For decades, U.S. administrations have engaged in linguistic gymnastics to avoid applying international law to Israel. Now, with the fig leaf of the two-state solution gone, President Obama must confront this tangle of double standards and double talk, says Marjorie Cohn.
By Marjorie Cohn
As Israeli voters went to the polls, Prime Minister Benjamin Netanyahu declared he would oppose the creation of a Palestinian state. In what The New York Times called a “racist rant,” he also proclaimed, “right-wing rule is in danger” because “Arab voters are streaming in huge quantities to the polling stations.”
James Besser, Washington correspondent for Jewish newspapers for 24 years, wrote that Israeli voters, “more clearly aware of Netanyahu’s intent than ever,” have chosen “the apartheid path.”
Netanyahu’s remarks were met with outrage in the United States and around the world. The Obama administration reacted by saying the United States would “reassess” its policy toward Israel. And, significantly, White House Chief of Staff Denis McDonough told a J Street conference that “an occupation that has lasted for almost 50 years must end, and the Palestinian people must have the right to live in and govern themselves in their own sovereign state.”
Netanyahu’s words create a golden opportunity for Barack Obama to radically transform his policy of uncritical support for Israel’s ongoing violations of the law.
Israel took over the West Bank (including East Jerusalem) by military force in 1967 and has held it under military occupation ever since. Security Council Resolution 242, passed in 1967, refers to “the inadmissibility of the acquisition of territory by war” and calls for “withdrawal of Israel armed forces from territories occupied in the recent conflict.” Yet Israel continues to occupy the Palestinian territories it acquired in the “Six-Day War.”
Since 1967, Israel has transferred more than a half million of its own citizens into these territories. Israel continues to build settlements in the West Bank, which is occupied Palestinian territory. A state that is occupying territory that is not its own cannot build settlements on that territory and transfer its own citizens into them.
Under the Rome Statute for the International Criminal Court (ICC), such action constitutes a war crime. Article 8.2(b)(viii) of the statute defines “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” as a war crime.
The ICC can investigate and prosecute these crimes. Yet, in order to prevent such investigation and prosecution, the United States has consistently opposed Palestine becoming a party to the Rome Statute. Congress passed a law that would automatically discontinue the United States’ $400 million annual aid to the Palestinian Authority (PA) if Palestine were to bring charges against Israel in the ICC. Palestine will join the ICC on April 1. If Palestine files charges in the ICC, Obama should find indirect ways to provide funding to the PA to prevent its collapse.
Under the National Emergencies Act, the president has the power to declare an emergency response to a foreign policy crisis. Obama should designate the Israeli settlements an emergency. He could then regulate or prohibit any foreign exchange transaction that directly or indirectly contributes to the expansion of the illegal settlements.
Dozens of organizations designated as 501(c)(3) nonprofits by the Internal Revenue Service (IRS) funnel tens of millions of dollars annually to illegal Israeli settlements. Funding illegal activities violates IRS guidelines. The IRS should undertake a thorough investigation of the activities of these organizations.
War Crimes During Operation Protective Edge
In July 2014, Israel invaded Gaza and killed more than 2,000 Palestinians, the majority of them civilians. Nearly 10,000 Palestinians were wounded, more than 2,000 of them children. Tens of thousands of Palestinians lost their homes and infrastructure was severely damaged. Numerous schools, United Nations (UN) places of refuge, hospitals, ambulances and mosques were intentionally targeted.
Israel used the “Dahiya doctrine” to apply “disproportionate force” and cause “great damage and destruction to civilian property and infrastructure, and suffering to civilians populations,” as defined in the 2009 UN Human Rights Council (Goldstone) report. These acts constitute evidence of war crimes under Article 8 (2)(a) of the Rome Statute.
Flavia Pansieri, the UN deputy high commissioner for human rights, said that human rights violations “fuel and shape the conflict” in the occupied Palestinian territories, adding that, “[h]uman rights violations in the West Bank, including East Jerusalem, are both cause and consequence of the military occupation and ongoing violence, in a bitter cyclical process with wider implications for peace and security in the region.”
Nevertheless, the United States has opposed the investigation and prosecution of these crimes in the ICC. The United States has joined Israel in boycotting the UN Human Rights Council’s investigation of international law violations during the July 2014 attack (known as Operation Protective Edge). The U.S. government should support this process and the ICC investigation.
The United States provides Israel with $3.1 billion in military assistance each year. Under the Arms Export Control Act (AECA), countries that receive U.S. military aid can only use weapons for legitimate self-defense and internal security. Israel did not act in self-defense during Protective Edge and its actions went far beyond protecting internal security. Obama should suspend future deliveries of the weapons described in the AECA.
Moreover, under the Leahy Law, military units that commit human rights abuses cannot receive U.S. training or weapons, and individuals who commit human rights abuses are denied U.S. visas. The U.S. State Department’s annual report has documented Israeli violations.
And the Foreign Assistance Act of 1961 prohibits assistance to any country “which engages in a consistent pattern of gross violations of internationally recognized human rights.”
Obama should enforce these laws.
Illegal Barrier Wall
Israel constructed a wall that encroaches on Palestinian land. The International Court of Justice (ICJ, or the World Court) – the legal arm of the UN system – concluded that the construction of that wall and its associated regime impedes the liberty of movement of the inhabitants of the occupied Palestinian territory as guaranteed under Article 12 (1) of the International Covenant on Civil and Political Rights.
The ICJ also determined that the wall impedes the right to work, to health, to education and to an adequate standard of living as required by the International Covenant on Economic, Social and Cultural Rights. The ICJ ruled that Israel should dismantle the wall, make reparation for the damage it has caused and return the land, orchards, olive groves and other immovable property it seized to construct the wall – or compensate the aggrieved persons for the damage suffered.
The U.S. government should tell Israel to dismantle the wall in accordance with the ICJ’s ruling.
After 50 years of denial about Israel’s arsenal of nuclear weapons, the U.S. Defense Department has finally admitted that Israel has nuclear weapons. The Foreign Assistance Act of 1961, as amended, prohibits U.S. military assistance to countries that acquire or transfer nuclear reprocessing technology outside of international nonproliferation regimes; yet this law has been honored in its breach.
While the United States prods other countries to sign the Non-Proliferation Treaty (NPT), requiring international inspections, Israel refuses to sign the NPT, thereby avoiding inspections. Obama should enforce the law.
The United States has a policy of opposing all resolutions in the UN Security Council that condemn Israel’s illegal colonization of Palestinian territory, or that define the parameters of a two-state solution.
Indeed, the United States vetoed a resolution in February 2011 that would have condemned the building of Israeli settlements in Palestinian territory. And in November 2014, the United States opposed a draft resolution demanding Israel’s withdrawal from the West Bank within three years.
Obama has put all of his eggs in the “peace process” basket. But now that Netanyahu has stripped away all pretense of negotiating for a Palestinian state, Obama must drop his opposition to such resolutions in the council.
A senior White House official told The New York Times that the Obama administration might lend its support to a resolution “embodying the principles of a two-state solution that would include Israel’s 1967 borders with Palestine and mutually agreed swaps of territory.” The 1967 borders are those that existed before the “Six-Day War,” in which Israel took the West Bank, Gaza, the Golan Heights, the Sinai Peninsula and Jerusalem.
The U.S. Constitution requires that the president “take care that the laws be faithfully executed.” Netanyahu has dropped any pretense of good faith. It is high time for the U.S. government to halt its longstanding policy of turning a blind eye to Israel’s many violations of the law. Obama has a constitutional duty to enforce the law.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, a former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Copyright, Truthout. Reprinted with permission.