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.”
President Barack Obama stands with Israeli President Shimon Peres and Prime Minister Benjamin Netanyahu during the President Obama’s official arrival ceremony in Tel Aviv, Israel, in 2013. (Official White House Photo by Pete Souza)
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.
I think if more Americans were to learn about Zionism, say going all the way back to Theodor Herzl, this could make a difference towards their thinking. Instead, as Netanyahu spoke about a 4,000 year old struggle, this is the narrative Americans are suppose to believe. I maybe putting to much on education, but seriously Americans are being fed a terrible lie when it comes to Jewish heritage within Palestine. If nothing else Americans should at least know what prompted Truman to recognize Israel in the first place. Remember Harry had more Jewish voters than Arab voters.
Israel’s settlements in the West Bank (which is outside of Israel’s own borders) have clearly violated international law from the beginning. Specifically they violate Article 49 of the Fourth Geneva Convention of 1949 which forbids an occupying power from acting to “transfer parts of its own civilian population into the territory” (in other words, colonisation).
The ICJ (International Court of Justice) made this clear on 9 July 2004 in its conclusion on the wall in the occupied territories (which was mentioned in the article above):
“The information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, of the Fourth Geneva Convention which provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.†The Security Council has taken the view that such policy and practices “have no legal validity†and constitute a “flagrant violation†of the Convention. The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”
http://www.icj-cij.org/docket/files/131/1677.pdf
Regardless of what Obama does or does not do, this article has a comprehensive list of Israel’s violations of US and international law that is staggering. I knew the US has consistently turned a blind eye to their illegal acts, but I never realized it was this extensive, and yet, I sense this list is just hitting the high profile stuff.
Actually if you look at the accusations within a true legal lens, these “violations”hold no ground. The occupying power didn’t transfer those people, they willingly transferred themselves. If you actually look at the other U.N.resolutions, the area that these people are being transferred to (area C -if you don’t know what I’m talking about then you’re too ignorant to be discussing the topic) is not occupied, but legally proclaimed to be Israeli land for them to decide who can build where. But nobody actually does any research for themselves, they just like to repeat misleading information that is intentionally distributed in order to polarize the narrative.
Think For Yourself, Area C was not given to Israel. Each of the areas of the occupied West bank and Gaza was to be handed over to the Palestinians over time. Each area had it’s own rules as to who would police the region. Also Oslo never went anywhere because even though it wasn’t written down, Israel presumptuously thought that you can make peace while still building illegal settlements on occupied land. Along the Jordan, Palestinian farmers lost their land to so called Israeli army training centres, farm hands if they exited the area during the off season could not get back in to help the farmers.
Your ‘think for yourself’ is exactly that with no foundation. And the Israeli who wanted to make peace with the Palestinians was shot by an Israeli settler.
“The occupying power didn’t transfer those people, they willingly transferred themselves.”
The Israeli state was, and still is, heavily involved in creating the settlements and it effectively treats them as part of Israel. It treats the settlers there as Israeli citizens and not as emigrants who have left Israel. This is in spite of the fact that it has never officially annexed the West Bank.
(area C -if you don’t know what I’m talking about then you’re too ignorant to be discussing the topic)
Dear me! I’ve just learned I’m too ignorant to be discussing Israel’s thefts and murders, for I’d never heard of “area C” until just now.
After reading the whole post, I’m also quite uncertain whether the author is one of the prolific Zionist Trolls or merely a fellow who likes to play the authoritative bully boy.
Perhaps Mr. “Think for yourself” could clarify the situation for me.
Re: The occupying power didn’t transfer those people, they willingly transferred themselves.
That’s nonsense, since the civilians can’t even enter the occupied territories without the permission of the State and its military commander or without using roads or rail services provided by the state. The State has also facilitated the establishment of the settlements themselves and furnished them with security, water, electricity, and telecommunications service. There is a general principle of law which holds that “No one shall be allowed to benefit by his own wrongdoing, nor enrich himself as a result of his own criminal acts.†When the Rome Statute entered into force, the Attorney General of Israel advised that the Prosecutor could file charges against individual settlers for war crimes. See A-G: New Hague court may indict settlers for war crimes” http://www.haaretz.com/news/a-g-new-hague-court-may-indict-settlers-for-war-crimes-1.42690
In this case, we are talking about hundreds of thousand of settlers, including state officials, who have taken personal possession of more than 2 million dunams of pillaged state and private property or the proceeds of that pillaging in the form of titles or monetary instruments exchanged between the parties of a joint criminal enterprise.
UN Security Council resolution 62 was adopted under the auspices of Article 40 (Chapter 7) of the UN Charter and required “The delineation of permanent armistice demarcation lines beyond which the armed forces of the respective parties shall not move.” http://www.yale.edu/lawweb/avalon/un/scres062.htm
The armistice agreement that Israel signed with Jordan stipulated that “Rules and regulations of the armed forces of the Parties, which prohibit civilians from crossing the fighting lines or entering the area between the lines, shall remain in effect after the signing of this Agreement with application to the Armistice Demarcation Lines defined in articles V and VI.” http://avalon.law.yale.edu/20th_century/arm03.asp
The UN Security Council resolution 73 was subsequently adopted under the auspices of Article 40 (Chapter 7) accepting the agreements on behalf of the UN and reaffirming the obligation of the parties to ensure the continued application and observance of the agreements pending the final peace settlement. http://www.un.org/ga/search/view_doc.asp?symbol=S/Res/73%20%281949%29
The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations says:
“Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”
Security Council resolution 242 did not supersede the UN Charter or those earlier Chapter 7 resolutions which established the international armistice lines. It actually required the withdrawal of the armed forces of Israel. Security Council resolution 338 was subsequently adopted under the auspices of Chapter 7. It required, among other things, the immediate implementation of the withdrawal clause of resolution 242.
It is way overdo for the USA to pull ALL personnel and equipment from the Middle East. They also need to stop ALL Aide to the Middle East. Time for Israel and all of the other countries in the Middle East to take care of themselves.
The USA is treated with disrespect and without any show of support for any aide or actions. They want what they get from the USA, but disrespect us. Thanks, but no thanks to the Middle East.
Cancel all the aid, all the weapon supplies and cancel the guaranteed UNSC veto covering for Israel as well?
Good luck with that, it may happen in 500 years or so (if USA and Israel – or the planet- is still around).