Monthly Archives: August 2014

For the Palestinians to go to the ICC is a waste of time and effort

Many people ask why it is that Mahmoud Abbas doesn’t sign the “Rome statute” to include the State of Palestine, now recognised by the United Nations as a sovereign body, in the ICC (International Criminal Court). Abbas’ threats to do so has led, as I posted below on, the US State Department spokesperson intimating to journalists that the US would bloc Palestine’s attempt to become part of the ICC. The EU has followed the US position and even threatened Abbas to cancel a donor conference it was planning on Sept 1 to rebuild Gaza, if he pursued the ICC route.

Sa’ib Erekat, Palestine Chief Negotiator, has been pushing Abbas in this direction since some time (listen to leaked tape by opening link: and going to the bottom of the page) . Now Hamas’ Khaled Meshaal  has instructed Hamas’ chief negotiator in Cairo, Moussa Abu Marzouk to sign the document supporting Palestine’s application to become a member of the ICC. Abbas’ main line of argument for staying had been that it might endanger Hamas itself from being referred to the court. But now that Hamas, having taken legal advice is itself (as of 8th August 2014) now prepared to take that risk, the argument no longer stands. The PLO central committee, the Fatah central committee and all other Palestinian factions have all already agreed, and have signed the document.

Jordan is a signatory and a member of the ICC, and could easily have made a case on behalf of Palestine, but it hasn’t, also because of US/EU pressure. Now all Palestinian factions are decided to take their fate into their own hands and use the ICC weapon against Israel.

Palestinian chief negotiator

However, more generally, we have to consider that, as has been discovered by the lawyers pursuing crimes against humanity perpetrated by the Egyptian Junta, the ICC is politicised in the sense that it position is ambivalent and that the legal status of the Rome statute with respect to the functioning of the UNSC (United Nations Security Council), means that it is weak and will never be able to act independently, except with regard to minor war crimes figures which the US agrees should be prosecuted. If Abbas ran the gauntlet of US/EU threats, ICC judges might be leaned on to find some reason why application against Israel would be deemed to be outside its brief, as was discovered by the lawyers pursuing the case of Egypt.

There is a better avenue for redress on war crimes and crimes against humanity and that is  “Absolute Universal Jurisdiction”. Which involves pursuing the perpetrators of war crimes and crimes against humanity everywhere in local courts. Another legal term for this is ‘erga omnes’ (Lat.: towards all), which involves rights or obligations which are owned towards all, and are statutory rights distinguished for instance from a right based on contract, which is only enforceable against the contracting party. In international law this becomes a legal term describing obligations owed by states towards the community of states as a whole, expressing its need to prevent the breach of critical rights, typically including matters of piracy, genocide, slavery, torture, and racial discrimination. I detailed this on the following link:

Associated with this is pursuing cases in the ICJ (International Court of Justice), which is directly an arm of the UN and associated primarily with the disputes between nations, and therefore traditionally tied more to the administrative structure of the General Assembly rather than the UNSC. The ICJ has also recognised “Absolute Universal Jurisdiction” by precedent in the Barcelona Traction case, on which open link:

It is through the latter means that criminals like August Pinochet were arrested and other criminals like Tzipi Livni and Ehud Barak were pursued.

So when it comes to the ICC, so far it has looked more like a forum used by world powers to bring those war criminals they don’t like to justice. Nevertheless, the mere signing of the “Rome statute” could be a declaration of the coming of age of a united Palestinian government. Even if there are difficulties with the ICC, all the other avenues are still open.

Now Palestinian Justice Minister Salim Al-Saqqa confirms that indeed complaints will be lodged with the ICC on behalf of Palestine against Israeli leaders, and Palestinian Foreign Minister Riad Al Malki did meet with ICC officials on this score, although they did initially claim lack of jurisdiction, because the Rome statute still hasn’t been signed.

Turkey steps up to the plate

Turkey is seeking Israeli and Egyptian agreement for an air corridor to provide humanitarian aid to Gaza and evacuate thousands of injured Palestinians for treatment, Foreign Minister Ahmet Davutoglu told Reuters on Wednesday 6th August. This would overcome Egypt’s intransigence over the Rafah crossing

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South Africa looking to break the siege on Gaza through the African Union

Leave alone the difficulty of negotiating a fair peace deal in post-coup Egypt, and as thousands of severely injured people need complex reconstructive surgery immediately to avoid a lifetime of disability, and hospitals need re-equipping after being bombed, the crossings remain closed except for incoming basic necessities. The Palestinian delegation in Cairo is, as a result, not agreeing to new cease-fire extensions announced by Israel.

Backed by South Africa, Stanley Cohen ( is advising the African Union to force Egypt to open the Rafah crossing on the basis that according to the 4th Geneva Convention “.. states have an independent obligation to protect the rights and well-being of other individuals, and not engage in affirmative acts that, in and of themselves constitute war crimes”. Furthermore, Egypt has broken human rights clauses 58 and 79 of the African Union charter.

Egypt was re-admitted to the African Union (after being expelled subsequent to the July 2013 coup) as a result of Saudi Arabia and the Emirates making it a condition of their aid to African states.

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states have an independent obligation to protect the rights and well-being of other individuals, and not engage in affirmative acts that, in and of themselves, constitute war crimes – See more at:

One of the lawyers, Stanley Cohen, told MEE that “states have an independent obligation to protect the rights and well-being of other individuals, and not engage in affirmative acts that, in and of themselves, constitute war crimes.”

“The fact that Egypt is not bombing Rafah or shooting tank rounds into Gaza City does not mean that its conduct does not constitute a violation of international law.”

– See more at:

One of the lawyers, Stanley Cohen, told MEE that “states have an independent obligation to protect the rights and well-being of other individuals, and not engage in affirmative acts that, in and of themselves, constitute war crimes.”

“The fact that Egypt is not bombing Rafah or shooting tank rounds into Gaza City does not mean that its conduct does not constitute a violation of international law.”

– See more at:

One of the lawyers, Stanley Cohen, told MEE that “states have an independent obligation to protect the rights and well-being of other individuals, and not engage in affirmative acts that, in and of themselves, constitute war crimes.”

“The fact that Egypt is not bombing Rafah or shooting tank rounds into Gaza City does not mean that its conduct does not constitute a violation of international law.”

– See more at:

Lawrence Davidson: Israel and the U.S. undermine the Law

Lawrence Davidson, Professor of History at West Chester University, writes “… at some deep level we are still tribal. The concept of us-versus-them appears deeply ingrained in our psyches and thus influences our actions… Israeli behavior and U.S. protection of that behavior is a somber message that we have a way to go to overcome our propensity for murder and mayhem…”

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Looks like the US State Dept will pressure Palestinians not to go to ICC

In regard to the Palestinian legal action against Israel at the International Criminal Court (ICC) for war crimes, here is a section of yesterday’s press briefing:

QUESTION: Why shouldn’t an allegation of war crimes by any side in any conflict be addressed at the ICC? Why is that a bad forum? Why shouldn’t that happen?

MS. PSAKI: We – as you know, there have been occasions where we have been supportive of that.

QUESTION: So – but my question is, why not now? I mean —

MS. PSAKI: I think there is going to be a great deal of time to make a determination about what happened and what issues should be raised at a higher level, but right now we think the focus should be on addressing the current situation.

QUESTION: But why? I mean, I understand the underlying argument, I think, which is that if the Palestinians seek to join the Rome Statute or to sign onto it and then raise it, that that is a unilateral action that you believe prejudices the outcome. Correct?

MS. PSAKI: Mm-hmm.

QUESTION: But I don’t understand why, leaving aside that one piece of it, why the Government of the United States of America would not argue that if there are credible allegations of war crimes – and there are certainly things which you, in your name, said were disgraceful and that the U.S. Government was appalled by them – why it should not support an independent investigation into what happened.

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Angelo d’Orsi (Professor of History, Turin University), Aldo Gian­nuli (Professor Emeritus of Philosophy, Urbino University), Gianni Vat­timo (Professor Emeritus of Philosophy, University of Turin) and 522 other Italian academics, scientists, writers, teachers, businessmen and broadcasters accuse the State of Israel of war crimes:

…. noi accu­siamo i gover­nanti attuali di Israele, che nei con­fronti del popolo pale­sti­nese stanno por­tando avanti una poli­tica all’insegna dell’espansionismo colo­niale, della puli­zia etnica, del mas­sa­cro; noi accu­siamo i pre­ce­denti gover­nanti dello Stato di Israele, i quali hanno avviato la spo­lia­zione della terra, dei beni, della stessa memo­ria di un popolo vivente nella Pale­stina da mil­lenni; noi accu­siamo l’esercito israe­liano, e tutti gli altri corpi armati di quello Stato, che fanno ricorso ai metodi più infami del colo­nia­li­smo (quelli non a caso ere­di­tati dal Terzo Reich), usano armi proi­bite dalle con­ven­zioni inter­na­zio­nali, e si com­por­tano come una forza colo­niale di occu­pa­zione, trat­tando i pale­sti­nesi da esseri infe­riori, da espel­lere, e quando pos­si­bile, con il minimo pre­te­sto, da eli­mi­nare; noi accu­siamo la classe poli­tica, impren­di­to­riale e finan­zia­ria degli Stati Uniti d’America, senza il cui soste­gno costante Israele non potrebbe nep­pure esi­stere, e che garan­ti­sce l’impunità di cui lo Stato israe­liano gode; noi accu­siamo governi e par­la­menti degli Stati ade­renti all’Unione Euro­pea, e il Par­la­mento e la Com­mis­sione Euro­pea, per com­pli­cità attiva o pas­siva con l’espansionismo colo­niale, la puli­zia etnica, e mas­sa­cri inferti popolo pale­sti­nese; noi accu­siamo l’ONU per la sua inca­pa­cità di bloc­care Israele, di fer­mare la sua arro­ganza, di appli­care le san­zioni di con­danna (ad oggi 73) che nel corso degli anni sono state pro­mul­gate dal Con­si­glio di Sicu­rezza, con­tro Israele, in par­ti­co­lare quelle che impon­gono il rien­tro di Israele nei con­fini ante-1967 e il ritorno dei 700.000 pro­fu­ghi pale­sti­nesi…

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Gaza: Ode to the Lost American Conscience

James A. Russell, Associate Professor in the Department of National Security Affairs at the Naval Postgraduate School in Monterey, writes: “Watching the US-backed Israeli bombardment of Gaza makes me ashamed to be an American. The sight of US-made bombs bursting in the air, in hospitals, in homes, and over beaches is a far cry from the sense of American exceptionalism engendered by Francis Scott Key’s observations of the British shelling of Baltimore during the war of 1812…”

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The right to self-defence

Jonathan Cook writes that “Barack Obama said Israel had a right to defend itself from rockets fired out of Gaza… The logic is deeply flawed. Israel is occupying and besieging Gaza, conferring on its inhabitants a right under international law to fight for their freedom. How does the oppressor [and] lawbreaker [then] have a right to self-defence?

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He also writes that there is a long standing confusion held by many including Human Rights Watch (HRW) that unlike Hamas’ rockets, which are (as a result of their crudity) “terrorist”, Israel’s missiles are precise and therefore their use not inherently inadmissible.

This argument with HRW goes back to 2006, in a discussion about Hizbullah’s rockets. On this open links:


Cook writes that lately : “There is… more and more evidence that Israel’s weaponry is very imprecise. Even if we assume total good faith on Israel’s part that it is trying to hit only Hamas and other military sites, it is clear it cannot do so even with the advanced weaponry it has. The inherent imprecision of its arsenal is compounded many fold by the fact that it is using these weapons in densely built-up areas”. Open link:


US and Israel on Gaza: Changing the norms underpinning the laws of war

Listen to Stephen Zunes, Professor of Politics, University of San Francisco, open link:

Prof. Zunes explains how US Congress in its Res. 107 of July 16, 2014 seems to be seeking to change the laws of war by allowing Israel to attack civilians on the basis that they are being used as human shields. Firstly, Israel attacked unoccupied UN schools 7 times after the UN made no less than 17 calls to the Israeli forces to explain that the schools were unoccupied and held only local civilian IDPs, including a large proportion of children, and Israeli forces attacked these schools anyway, killing large numbers of civilians and children. These were no human shields, and Israel knew it. Secondly, even if they were human shields, attacking them deliberately is illegal under the 4th Geneva Convention of 12th August 1949: see text by opening link:

Amnesty International calls for halting supplies to Israel as evidence of war crimes mount

Human rights Watch witness Israeli soldiers deliberately shooting and killing fleeing civilians. Open link:

Also see the Center for Constitutional Rights fact sheet outlining Israel’s violation of humanitarian-law statutes. Open link:


The new Palestinian political campaign

As we enter a new political phase in the latest Gaza crisis today 4th August Khalil al-‘Anani writes:


The Palestinian resistance groups have succeeded in establishing new political rules of the game. What has become clear are not only military successes, which are significantly greater than in the previous wars of 2008 and 2012, but political and diplomatic successes.

The Palestinian resistance performance on these fronts is no less assertive than their military strategy, where the game is being played with intelligence and precision, especially in the light of difficult conditions in the region, potentially suffocating all legitimate resistance. Preliminary results show that the diplomacy and political activity of the Palestinian resistance has, like their military performance, surprised everyone.

The Palestinians in Gaza have achieved this primarily by providing themselves with diplomatic and political cover, by emphasising the legitimate demands of the Palestinian people. They have insisted that these demands are central to all negotiation and have ignored all extraneous aspects relating to the tangential interests of intermediaries.

The resistance is realistic about its strengths and weaknesses and those of its antagonists; eschewing both exaggeration and underestimation. Key is the fact that the Palestinians did not violate the 2012 truce agreement, and that they didn’t initiate the war. It was Israel that provoked the current war for political and internal reasons, thus  all blame can be removed from the Palestinian resistance and placed instead on Netanyahu, who, it seems, will end up paying the price for his folly and recklessness.

Despite the resistance groups’ entirely justified rejection of the Egyptian ceasefire initiative,  they remain entirely open to Cairo’s demarches. Meanwhile, they have not been drawn into Egypt’s media war despite its “Zionisation” and the pro-Israel affiliations of those who support it and incite public hostility towards Gaza. This media war is considered to have been created deliberately to distract the resistance from its main task and draw it into an irrelevant fight over the attempted demonisation of the Palestinian people amongst Egyptians.

Current Palestinian diplomatic and political overtures have in fact been based in part on military gains and events on the ground, basing demands to reflect a new reality in order, and thereby progress towards achieving [long standing] legitimate goals. Hamas’s rejection of the original Egyptian was based on its denial the people’s demands.

Furthermore, the Palestinian resistance has avoided being politically isolated, countering external maneuvers in this respect by communicating with Tunisia, Kuwait, Turkey and Saudi Arabia, besides Qatar, thus breaking down distrust and gaining the confidence of some Arab such that, at least, any existing hostility could be neutralised. Particularly, no conceit was displayed after their surprising military performance. Such restraint illustrates the clarity of the collective thought of Palestinian political leaders and points to high chances of their success.

The shortcoming of the current political drive that needs to be remedied is the need for the consolidation of a diplomatic umbrella for future political maneuvres, beyond merely the regional framework, into the international arena, in order to involve countries such as Brazil, Venezuela, Indonesia and Malaysia, as well as bodies like the African Union, the Organisation of Islamic Cooperation and others, who can put pressure on the international community to accept Palestinian demands and isolate Israel. Thus the global awakening of pro-Palestinian activism and support can be built upon, given that the Gaza conflict has now brought the whole Palestinian issue back to the forefront of world news, representing in fact a major blow to Israel [and its allies, especially in the Arab world].

originally appeared in Arabic in the Jerusalem newspaper al-Risala

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