The ICC, settlements and the Orwellian denial of the Jewish presence in Israel
SINCE THE question in this narrative is to determine who the first occupant was, this implies that historical Jewish presence must be denied and that, as a corollary, Palestinians need to prove that they were the first occupants. The consequence of this narrative is that anything Jewish is erased from the history of the country.Col. Richard Kemp The ICC decision on Israel would make Himmler proud
For example, recently, Palestinian academics denied archaeological evidence of Jews in Israel, part of a narrative to portray Jews as recent invaders. More generally, this creates an impossible historical conundrum, since the presence of an Arab population emerged as a notable community in the territory of Israel after the Muslim conquests of the seventh Century and that, thereafter, this population always cohabited with the Jewish and Christian communities that remained after the conquests.
More specifically, the aspect of this broad narrative relating to the inherent illegality of Jewish presence in Judea and Samaria implies a certain view of the history of the past century. One could even say that this narrative requires a sort of Orwellian rewriting of the past, to erase key moments that fit uneasily with such a narrative.
Indeed, it requires a rewriting of the recognition of a Jewish right to self-determination that followed the Balfour Declaration of 1917. It ignores the conditions under which Judea and Samaria, as well as Gaza, were occupied respectively by Jordan and Egypt from 1947 to 1967. It ignores the circumstances of the 1967 Six Day War when Israel took control of this territory in a defensive war. It ignores the negotiated terms of the Oslo Agreements in relation to the distribution of authority in Judea and Samaria and the lack of final status of both borders and territories.
The wide-sweeping argument of illegality per se also ignores the diverse nature of each individual presence in these territories, in terms of where it is, how it came into existence, what legal regime applies to it, etc.
As in a courtroom, the issue comes down to the identification of competing narratives before the international community acting as a judge. Each side is therefore faced with the choice of which narrative to choose from. Some narratives can be reconciled. Others cannot.
The fact remains that the position that settlements are illegal as such serves a war-like narrative that denies any legitimacy to Jewish presence on the entire territory of Israel, as exemplified by numerous declarations, including a recent declaration by a Fatah official that Palestinian people will not relinquish a grain of soil from the land of historical Palestine from the [Mediterranean] Sea to the [Jordan] River.
The December 20 announcement by the ICC prosecutor that she is ready to open a formal investigation with settlement-related activities at its core will undoubtedly be seen as a first narrative victory for those challenging Jewish presence in Israel. This can only be countered if another narrative is presented, not just in public discourse, but at the ICC itself, which provides genuine procedural opportunities for participation in the judicial debate, as we noted in an editorial last September.
The ICC prosecutor accuses Israel, during the 2014 Gaza war, of using disproportionate force, willfully killing and injuring civilians, and intentionally attacking protected individuals and locations. She also alleges that the IDF committed war crimes against Gazans violently attempting to breach the border into Israel in 2018 and 2019.
I was present during these conflicts, witnessed, and was extensively briefed on IDF operations. I was a member of an investigation into the 2014 Gaza war by the High Level Military Group, an independent body of retired generals from Western armed forces and human rights experts. The group unanimously concluded that: "The IDF not only met its obligations under the Law of Armed Conflict, but often exceeded these on the battlefield."
Gen. Martin Dempsey, at the time Chairman of the U.S. Joint Chiefs of Staff, commented: "Israel went to extraordinary lengths to limit collateral damage and civilian casualties." My first-hand observations during the Hamas-instigated Gaza border violence in 2018-19 echo these assessments.
The allegation that Israel committed war crimes by transferring parts of its civilian population into occupied territory can only be described as outrageous. The West Bank, east Jerusalem and Gaza are not "occupied territories." The suggestion that willing tenancy on this land by Jews is intrinsically illegal sees the ICC prosecutor adopting the Nazi concept of Judenrein, cleansing an area of Jews.
Despite situations where such crimes have actually occurred, including Northern Cyprus and Crimea, no prosecutions for war crimes in this category have ever been brought against anyone. Special treatment is reserved for the Jewish state.
"The IDF takes more steps than any other Army in the history of warfare to preserve the lives of innocent civilians on the battlefield" @COLRICHARDKEMP @i24NEWS_EN pic.twitter.com/ORw3M45Ixt
— Jeff Smith (@JeffSmithi24) December 26, 2019
Nitsana Darshan-Leitner: Israel's Defensive Arguments Fell on Deaf Ears at the ICC
Since September 2012, when the Palestinians' status was upgraded in the UN to an observer state, they have repeatedly warned that if Israel does not submit to their demands, they will turn to the International Criminal Court in The Hague and formally submit war crimes complaints.
Israel tried to persuade ICC Chief Prosecutor Fatou Bensouda that the tribunal has no authority to discuss the Israeli-Palestinian conflict, since Israel is not a signatory to the Court's Rome Treaty and the Palestinians are not a state. Israel correctly argued that it has a strong and independent judiciary investigating every incident, and does not hesitate to prosecute and frequently convict whenever there is even the shadow of a violation of law. As such, the ICC has no authority to act as a super-review court for the Israeli justice system.
Every IDF tank and helicopter has an on-call legal advisor who is relied upon to instruct the units whether to shoot a shell or fire a missile when there is even the slightest question concerning collateral damage to civilians. But all of these defensive arguments seem to have fallen on deaf ears. The writer, an Israeli civil rights attorney, is president of the Shurat HaDin Law Center.