Tag Archives | Israel

Turkey’s Settlements, the ICC, and European Vacation-makers

In a press conference recently, Mahmoud Abbas threatened to use Palestine’s G.A.-recognized “state” status to challenge Israel’s settlements in the International Criminal Court. He picked a most unlikely venue for the presser – Ankara, in a joint conference with the the Turkish president. The absurdity of this is that Turkey continues to occupy northern Cyprus, and is responsible for a massive settlement program there.

I’ve written before about “other countries’ settlements,” but one might think that an increasing discussion of Israel’s civilian communities in prosecutorial terms would increase the discusion of other (often more blatant) violations of the same international norm. Not quite.

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

But it turns out that Europeans have for the past decade taken a different kind of interest in the Turkish occupation, as Dore Gold reports. Priced out of the French Riviera and Amalfi [...]

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The ICC and the Territory of Palestine

The General Assembly’s recognition of Palestine as a state (which I’ve discussed previously) is widely regard as having the central upshot of facilitating a case against Israeli officials in the International Criminal Court. Indeed, Prime Minister Abbas has already threatened such action in regard to Israeli settlements – which are said to constitute an unlawful “deportation or transfer” of Israeli civilians into occupied territory.

Yet the GA’s recognition of Palestine’s statehood does not establish that the Israeli civilian population centers are “on its territory,” a basic requirement for ICC jurisdiction, as I explain today in a post an the European Journal of International Law’s blog. Here is part of it:

The mere fact of Israeli occupation does not make the territory part of Palestinian sovereign borders… the dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state. Yet even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of the Palestinian state.

To put it differently, even if violating the Geneva-based norm of transfer need not take place in the territory of a state, it still must be “on the territory” of a state for the ICC to have jurisdiction, as the ICC exercises delegated territorial jurisdiction. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are inherent.

I am working on a longer article on the jurisdictional issues that would be raised by a [...]

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Palestine, Contiguity and the Absolute Truth

I previously wrote of the manifestly false claims made by world leaders, and parroted as fact by the New York Times, that Israel’s permitting Jewish civilians to live in the area of Maaleh Admumim closest to Jerusalem cuts a potential Palestinian state in half. Some commentators went to far as to suggest I apologize to the New York Times. Instead, it is they who apologized – or rather corrected – their news pieces on the subject. Twice in three days.

Here is part of it: “the proposed development would not, technically, make a contiguous Palestinian state impossible.” I love the “technically,” as if people reading the Times do not think they are getting the “technical” truth but rather the “absolute truth,” as executive editor Jill Abramson memorably put it.

Of course, the putative Palestinian State would have odd borders. But so would Israel. If you make two states between the river and the sea, it is likely no one will be driving straight for long, but that has been clear since the General Assembly’s proposed partiton plan in 1947, which manifestly contemplated massive discontiguities all around. Indeed, lots of states are not contiguous, sometimes massively so, and get along fine. The U.S. is one, Israel 1949-67 was another. Belgium and Holland have a truly amazing number of extraterritorial enclaves and exclaves. It seems if nations have peaceable relations, some kinks in contiguity can be dealt with. If they are at each other’s throats, they could exacerbate tensions, and not be discontiguous for long (can anyone spell Nagorno-Karabakh? No seriously, can anyone spell it?). But since we are told that Israeli withdrawals from territory will create Israel and Palestine, living side by side in peace, we can assume we are dealing with the former case. [...]

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What the UN Palestine Vote Means and What It Doesn’t

1) It should be no surprise that 130-odd countries took the rather technical step of of voting recognize Palestine as a “non-member” in the U.N. General Assembly. That is roughly the number of countries that already directly recognize Palestine as a state! If they have already actually recognized the state themselves, voting to extend such recognition for some particular purpose is hardly precedent-making. (Palestine’s international-recognition level rivals Israel’s.)

2) The apparent diplomatic victory is itself a consolation prize for the collapse of Abbas’ bid last year for actual U.N. membership for Palestine, which was rejected at the Security Council. If that effort was to be a “diplomatic tsunami,” as Israel’s defense minister warned, the current ploy is at most a chill breeze.

3) The vote must be seen in the context of a long history of past anti-Israel resolutions in the GA. These illustrate both the automatic majority such resolutions enjoy, and their unimportance to actual events. For example, in the 1970s, the parliament of nations overwhelmingly agreed that Zionism is a form a racism, and thus the entire country is illegitimate. In 2009, the GA adopted a resolution that concluded Israel intentionally sought to slaughter innocent Palestinian civilians in the Gaza War – a resolution based on the Goldstone report, which has since been retracted by its eponymous author.

4) There is nothing new even in the European position. Since 1980 Europe has maintained that the lands occupied by Jordan and Egypt in their 1948-49 war against Israel is actually
“Palestinian territory,” which Israel must leave. The European votes are consistent with their accord with almost all major Palestinian demands.

5) The theory that some European votes were motivated by the recent Gaza campaign shows that Israel can’t just win. It gets rocketed when it leaves territory, [...]

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Israel’s Borders and International Law

This is a talk I gave this summer to a group of Jewish college students, which in broad strokes outlines the international law reasons the West Bank cannot be considered “Palestinian territory,” independent of the political or equitable merits of creating a Palestinian state there.

Watch on TorahCafé.com!

Please watch the whole thing before commenting.

Hopefully I say more more to say soon on the Palestinian statehood vote (I’m shopping around an op-ed on the subject). [...]

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