Palestine Papers Demonstrate Israeli Perfidy in Peace Negotiations

Leaked Documents: Who Was Serious About a Deal to End the Conflict?

Disclosure of Palestine Papers rebut Israeli claims that there is 'no partner for peace'

By Harriet Sherwood

January 24, 2011 "The Guardian" - - The Palestine Papers - the cache of documents from Israel-Palestine peace negotiations over the past decade which the Guardian is revealing this week - make fascinating reading for anyone interested in both the history and the future of this place.

Many Palestinians will be shocked at how much their negotiators were prepared to offer to reach a deal in 2008 - on settlements and on the right of return of refugees.

But there's another side of this coin too - the documents also show the Palestinians were serious about negotiating, and were willing to make big and painful concessions for peace and to secure their dream of a state.

From the papers I've read, there is little evidence of the Israelis matching this approach by making serious and painful concessions of their own.


Indeed Tzipi Livni is fairly dismissive of the offer on East Jerusalem settlements, focussing on what the Palestinians would not agree to, rather than acknowledging the magnitude of what they were prepared to concede.

Among the settlement blocs that the Palestinians were not willing to give up were Ariel and Ma'ale Adumim.

Ariel, the long finger-like settlement which stretches far into the West Bank, almost cutting it in two, has long been in contention. The Israelis insist they must keep it - it's home to 20,000 people; the Palestinians argue that it makes a contiguous state pretty much impossible. They also point out in the talks that Ariel sits on (and blocks their access to) a major aquifer, which they need for water - a rarely talked-about final status issue.

But it has long been assumed - at least among the Israelis - that Ma'ale Adumim (population: 35,000), the huge city east of Jerusalem stretching towards Jericho, part of the ring of settlements which cut East Jerusalem off from the West Bank, will be on the Israeli side of any future border. The Palestinians' unexpected refusal to give it up shows some mettle.

Of course, we don't know if this was a negotiating position, and whether Ma'ale Adumim would have been a card to play closer to a deal.

But it seems to me that after the disclosure of these papers, it will be very hard indeed for the Israelis to deploy their standard argument that the Palestinians are not serious about negotiating a deal and that they have no "partner for peace".

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Secret papers reveal slow death of Middle East peace process

Seumas Milne and Ian Black
guardian.co.uk,
Sunday 23 January 2011 20.08 GMT

The Palestine papers reveal the offer of concessions by Palestinian peace negotiators on areas such as the Haram al-Sharif/Temple Mount holy sites in Jerusalem. Photograph: Awad Awad/AFP/Getty Images

The biggest leak of confidential documents in the history of the Middle East conflict has revealed that Palestinian negotiators secretly agreed to accept Israel's annexation of all but one of the settlements built illegally in occupied East Jerusalem. This unprecedented proposal was one of a string of concessions that will cause shockwaves among Palestinians and in the wider Arab world.

A cache of thousands of pages of confidential Palestinian records covering more than a decade of negotiations with Israel and the US has been obtained by al-Jazeera TV and shared exclusively with the Guardian. The papers provide an extraordinary and vivid insight into the disintegration of the 20-year peace process, which is now regarded as all but dead.

The documents – many of which will be published by the Guardian over the coming days – also reveal:

• The scale of confidential concessions offered by Palestinian negotiators, including on the highly sensitive issue of the right of return of Palestinian refugees.
• How Israeli leaders privately asked for some Arab citizens to be transferred to a new Palestinian state.
• The intimate level of covert co-operation between Israeli security forces and the Palestinian Authority.
• The central role of British intelligence in drawing up a secret plan to crush Hamas in the Palestinian territories.
• How Palestinian Authority (PA) leaders were privately tipped off about Israel's 2008-9 war in Gaza.

As well as the annexation of all East Jerusalem settlements except Har Homa, the Palestine papers show PLO leaders privately suggested swapping part of the flashpoint East Jerusalem Arab neighbourhood of Sheikh Jarrah for land elsewhere.

Most controversially, they also proposed a joint committee to take over the Haram al-Sharif/Temple Mount holy sites in Jerusalem's Old City – the neuralgic issue that helped sink the Camp David talks in 2000 after Yasser Arafat refused to concede sovereignty around the Dome of the Rock and al-Aqsa mosques.

The offers were made in 2008-9, in the wake of George Bush's Annapolis conference, and were privately hailed by the chief Palestinian negotiator, Saeb Erekat, as giving Israel "the biggest Yerushalayim [the Hebrew name for Jerusalem] in history" in order to resolve the world's most intractable conflict. Israeli leaders, backed by the US government, said the offers were inadequate.

Intensive efforts to revive talks by the Obama administration foundered last year over Israel's refusal to extend a 10-month partial freeze on settlement construction. Prospects are now uncertain amid increasing speculation that a negotiated two-state solution to the conflict is no longer attainable – and fears of a new war.

Many of the 1,600 leaked documents – drawn up by PA officials and lawyers working for the British-funded PLO negotiations support unit and include extensive verbatim transcripts of private meetings – have been independently authenticated by the Guardian and corroborated by former participants in the talks and intelligence and diplomatic sources. The Guardian's coverage is supplemented by WikiLeaks cables, emanating from the US consulate in Jerusalem and embassy in Tel Aviv. Israeli officials also kept their own records of the talks, which may differ from the confidential Palestinian accounts.

The concession in May 2008 by Palestinian leaders to allow Israel to annex the settlements in East Jerusalem – including Gilo, a focus of controversy after Israel gave the go-ahead for 1,400 new homes – has never been made public.

All settlements built on territory occupied by Israel in the 1967 war are illegal under international law, but the Jerusalem homes are routinely described, and perceived, by Israel as municipal "neighbourhoods". Israeli governments have consistently sought to annex the largest settlements as part of a peace deal – and came close to doing so at Camp David.

Erekat told Israeli leaders in 2008: "This is the first time in Palestinian-Israeli history in which such a suggestion is officially made." No such concession had been made at Camp David.

But the offer was rejected out of hand by Israel because it did not include a big settlement near the city Ma'ale Adumim as well as Har Homa and several others deeper in the West Bank, including Ariel. "We do not like this suggestion because it does not meet our demands," Israel's then foreign minister, Tzipi Livni, told the Palestinians, "and probably it was not easy for you to think about it, but I really appreciate it".

The overall impression that emerges from the documents, which stretch from 1999 to 2010, is of the weakness and growing desperation of PA leaders as failure to reach agreement or even halt all settlement temporarily undermines their credibility in relation to their Hamas rivals; the papers also reveal the unyielding confidence of Israeli negotiators and the often dismissive attitude of US politicians towards Palestinian representatives.

Last night Erekat said the minutes of the meetings were "a bunch of lies and half truths". Qureia told AP that "many parts of the documents were fabricated, as part of the incitement against the … Palestinian leadership".

However Palestinian former negotiator, Diana Buttu, called on Erekat to resign following the revelations. "Saeb must step down and if he doesn't it will only serve to show just how out of touch and unrepresentative the negotiators are," she said.
Palestinian and Israeli officials both point out that any position in negotiations is subject to the principle that "nothing is agreed until everything is agreed" and therefore is invalid without an overarching deal.

Zionist Prime Minister to meet with President Obama

US questions its unwavering support for Israel: Consensus forming in Washington that Israeli government is abusing support with policies seen to be risking US lives

Chris McGreal
The Guardian
Monday 5 July 2010

There are questions that rarely get asked in Washington. For years, the mantra that America's intimate alliance with Israel was as good for the US as it was the Jewish state went largely unchallenged by politicians aware of the cost of anything but unwavering support.


Binyamin Netanyahu, left, arrives in Washington tomorrow to patch up relations with Barack Obama and the US administration. Photograph: Jim Watson/AFP/Getty Images

But swirling in the background when Binyamin Netanyahu, the Israeli prime minister, arrives in Washington tomorrow to patch up relations with the White House will be a question rarely voiced until recently: is Israel ‑ or, at the very least, its current government ‑ endangering US security and American troops?

Netanyahu would prefer to be seen as an indispensable ally in confronting Islamist terror. But his insistence on building Jewish settlements in East Jerusalem, which is causing a deep rift with Washington, is seen as evidence of a lack of serious interest in the establishment of a viable Palestinian state. That in turn is seen as fuelling hostility towards the US in other parts of the Middle East and beyond, because America is perceived as Israel's shield.

In recent months Barack Obama has said that resolving the Israeli-Palestinian conflict was a "vital national security interest of the United States". His vice-president, Joe Biden, has confronted Netanyahu in private and told the Israeli leader that Israel's policies are endangering US troops in Iraq and Afghanistan. Senior figures in the American military, including General David Petraeus who has commanded US forces in both wars, have identified Israel's continued occupation of Palestinian land as an obstacle to resolving those conflicts.

More recently, Israel's assault on ships attempting to break the Gaza blockade has compromised relations with Turkey, an important American strategic ally.A former director of intelligence assessment for the US defence secretary, last month caused waves with a paper called Israel as a Strategic Liability? In it, Anthony Cordesman, who has written extensively on the Middle East, noted a shift in thinking at the White House, the US state department and, perhaps crucially, the Pentagon over the impact of Washington's long-unquestioning support for Israeli policies even those that have undermined the prospects for peace with the Palestinians.

He wrote that the US will not abandon Israel because it has a moral commitment to ensure the continued survival of the Jewish state. "At the same time, the depth of America's moral commitment does not justify or excuse actions by an Israeli government that unnecessarily make Israel a strategic liability when it should remain an asset. It does not mean that the United States should extend support to an Israeli government when that government fails to credibly pursue peace with its neighbours.

"It is time Israel realised that it has obligations to the United States, as well as the United States to Israel, and that it become far more careful about the extent to which it test the limits of US patience and exploits the support of American Jews."

Cordesman told the Guardian that the Netanyahu government has maintained a "pattern of conduct" that has pushed the balance toward Israel being more of a liability than an asset.

"This Israeli government pushed the margin too far," he said. "Gaza was one case in point, the issue of construction in Jerusalem, the lack of willingness to react in ways that serve Israel's interests as well as ours in moving forward to at least pursue a peace process more actively."

It was a point made forcefully by Biden to Netanyahu in March after the Israelis humiliated the American during a visit to Jerusalem by announcing the construction of 1,600 more Jewish homes in the city's occupied east.

The Israeli newspaper Yedioth Ahronoth reported that at a meeting between the two men, Biden angrily accused Israel's prime minister of jeopardising US soldiers by continuing to tighten the Jewish state's grip on Jerusalem.

"This is starting to get dangerous for us. What you're doing here undermines the security of our troops who are fighting in Iraq, Afghanistan and Pakistan. That endangers us and it endangers regional peace," Biden told Netanyahu.

Obama's chief political adviser, David Axelrod, said the settlement construction plans "seemed calculated to undermine" efforts to get fresh peace talks off the ground and that "it is important for our own security that we move forward and resolve this very difficult issue".

Netanyahu sought to head off the issue when he spoke to pro-Israeli lobbyists in Washington earlier this year. "For decades, Israel served as a bulwark against Soviet expansionism. Today it is helping America stem the tide of militant Islam. Israel shares with America everything we know about fighting a new kind of enemy," he said. "We share intelligence. We co-operate in countless other ways that I am not at liberty to divulge. This co-operation is important for Israel and is helping save American lives."

But that argument is less persuasive to the Americans now. Last month, Israel's ambassador to the US, Michael Oren, said the Jewish state had suffered a "tectonic rift" with America. "There is no crisis in Israel-US relations because in a crisis there are ups and downs," he told Israeli diplomats in Jerusalem. "Relations are in the state of a tectonic rift in which continents are drifting apart."

Oren said that assessments of Israeli policy at the White House have moved away from the historic and ideological underpinnings of earlier administrations in favour of a cold calculation.

Cordesman said it is too early to tell whether Netanyahu has fully grasped that while there will be no change in the fundamental security guarantees the US gives Israel, "the days of the blank cheque are over".

He added: "I think it is clear there is more thought on how to deal with Gaza, how to deal with the underlying humanitarian issues, less creating kinds of pressures which frankly, from the viewpoint of an outside observer, have tended to push Hamas not toward an accommodation but toward a harder line while creating of all things an extremist challenge to Hamas. But until you see the end result, some comments and some token actions don't tell you there's been a significant shift."

Editor's NOTE:

In opposition to the argument made by Anthony Cordesman that the United States has a moral obligation/committment to the security of Israel, the truth is that from a moral perspective, the modern state of Israel has no claim whatsoever to the land it currently occupies in Palestine since it was taken from the Palestinian Arabs by force (the Nakba).

If the US is to salvage the moral highground, it should insist that at a minimum Israel must (1) return to the pre-1967 borders, (2) allow the return of those exiled Palestinian Arabs who desire it and (3) properly compensate the victims (and or their families) of the Israeli atrocities in the period 1945-1950 during which several million Arabs were forcibly sent into exile and or murdered by the Hagana (pre-Israeli "defense" force). Israel should also make reparations to the remaining Arab inhabitants of the West Bank and Gaza who have been since 1967 subjected to occupation and progressive encroachment on their land.

All subsquent US aid to Israel should be made conditional on Israel's compliance with the "3" points above. Each American of good conscience should ask that this be done in our names and should frequently contact their Congressional Representatives, Senators and the Obama administration in an concerted effort to accomplish same.

The "two-state solution" is effectively dead as is any other so-called Israeli/Palestinian peace initiative unless and until Israel is willing to observe the bear minimum (universal) moral norms. Israel's current policy vis a vis Gaza and the West Bank are not only illegal under international law and US law but are gravely immoral (from an Aristotelian/Thomistic [golden-rule] perspective) as well.

--Dr. J. P. Hubert


How Did The Jewish Zionists Acquire Palestine?




The roots of Israeli exceptionalism

By Mohamed El-Moctar El-Shinqiti
Aljazeera
Monday, June 28, 2010
09:56 Mecca time, 06:56 GMT

An American academic once told me: "Many people in the Islamic world think America does not believe in human rights, but they are wrong; America believes in human rights indeed, the problem is the American definition of human."

In other words: the American definition of 'human' is not a universal one. This is not purely an American characteristic; every culture faces the challenge of broadening its cultural limits and universalising its moral norms.

But among all human cultures and ideologies, the Israeli case is unique in its double standard.

Criminality wrapped in self-righteousness and aggression immersed in victimhood are a few striking characteristics of the Israeli reality and discourse.

The Israeli personality

The duality of "Israel's insistent emphasis upon its isolation and uniqueness, its claim to be both victim and hero," as Tony Judt wrote in Haaretz a few years ago, reflects the fragility and self-centeredness of the Israeli personality. This is not, unfortunately, exclusive to Israel's political elite, but rather it extends to their Zionist supporters worldwide, including those, such as novelist Elie Wiesel and philosopher Bernard-Henri Lévy, who portray themselves in humanistic and aesthetic images.

I was profoundly moved by the graphic description of the atrocities committed during the Holocaust in Elie Wiesel's Night, which depicts his and his father's experience of a terrifying process that violates human life and degrades human dignity.

But I was struck by the tone of self-righteousness and self-justification in Wiesel's fictional Dawn, particularly when he writes: "The commandment thou shalt not kill was given from the summit of one of the mountains here in Palestine, and we were the only ones to obey it. But that all over ... in the days and weeks and months to come, you will have only one purpose: to kill those who have made us killers."

When the Jewish South African judge, Richard Goldstone, exposed Israeli war crimes in Gaza, Wiesel called that "a crime against the Jewish people". But this is simply an immoral use of past atrocities as a moral justification for present brutalities and oppression.

Moreover, one cannot but entertain two questions here: Firstly, what kind of moral claim does Wiesel, who was born of a Romanian father and a Hungarian mother, have over the divine call at Mount Sinai in the heart of a Middle Eastern desert? And secondly, by which moral or legal norm are the Palestinians of today responsible for the wrongdoings of the Germans of yesterday?

Self-serving myths

Israel uses past atrocities as a moral justification for present brutalities [GETTY]The worst of this hypocritical language, however, can be found in Bernard-Henri Lévy's article about Israel's aggression against the Gaza Freedom Flotilla published in Haaretz on June 8, 2010.

Lévy presents himself in self-glorifying terms as being "someone who takes pride in having helped to conceive, with others, this kind of symbolic action ‏(the boat for Vietnam; the march for the survival of Cambodia in 1979)...".

But when it comes to Gaza's plight, Lévy simply dismisses the tragedy by denying the existence of the Israeli blockade and attacking easy targets, such as "the fascislamist government of Ismail Haniya" and "the Islamist gang who took power by force three years ago".

Thus, he shamelessly dismisses the grand effort of the multiethnic, multinational and religiously diverse group of humanistic leaders and activists on the Freedom Flotilla.

Moreover, Lévy lacks the objectivity to address the fascizionist - to borrow from his own terminology - gangs who aggressively invaded Palestinian land over six decades ago, and uprooted a whole population forcing them into the new Auschwitz and Buchenwald concentration camps - Gaza and the West Bank.

Indeed, for those who put their selfish desires above the moral principles of justice and compassion, their self-serving myths are better in their eyes than the ugly truth.

Jewish humanistic intellectuals, such as Professor Tony Judt and musician Gilad Atzmon deplore Israel's self-indulgence and lack of maturity. Judt writes: "Israel still comports itself like an adolescent: consumed by a brittle confidence in its own uniqueness; certain that no one 'understands' it and everyone is 'against' it; full of wounded self-esteem, quick to take offence and quick to give it ... that it can do as it wishes, that its actions carry no consequences, and that it is immortal."

Atzmon writes: "We are dealing here with a uniquely and seriously disturbed immature nation. We are dealing with a self-loving narcissistic child .... The more the Israelis love themselves and their delusional phantasmic innocence, the more they are frightened that people out there may be as sadistic as they themselves proved to be. This behavioural mode is called projection .... Jews have a very good reason to be frightened. Their national state is a racist genocidal entity."

'Holocaustianity'

What is most disappointing, however, is not the Zionist self-righteousness and narcissism; rather it is the Western acceptance and support of this attitude - an attitude that is better understood when placed in a historical context.

The main theoretical basis of the acceptance of Israeli exceptionalism in Western culture is the diversion, mainly within the Protestant branch of Christianity, of the Christian incarnation of God in the person of Jesus to a new incarnation of God in the Jews as a people - the Chosen People.

This tendency started with Martin Luther (1483-1546) who subdued Christianity theologically and morally to the Jewish factor in his small epistle That Jesus Christ was Born a Jew. Luther wrote in that epistle: "When we are inclined to boast of our position, we should remember that we are but Gentiles, while the Jews are of the lineage of Christ. We are aliens and in-laws; they are blood relatives, cousins, and brothers of our Lord."

Through this Luther - who was paradoxically a staunch anti-Semite - inadvertently opened a theological window, that would centuries later allow the 'cult of Israel', as it has been dubbed by the American writer Grace Halsell, to replace Christianity in most Protestant denominations, especially among American Baptists. After all, what they are doing is no more than a literal implementation of Luther's deification of the Jews.

Professor Yvonne Haddad of Georgetown University's Center for Muslim-Christian Understanding calls this heresy 'Holocaustianity'. And within this new heresy lie the roots of the Israeli exceptionalism.

Trivialising the Holocaust

Israel is becoming a moral burden for those who value social justice [GETTY]Professor Judt writes that: "What Israel lost by its continuing occupation of Arab lands it gained through its close identification with the recovered memory of Europe's dead Jews." But he knows well that the memory of the dead is the worse moral justification for murdering innocents: "In the eyes of a watching world, the fact that the great-grandmother of an Israeli soldier died in Treblinka is no excuse for his own abusive treatment of a Palestinian woman waiting to cross a checkpoint. 'Remember Auschwitz' is not an acceptable response."

But that is exactly the kind of moral justification we have from the Israelis today.

When an advisor to Shimon Peres, the Israeli president, tried to attack Helen Thomas' remarks in which she said Israelis should "go home ... [to] Poland, Germany ..." all he did is remind her that some of his relatives were killed in Poland and Germany more than half a century ago, as if that is a good reason to starve the Palestinians to death and to kill humanitarian activists in international waters today.

After all, the Israeli politician was just confirming what Thomas said: you belong there; not here.

This is how the Holocaust memory, a memory of a human tragedy by any and every measure, is trivialised by Israeli criminality.

A moral burden

Many political thinkers and politicians have recently realised that Israel is becoming a liability and a strategic burden for the US. It has always been a strategic burden. But the problem is much deeper. Israel is becoming a moral burden on all those who have an ethical conscience, including Jews who value human dignity and social justice.

Even those who spent their lives advancing the Zionist cause are today realising the moral paradox of their life's achievement. Henry Siegman, a German-born American writer who served as the executive director of the American Jewish Congress from 1978 to 1994, wrote in Haaretz on June 11, 2010: "A million and a half civilians have been forced to live in an open-air prison in inhuman conditions for over three years now, but unlike the Hitler years, they are not Jews but Palestinians. Their jailers, incredibly, are survivors of the Holocaust, or their descendants."

All decent human beings must support the oppressed Palestinian against the Israeli oppressor.

The oppressed Arabs of Palestine (Muslims and Christians) are rendering through their suffering a great service to the entire body of humanity, by exposing the most self-centered and supremacist ideology in our world - an ideology that is wrapped today in a bloody sacredness.

Israel’s War Crimes

Israel blamed its earlier wars on the threat to its security, even that against Lebanon in 1982. However, its assault on Gaza was not justified and there are international calls for an investigation. But is there the political will to make Israel account for its war crimes?

By Richard Falk

March 21, 2009 "Le Monde diplomatique" -- -For the first time since the establishment of Israel in 1948 the government is facing serious allegations of war crimes from respected public figures throughout the world. Even the secretary general of the United Nations, Ban Ki-moon, normally so cautious about offending sovereign states – especially those aligned with its most influential member, the United States – has joined the call for an investigation and potential accountability. To grasp the significance of these developments it is necessary to explain what made the 22 days of attacks in Gaza stand shockingly apart from the many prior recourse's to force by Israel to uphold its security and strategic interests.

In my view, what made the Gaza attacks launched on 27 December different from the main wars fought by Israel over the years was that the weapons and tactics used devastated an essentially defenceless civilian population. The one-sidedness of the encounter was so stark, as signalled by the relative casualties on both sides (more than 100 to 1; 1300-plus Palestinians killed compared with 13 Israelis, and several of these by friendly fire), that most commentators refrained from attaching the label “war”.

The Israelis and their friends talk of “retaliation” and “the right of Israel to defend itself”. Critics described the attacks as a “massacre” or relied on the language of war crimes and crimes against humanity. In the past Israeli uses of force were often widely condemned, especially by Arab governments, including charges that the UN Charter was being violated, but there was an implicit acknowledgment that Israel was using force in a war mode. War crimes charges (to the extent they were made) came only from radical governments and the extreme left.

The early Israeli wars were fought against Arab neighbours which were quite literally challenging Israel’s right to exist as a sovereign state. The outbreaks of force were of an inter-governmental nature; and even when Israel exhibited its military superiority in the June 1967 six day war, it was treated within the framework of normal world politics, and though it may have been unlawful, it was not criminal.

But from the 1982 Lebanon war this started to change. The main target then was the presence of the Palestine Liberation Organisation (PLO) in southern Lebanon. But the war is now mainly remembered for its ending, with the slaughter of hundreds of unarmed Palestinian civilians in the refugee camps of Sabra and Shatila. Although this atrocity was the work of a Lebanese Christian militia, Israeli acquiescence, control and complicity were clearly part of the picture. Still, this was an incident which, though alarming, was not the whole of the military operation, which Israel justified as necessary due to the Lebanese government’s inability to prevent its territory from being used to threaten Israeli security.

The legacy of the 1982 war was Israeli occupation of southern Lebanon and the formation of Hizbullah in reaction, mounting an armed resistance that finally led to a shamefaced Israeli withdrawal in 1998. This set the stage for the 2006 Lebanon war in which the announced adversary was Hizbullah, and the combat zone inevitably merged portions of the Lebanese civilian population with the military campaign undertaken to destroy Hizbullah. Such a use of hi-tech Israeli force against Hizbullah raised the issue of fighting against a hostile society with no equivalent means of defending itself rather than against an enemy state. It also raised questions about whether reliance on a military option was even relevant to Israel’s political goals, as Hizbullah emerged from the war stronger, and the only real result was to damage the reputation of the IDF as a fighting force and to leave southern Lebanon devastated.

The Gaza operation brought these concerns to the fore as it dramatised this shift away from fighting states to struggles against armed resistance movements, and with a related shift from the language of “war” to “criminality”. In one important respect, Israel managed to skew perceptions and discourse by getting the media and diplomats to focus the basic international criminal law question on whether or not Israeli use of force was “disproportionate”.

This way of describing Israeli recourse to force ignores the foundational issue: were the attacks in any legal sense “defensive” in character in the first place? An inquiry into the surrounding circumstances shows an absence of any kind of defensive necessity: a temporary ceasefire between Israel and Hamas that had been in effect since 19 July 2008 had succeeded in reducing cross-border violence virtually to zero; Hamas consistently offered to extend the ceasefire, even to a longer period of ten years; the breakdown of the ceasefire is not primarily the result of Hamas rocket fire, but came about mainly as a result of an Israeli air attack on 4 November that killed six Hamas fighters in Gaza.

Disproportionate force?

In other words, there were no grounds for claiming the right of self-defence as Israel was not the object of a Hamas attack, and diplomatic alternatives to force existed and seemed credible, and their good-faith reliance was legally obligatory. On this basis the focus of legal debate should not be upon whether Israeli force was disproportionate. Of course it was. The focus should be on whether the Israeli attacks were a prohibited, non-defensive use of force under the UN charter, amounting to an act of aggression, and as such constituting a crime against peace. At Nuremberg after the second world war, surviving Nazi leaders were charged with this crime, which was described in the judgment as “the supreme crime” encompassing the others.

The Gaza form of encounter almost by necessity blurs the line between war and crime, and when it occurs in a confined, densely populated area such as Gaza, necessarily intermingles the resistance fighters with the civilian population. It also induces the resistance effort to rely on criminal targeting of civilians as it has no military capacity directly to oppose state violence. In this respect, the Israeli attacks on Gaza and the Hamas resistance crossed the line between lawful combat and war crimes.

These two sides should not be viewed as equally responsible for the recent events. Israel initiated the Gaza campaign without adequate legal foundation or just cause, and was responsible for causing the overwhelming proportion of devastation and the entirety of civilian suffering. Israeli reliance on a military approach to defeat or punish Gaza was intrinsically “criminal”, and as such demonstrative of both violations of the law of war and the commission of crimes against humanity.

There is another element that strengthens the allegation of aggression. The population of Gaza had been subjected to a punitive blockade for 18 months when Israel launched its attacks. This blockade was widely, and correctly, viewed as collective punishment in a form that violated Articles 33 and 55 of the Fourth Geneva Convention governing the conduct of an occupying power in relation to the civilian population living under occupation. This policy was itself condemned as a crime against humanity, as well as a grave breach of international humanitarian law.

It also had resulted in serious nutritional deficiencies and widespread mental disorders on the part of the entire Gaza population, leaving it particularly vulnerable to the sort of “shock and awe” attack mounted by Israel from land, air and sea. This vulnerability was reinforced by Israel’s unwillingness to allow Gaza civilians to seek safety while the tiny Strip was under such intense combat pressure. Two hundred non-Palestinian wives were allowed to leave, which underscored the criminality of locking children, women, the sick, elderly and disabled into the war zone, and showed its ethnically discriminatory character. This appears to be the first time in wartime conditions that a civilian population was denied the possibility of becoming refugees.

In addition to these big picture issues, there are a variety of alleged war crimes associated with Israeli battlefield practices. These charges, based on evidence collected by human rights groups, include IDF firing at a variety of civilian targets, instances where Israeli military personnel denied medical aid to wounded Palestinians, and others where ambulances were prevented from reaching their destinations. There are also documented claims of 20 occasions on which Israeli soldiers were seen firing at women and children carrying white flags. And there are various allegations associated with the use of phosphorus bombs in residential areas of Gaza, as well as legal complaints about the use of a new cruel weapon, known as DIME, that explodes with such force that it rips body parts to pieces.

These war crimes concerns can only be resolved by factual clarifications as to whether a basis exists for possible prosecution of the perpetrators, and commanders and political leaders to the extent that criminal tactics and weaponry were authorised as matters of Israeli policy. In this vein too are the Israeli claims relating to rockets fired at civilian targets and to Hamas militants using “human shields” and deliberately attacking from non-military targets.

Even without further investigation, it is not too soon to raise questions about individual accountability for war crimes. The most serious allegations relate to the pre-existing blockade, the intrinsic criminality and non-defensiveness of the attack itself; and the official policies (eg confinement of civilian population in the war zone) have been acknowledged. The charges against Hamas require further investigation and legal assessment before it is appropriate to discuss possible arrangements for imposing accountability.

A question immediately arises as to whether talk of Israeli war crimes is nothing more than talk. Are there any prospects that the allegations will be followed up with effective procedures to establish accountability? There are a variety of potentially usable mechanisms to impose accountability, but will any of these be available in practice? This issue has been already raised by the Israeli government at the highest levels in the form of official commitments to shield Israeli soldiers from facing war crimes charges.

The most obvious path to address the broader questions of criminal accountability would be to invoke the jurisdiction of the International Criminal Court established in 2002. Although the prosecutor has been asked to investigate the possibility of such a proceeding, it is highly unlikely to lead anywhere since Israel is not a member and, by most assessments, Palestine is not yet a state or party to the statute of the ICC. Belatedly, and somewhat surprisingly, the Palestinian Authority sought, after the 19 January ceasefire, to adhere to the Rome Treaty establishing the ICC. But even if its membership is accepted, which is unlikely, the date of adherence would probably rule out legal action based on prior events such as the Gaza military operation. And it is certain that Israel would not cooperate with the ICC with respect to evidence, witnesses or defendants, and this would make it very difficult to proceed even if the other hurdles could be overcome.

The next most obvious possibility would be to follow the path chosen in the 1990s by the UN Security Council, establishing ad hoc international criminal tribunals, as was done to address the crimes associated with the break-up of former Yugoslavia and with the Rwanda massacres of 1994. This path seems blocked in relation to Israel as the US, and likely other European permanent members, would veto any such proposal. In theory, the General Assembly could exercise parallel authority, as human rights are within its purview and it is authorised by Article 22 of the UN charter to “establish such subsidiary organs as it deems necessary for the performance of its function”. In 1950 it acted on this basis to establish the UN Administrative Tribunal, mandated to resolve employment disputes with UN staff members.

The geopolitical realities that exist within the UN make this an unlikely course of action (although it is under investigation). At present there does not seem to be sufficient inter-governmental political will to embark on such a controversial path, but civil society pressure may yet make this a plausible option, especially if Israel persists in maintaining its criminally unlawful blockade of Gaza, resisting widespread calls, including by President Obama, to open the crossings from Israel. Even in the unlikely event that it is established, such a tribunal could not function effectively without a high degree of cooperation with the government of the country whose leaders and soldiers are being accused. Unlike former Yugoslavia and Rwanda, Israel’s political leadership would certainly do its best to obstruct the activities of any international body charged with prosecuting Israeli war crimes.

Claims of universal jurisdiction

Perhaps the most plausible governmental path would be reliance on claims of universal jurisdiction (1) associated with the authority of national courts to prosecute certain categories of war crimes, depending on national legislation. Such legislation exists in varying forms in more than 12 countries, including Spain, Belgium, France, Germany, Britain and the US. Spain has already indicted several leading Israeli military officers, although there is political pressure on the Spanish government to alter its criminal law to disallow such an undertaking in the absence of those accused.

This path to criminal accountability was taken in 1998 when a Spanish high court indicted the former Chilean dictator, Augusto Pinochet, and he was later detained in Britain where the legal duty to extradite was finally upheld on rather narrow grounds by a majority of the Law Lords, the highest court in the country. Pinochet was not extradited however, but returned to Chile on grounds of unfitness to stand trial, and died in Chile while criminal proceedings against him were under way.

Whether universal jurisdiction provides a practical means of responding to the war crimes charges arising out of the Gaza experience is doubtful. National procedures are likely to be swayed by political pressures, as were German courts, which a year ago declined to proceed against Donald Rumsfeld on torture charges despite a strong evidentiary basis and the near certainty that he would not be prosecuted in the US, which as his home state had the legally acknowledged prior jurisdictional claim. Also, universal jurisdictional proceedings are quite random, depending on either the cooperation of other governments by way of extradition or the happenchance of finding a potential defendant within the territory of the prosecuting state.

It is possible that a high profile proceeding could occur, and this would give great attention to the war crimes issue, and so universal jurisdiction is probably the most promising approach to Israeli accountability despite formidable obstacles. Even if no conviction results (and none exists for comparable allegations), the mere threat of detention and possible prosecution is likely to inhibit the travel plans of individuals likely to be detained on war crime charges; and has some political relevance with respect to the international reputation of a government.

There is, of course, the theoretical possibility that prosecutions, at least for battlefield practices such as shooting surrendering civilians, would be undertaken in Israeli criminal courts. Respected Israeli human rights organisations, including B’Tselem, are gathering evidence for such legal actions and advance the argument that an Israeli initiative has the national benefit of undermining the international calls for legal action.

This Israeli initiative, even if nothing follows in the way of legal action, as seems almost certain due to political constraints, has significance. It will lend credence to the controversial international contentions that criminal indictment and prosecution of Israeli political and military leaders and war crimes perpetrators should take place in some legal venue. If politics blocks legal action in Israel, then the implementation of international criminal law depends on taking whatever action is possible in either an international tribunal or foreign national courts, and if this proves impossible, then by convening a non-governmental civil society tribunal with symbolic legal authority.

What seems reasonably clear is that despite the clamour for war crimes investigations and accountability, the political will is lacking to proceed against Israel at the inter-governmental level, whether within the UN or outside. The realities of geopolitics are built around double standards when it comes to war crimes. It is one thing to proceed against Saddam Hussein or Slobodan Milosevic, but quite another to go against George W Bush or Ehud Olmert. Ever since the Nuremberg trials after the second world war, there exists impunity for those who act on behalf of powerful, undefeated states and nothing is likely to challenge this fact of international life in the near future, thus tarnishing the status of international law as a vehicle for global justice that is consistent in its enforcement efforts. When it comes to international criminal law, there continues to exist impunity for the strong and victorious, and potential accountability for the weak or defeated.

It does seem likely that civil society initiatives will lead to the establishment of one or more tribunals operating without the benefit of governmental authorisation. Such tribunals became prominent in the Vietnam war when Bertrand Russell took the lead in establishing the Russell Tribunal. Since then the Permanent Peoples Tribunal based in Rome has organised more than 20 sessions on a variety of international topics that neither the UN nor governments will touch.

In 2005 the World Tribunal on Iraq, held in Istanbul, heard evidence from 54 witnesses, and its jury, presided over by the Indian novelist Arundhati Roy, issued a Declaration of Conscience that condemned the US and Britain for the invasion and occupation of Iraq, and named names of leaders in both countries who should be held criminally accountable.

The tribunal compiled an impressive documentary record as to criminal charges, and received considerable media attention, at least in the Middle East. Such an undertaking is attacked or ignored by the media because it is one-sided, and lacking in legal weight, but in the absence of formal action on accountability, such informal initiatives fill a legal vacuum, at least symbolically, and give legitimacy to non-violent anti-war undertakings.

The legitimacy war

In the end, the haunting question is whether the war crimes concerns raised by Israel’s behaviour in Gaza matters, and if so, how. I believe it matters greatly in what might be called “the second war” – the legitimacy war that often ends up shaping the political outcome more than battlefield results. The US won every battle in the Vietnam war and lost the war; the same with France in Indochina and Algeria, and the Soviet Union in Afghanistan. The Shah of Iran collapsed, as did the apartheid regime in South Africa, because of defeats in the legitimacy war.

It is my view that this surfacing of criminal charges against Israel during and after its attacks on Gaza resulted in major gains on the legitimacy front for the Palestinians. The widespread popular perceptions of Israeli criminality, especially the sense of waging war against a defenceless population with modern weaponry, has prompted people around the world to propose boycotts, divestments and sanctions. This mobilisation exerts pressure on governments and corporations to desist from relations with Israel, and is reminiscent of the worldwide anti-apartheid campaign that did so much to alter the political landscape in South Africa. Winning the legitimacy war is no guarantee that Palestinian self-determination will be achieved in the coming years. But it does change the political equation in ways that are not fully discernable at this time.

The global setup provides a legal framework capable of imposing international criminal law, but it will not be implemented unless the political will is present. Israel is likely to be insulated from formal judicial initiatives addressing war crimes charges, but will face the fallout arising from the credibility that these charges possess for world public opinion. This fallout is reshaping the underlying Israel/Palestine struggle, (Editor's emphasis throughout) and giving far greater salience to the legitimacy war (fought on a global political battlefield) than was previously the case.

Zionism’s Dead End

Separation or ethnic cleansing? Israel’s encaging of Gaza aims to achieve both

By Jonathan Cook in Nazareth

The following is taken from a talk delivered at the Conference for the Right of Return and the Secular Democratic State, held in Haifa on June 21.

27/06/08 "ICH"' -- -- In 1895 Theodor Herzl, Zionism’s chief prophet, confided in his diary that he did not favour sharing Palestine with the natives. Better, he wrote, to “try to spirit the penniless [Palestinian] population across the border by denying it any employment in our own country … Both the process of expropriation and the removal of the poor must be carried out discreetly and circumspectly.”

He was proposing a programme of Palestinian emigration enforced through a policy of strict separation between Jewish immigrants and the indigenous population. In simple terms, he hoped that, once Zionist organisations had bought up large areas of Palestine and owned the main sectors of the economy, Palestinians could be made to leave by denying them rights to work the land or labour in the Jewish-run economy. His vision was one of transfer, or ethnic cleansing, through ethnic separation.

Herzl was suggesting that two possible Zionist solutions to the problem of a Palestinian majority living in Palestine -- separation and transfer -- were not necessarily alternatives but rather could be mutually reinforcing. Not only that: he believed, if they were used together, the process of ethnic cleansing could be made to appear voluntary, the choice of the victims. It may be that this was both his most enduring legacy and his major innovation to settler colonialism.

In recent years, with the Palestinian population under Israeli rule about to reach parity with the Jewish population, the threat of a Palestinian majority has loomed large again for the Zionists. Not suprisingly, debates about which of these two Zionist solutions to pursue, separation or transfer, have resurfaced.

Today these solutions are ostensibly promoted by two ideological camps loosely associated with Israel’s centre-left (Labor and Kadima) and right (Likud and Yisrael Beiteinu). The modern political arguments between them turn on differing visions of the nature of a Jewish state orginally put forward by Labor and Revisionist Zionists.

To make sense of the current political debates, and the events taking place inside Israel and in the West Bank and Gaza, let us first examine the history of these two principles in Zionist thinking.

During the early waves of Jewish immigration to Palestine, the dominant Labor Zionist movement and its leader David Ben Gurion advanced policies much in line with Herzl’s goal. In particular, they promoted the twin principles of “Redemption of the Land” and “Hebrew Labor”, which took as their premise the idea that Jews needed to separate themselves from the native population in working the land and employing only other Jews. By being entirely self-reliant in Palestine, Jews could both “cure” themselves of their tainted Diaspora natures and deprive the Palestinians of the opportunity to subsist in their own homeland.

At the forefront of this drive was the Zionist trade union federation, the Histadrut, which denied membership to Palestinians -- and, for many years after the establishment of the Jewish state, even to the remants of the Palestinian population who became Israeli citizens.

But if separation was the official policy of Labor Zionism, behind the scenes Ben Gurion and his officials increasingly appreciated that it would not be enough in itself to achieve their goal of a pure ethnic state. Land sales remained low, at about 6 per cent of the territory, and the Jewish-owned parts of the economy relied on cheap Palestinian labour.

Instead, the Labor Zionists secretly began working on a programme of ethnic cleansing. After 1937 and Britain’s Peel Report proposing partition of Palestine, Ben Gurion was more open about transfer, recognising that a Jewish state would be impossible unless most of the indigenous population was cleared from within its borders.

Israel’s new historians have acknowledged Ben Gurion’s commitment to transfer. As Benny Morris notes, for example, Ben Gurion “understood that there could be no Jewish state with a large and hostile Arab minority in its midst.” The Israeli leadership therefore developed a plan for ethnic cleansing under cover of war, compiling detailed dossiers on the communities that needed to be driven out and then passing on the order, in Plan Dalet, to commanders in the field. During the 1948 war the new state of Israel was emptied of at least 80 per cent of its indigenous population.

In physically expelling the Palestinian population, Ben Gurion responded to the political opportunities of the day and recalibrated the Labor Zionism of Herzl. In particular he achieved the goal of displacement desired by Herzl while also largely persuading the world through a campaign of propaganda that the exodus of the refugees was mostly voluntary. In one of the most enduring Zionist myths, convincingly rebutted by modern historians, we are still told that the refugees left because they were told to do so by the Arab leadership.

The other camp, the Revisionists, had a far more ambivalent attitude to the native Palestinian population. Paradoxically, given their uncompromising claim to a Greater Israel embracing both banks of the Jordan River (thereby including not only Palestine but also the modern state of Jordan), they were more prepared than the Labor Zionists to allow the natives to remain where they were.

Vladimir Jabotinsky, the leader of Revisionism, observed in 1938 -- possibly in a rebuff to Ben Gurion’s espousal of transfer -- that “it must be hateful for any Jew to think that the rebirth of a Jewish state should ever be linked with such an odious suggestion as the removal of non-Jewish citizens”. The Revisionists, it seems, were resigned to the fact that the enlarged territory they desired would inevitably include a majority of Arabs. They were therefore less concerned with removing the natives than finding a way to make them accept Jewish rule.

In 1923, Jabotinsky formulated his answer, one that implicitly included the notion of separation but not necessarily transfer: an “iron wall” of unremitting force to cow the natives into submission. In his words, the agreement of the Palestinians to their subjugation could be reached only “through the iron wall, that is to say, the establishment in Palestine of a force that will in no way be influenced by Arab pressure”.

An enthusiast of British imperial rule, Jabotinsky envisioned the future Jewish state in simple colonial terms, as a European elite ruling over the native population.

Inside Revisionism, however, there was a shift from the idea of separation to transfer that mirrored developments inside Labor Zionism. This change was perhaps more opportunistic than ideological, and was particularly apparent as the Revisionists sensed Ben Gurion’s success in forging a Jewish state through transfer.

One of Jabotinsky disciples, Menachem Begin, who would later become a Likud prime minister, was leader in 1948 of the Irgun militia that committed one of the worst atrocities of the war. He led his fighters into the Palestinian village of Deir Yassin where they massacred over 100 inhabitants, including women and children.

Savage enough though these events were, Begin and his followers consciously inflated the death toll to more than 250 through the pages of the New York Times. Their goal was to spread terror among the wider Palestinian population and encourage them to flee. He later happily noted: “Arabs throughout the country, induced to believe wild tales of ‘Irgun butchery’, were seized with limitless panic and started to flee for their lives. This mass flight soon developed into a maddened, uncontrollable stampede.”

Subsequently, other prominent figures on the right openly espoused ethnic cleansing, including the late General Rehavam Ze’evi, whose Moledet party campaigned in elections under the symbol of the Hebrew character “tet”, for transfer. His successor, Benny Elon, a settler leader and rabbi, adopted a similar platform: “Only population transfer can bring peace”.

The intensity of the separation vs transfer debate subsided after 1948 and the ethnic cleansing campaign that removed most of the native Palestinian population from the Jewish state. The Palestinian minority left behind -- a fifth of the population but a group, it was widely assumed, that would soon be swamped by Jewish immigration -- was seen as an irritation but not yet as a threat. It was placed under a military government for nearly two decades, a system designed to enforce separation between Palestinians and Jews inside Israel. Such separation -- in education, employment and residence -- exists to this day, even if in a less extreme form.

The separation-transfer debate was chiefly revived by Israel’s conquest of the West Bank and Gaza in 1967. With Israel’s erasure of the Green Line, and the effective erosion of the distinction between Palestinians in Israel and the occupied territories, the problem of a Palestinian majority again loomed large for the Zionists.

Cabinet debates from 1967 show the quandary faced by the government. Almost alone, Moshe Dayan favoured annexation of both the newly captured territories and the Palestinian population there. Others believed that such a move would be seen as transparently colonialist and rapidly degenerate into an apartheid system of Jewish citizens and Palestinian non-citizens. In their minds, Jabotinsky’s solution of an iron wall was no longer viable.

But equally, in a more media-saturated era, which at least paid lip-service to human rights, the government could see no way to expel the Palestinian population on a large scale and annex the land, as Ben Gurion had done earlier. Also possibly, they could see no way of persuading the world that such expulsions should be characterised as voluntary.

Israel therefore declined to move decisively in either direction, neither fully carrying out a transfer programme nor enforcing strict separation. Instead it opted for an apartheid model that accommodated Dayan’s suggestion of a “creeping annexation” of the occupied territories that he rightly believed would go largely unnoticed by the West.

The separation embodied in South African apartheid differed from Herzl’s notion of separation in one important respect: in apartheid, the “other” population was a necessary, even if much abused, component of the political arrangement. As the exiled Palestinian thinker Azmi Bishara has noted, in South Africa “racial segregation was not absolute. It took place within a framework of political unity. The racist regime saw blacks as part of the system, an ingredient of the whole. The whites created a racist hierarchy within the unity.”

In other words, the self-reliance, or unilateralism, implicit in Herzl’s concept of separation was ignored for many years of Israel’s occupation. The Palestinian labour force was exploited by Israel just as black workers were by South Africa. This view of the Palestinians was formalised in the Oslo accords, which were predicated on the kind of separation needed to create a captive labour force.

However, Yitzhak Rabin’s version of apartheid embodied by the Oslo process, and Binyamin Netanyahu’s opposition in upholding Jabotinsky’s vision of Greater Israel, both deviated from Herzl’s model of transfer through separation. This is largely why each political current has been subsumed within the recent but more powerful trend towards “unilateral separation”.

Not surprisingly, the policy of “unilateral separation” emerged from among the Labor Zionists, advocated primarily by Ehud Barak. However, it was soon adopted by many members of Likud too. Ultimately its success derived from the conversion to its cause of Greater Israel’s arch-exponent, Ariel Sharon. He realised the chief manifestations of unilateral separation, the West Bank wall and the Gaza disengagement, as well breaking up Israel’s rightwing to create a new consensus party, Kadima.

In the new consensus, the transfer of Palestinians could be achieved through imposed and absolute separation -- just as Herzl had once hoped. After the Gaza disengagement, the next stage was promoted by Sharon’s successor, Ehud Olmert. His plan for convergence, limited withdrawals from the West Bank in which most settlers would remain in place, has been dropped, but its infrastructure -- the separation wall -- continues to be built.

How will modern Zionists convert unilateral separation into transfer? How will Herzl’s original vision of ethnic cleansing enforced through strict ethnic separation be realised in today’s world?

The current siege of Gaza offers the template. After disengagement, Israel has been able to cut off at will Gazans’ access to aid, food, fuel and humanitarian services. Normality has been further eroded by sonic booms, random Israeli air attacks, and repeated small-scale invasions that have inflicted a large toll of casualties, particularly among civilians.

Gaza’s imprisonment has stopped being a metaphor and become a daily reality. In fact, Gaza’s condition is far worse than imprisonment: prisoners, even of war, expect to have their humanity respected, and be properly sheltered, cared for, fed and clothed. Gazans can no longer rely on these staples of life.

The ultimate goal of this extreme form of separation is patently clear: transfer. By depriving Palestinians of the basic conditions of a normal life, it is assumed that they will eventually choose to leave -- in what can once again be sold to the world as a voluntary exodus. And if Palestinians choose to abandon their homeland, then in Zionist thinking they have forfeited their right to it -- just as earlier generations of Zionists believed the Palestinian refugees had done by supposedly fleeing during the 1948 and 1967 wars.

Is this process of transfer inevitable? I think not. The success of a modern policy of “transfer through separation” faces severe limitations.

First, it depends on continuing US global hegemony and blind support for Israel. Such support is likely to be undermined by the current American misadventures in the Middle East, and a gradual shift in the balance of power to China, Russia and India.

Second, it requires a Zionist worldview that departs starkly not only from international law but also from the values upheld by most societies and ideologies. The nature of Zionist ambitions is likely to be ever harder to conceal, as is evident from the tide of opinion polls showing that Western publics, if not their governments, believe Israel to be one of the biggest threats to world order.

And third, it assumes that the Palestinians will remain passive during their slow eradication. The historical evidence most certainly shows that they will not.