist organization but still wanted to ensure that it would never gain international recognition in the form of the Palestinian statehood. Interestingly enough, Benjamin Netanyahu’s Likud party also has terrorist roots. Most recognizable of these roots is the Irgun, a paramilitary organization that was responsible for the infamous King David hotel bombing during the years of the British-Palestinian mandate.

President Obama has not been so keen to respect other federal and constitutional laws, however. This includes Western involvement in Libya. Arguably, American intervention in the recent NATO incursion in Libya was all but prohibited by the War Powers Resolution and constitutional provisions restricting the executive power of the president. Libyans are different from Palestinians in that they do not have their own Israel to deal with. But does President Obama have the authority to cherry pick which federal laws to enforce?

Assuming, arguendo, that American intervention in Libya was a mere military excursion supported by Resolution 1973, what, then, becomes of the U.S.-vetoed Security Council resolutions forcing Israel to comply with international law?  President Obama, to an extent, clarified this stance in his March address to the nation on U.S. intervention in Libya. He clarified that America’s responsibility to protect (“R2P”) is contingent upon her national interest.  He subsequently discussed the importance of democracy in the Middle East.

It appears that President Obama was asserting that democracy abroad is of national interest to the U.S., both in terms of ideology and security. This assertion works, for now, to tie the loose ends with its allegiance to Israel. After all, many peg the allegiance to Israel with the notion that Israel is the only democracy in the Middle East.

Or is it?

Following the successful revolutions in Tunisia, Egypt, and Libya, it appears that Israel is not the sole democratic kid on the block anymore.

Moreover, Israel seems to be heading in the opposite direction: with a rising Arab-Israeli population, and what is becoming an unsustainable presence in the West Bank and Gaza, Israel is fast-approaching the point where it will have to choose between being a legitimate democracy or a Jewish state.

Does President Obama’s pro-democracy stance also mean that Tunisians, Egyptians, and Libyans will also enjoy similar packages of foreign aid and Security Council protection? And if they do, what makes Tunisians, Egyptians, and Libyans so vastly different in their opposition to violence directed at their own people and their support of universal rights, than the Palestinians against the Israelis?

The International Court of Justice has made itself clear on Israel’s obligations to international law, a stance similarly taken in Resolution 1973. Perhaps the most famous of the Court’s proclamations is in its 2004 Advisory Opinion on the legality of Israel’s West Bank wall, where the Court stated: “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination  and its obligations under  international humanitarian  law and international human rights.”  Not surprisingly, Ariel Sharon reacted furiously and refused to comply.

Something is definitely amiss in this responsibility to protect doctrine that President Obama proposed. Nevertheless, it is more important now than ever that the United States take care of the pink elephant before it turns white.

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Sources: Fox News, LA Times, Washington Post

News Post: Israel Continues Settlement Building

Sources: Fox News, LA Times, Washington Post

Sources: Fox News, LA Times, Washington Post

Since 1967, Jerusalem has been part of the disputed territory between Israel and Palestine.  Israel captured the city and annexed the area to solidify its control of the holy city. Despite Israel’s annexation, Jerusalem has not been internationally recognized as Israeli territory or as the claimed future capital of Palestine. On September 27, Israel approved plans to build 1,100 housing developments in Gilo, a Jewish enclave in east Jerusalem.  The approval came the week after Palestine sought a bid for membership in the United Nations. The construction plans met a waive of disapproval, not only from Palestine, but also from the Mideast “quartet” – the United States, United Nations, European Union, and Russia.

Following Palestine’s bid for UN membership last week, the quartet called for Israel and Palestine to resume peace talks for the first time in over three years. The quartet set a negotiation date between the two belligerent states for the end of 2012.  The Obama Administration has continually disapproved of Palestine’s bid for UN membership, and Secretary of State Hillary Rodham Clinton recently released a statement contending that Israel’s approval of such housing units in East Jerusalem is “counterproductive to our efforts to resume direct negotiations between the parties.” The Obama Administration was “deeply disappointed” by Israel’s announcement of the development plans.

The United Nations and European Union have also criticized the development plans. Richard Miron, the spokesman for UN special coordinator for the Middle East peace process, stated that the proposed development “sends the wrong signal at this sensitive time.” EU’s foreign policy chief, Catherine Ashton, also issued a statement that Israel’s decision “should be reversed.” The Mideast quartet has called for peace settlements between the two states, however Palestine has demanded that all of Israel’s construction immediately halt in order for any peace talks to resume between the two countries. Saeb Erekat, the chief Palestinian negotiator, calls Israel’s development project “1,100 no’s to the resumption of peace talks.”

Israel refuses another construction freeze, which it did last year after Palestine’s pleas. Israeli Prime Minister Benjamin Netanyahu downplayed the decision and argued that “[w]e build in Jerusalem. Period, the same way Israeli governments have been doing for years, since the end of the 1967 war. We build in Jewish neighborhoods. The Arabs build in Arab neighborhoods. That is the way the life of this city goes on and develops for its Jewish and non-Jewish residents alike.” Israel has also defended the construction from a logistical point of view, asserting that Jerusalem’s “housing crunch” has made the new construction a necessity. The expansion will include government buildings, a school and an industrial park.

Israel’s current construction plans disregard to the “Roadmap” endorsed by the UN Security Council in resolution 1515 in 2003. The Roadmap “constitutes a negotiating framework for the resolution of the Israeli-Palestinian conflict.” Many argue that Israel’s planned housing developments in east Jerusalem would undermine peace talks as outlined in the agreed upon Roadmap and therefore would violate international law via Israel’s treaty with Palestine. UN representative Richard Miron stated that “[s]ettlement activity is contrary to the Roadmap and to international law and undermines the prospect of resuming negotiations and reaching a two-state solution to the conflict.” While Israel may have valid reasons for its new housing units in east Jerusalem, its proposed construction has not met the approval of many international authorities and its plans will be faced with criticism going forward. Israel appears to be steadfast in its construction plans and will continue to build despite resistance from the international community.

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Mediterranean Sea in Israel

Israeli and Palestinian Women Commit Civil Disobedience

Mediterranean Sea in Israel

Mediterranean Sea in Israel

The New York Times recently published an article about a cohort of seemingly unlikely co-conspirators committing civil disobedience in Israel and the Palestinian Territories. A group of Israeli women smuggled a group of Palestinian women and girls from the southern part of the West Bank, through the Israeli barriers, across Israel to Jaffa, an urban area just outside of Tel Aviv. The purpose? Nothing grander than a swim in the Mediterranean Sea, as women, neighbors, and even friends. The action was inspired by Ilana Hammerman, who facilitated the first contraband seaside trip about a year ago. Ms. Hammerman was learning Arabic in the West Bank and there befriended three girls who expressed their desire to get out of the West Bank, if even for one day. Ms. Hammerman recounted her experience in the Israeli newspaper Haaretz, describing their adventure together through the crossing points and to Tel Aviv’s beaches and amusements. Palestinian residents of the West Bank, male and female, although maybe a little more than an hour’s drive away from the Mediterranean coast, are barred in large (if not all) part from moving freely into Israel and back to their homes. The girls with Ms. Hammerman had never before seen the sea.

Despite the criminal investigation of Ms. Hammerman that followed the publication of the Haaretz article, her cross-boundary excursion prompted the formation of a group that calls itself We Will Not Obey.  The women of We Will Not Obey protest the disparity in the freedom of movement between Israelis and Palestinians.  The New York Times explains that Israelis may move freely between the Jordan River and the Mediterranean; movement for Palestinians is significantly more restricted.  The women thus decided to repeat the defiance of Ms. Hammerman and seek other women who are willing to risk criminal punishment for the sake of showing their confined sisters the wild freedom of the Mediterranean.   And not only does the organization facilitate beach trips; the Israeli women bring toys into the West Bank, share meals with their Palestinian counterparts, and wander Tel Aviv’s shopping areas together during these escapes.  The women have achieved seven in total.

This story is extraordinary for at least two reasons. First, civil disobedience is so often thought of as something monumental, like the incredible movements following Gandhi or Mandela. The contrary actions of these women are beautiful in their simplicity. No, seaside trips for smuggled Palestinian women and girls may not feel hugely significant in a land dominated by heavy-handed security and bitterly prolonged divisiveness, but the bravery of the women, both sides risking criminal punishment, is inspiring and sends a message that yes, there are people who truly believe the Israelis and Palestinians can be neighbors, even friends, and act accordingly. Second, that women are committing civil disobedience in this area of the world is profound. The West Bank is dominated by male decision-makers (at least outside of the home, and arguably within the home as well), and although Israel clearly includes a mix of liberal and conservative, traditional and reformist citizens, the reigning rightist government reflects a significantly patriarchal approach to governing and offers no mystery about its stance toward liberties for the Palestinian people. 

In the Forward to the 2011 report on the Progress of the World’s Women issued by UN Women, Secretary-General Ban Ki-moon identified how essential it is to recognize women as agents of change.  The conviction of the Israeli and Palestinian women participating in these acts of civil disobedience is clear, and the joy brought by their new connections is palpable, evidenced by the photo of the women dancing together on a Tel Aviv rooftop at the end of the day.  Hopefully the men are paying attention and are inspired to also reach out peacefully to their neighbors, across the wall and to the sea.

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