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Michael Ratner, Chair of the European Center for Constitutional and Human Rights in Berlin, says it’s uncertain if the move by Palestinians to join the ICC will lead to cases on the last military assault on Gaza or the continued settlement construction

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore. Welcome to the first edition of the 2015 Michael Ratner report. The Palestinian Authority has signed the Rome Statute, paving the way to access the International Criminal Court, based in The Hague. If accepted, Palestinians plan to pursue a case against Israel for crimes committed during the military assault on Gaza last summer known as Operation Protective Edge. Israel has responded by freezing the transfer of taxes that it collects on behalf of the Palestinian Authority, while the U.S. State Department says it will review the $440 million in aid it receives. This comes two weeks after UN Security Council rejected a resolution that would have cleared the path to statehood for Palestine. Now joining us to discuss the issue is Michael Ratner. Michael Ratner is president emeritus for the Center for Constitutional Rights in New York and chair of European Center for Constitutional Rights in Berlin. Michael, happy new year to you, and thanks for joining us on The Real News Network. MICHAEL RATNER, PRESIDENT EMERITUS, CENTER FOR CONSTITUTIONAL RIGHTS: Happy New Year’s to you, Sharmini, to The Real News, and to all your millions of viewers. PERIES: So, Michael, let’s start by what does this mean in terms of signing the Rome Statute and joining the International Criminal Court. Will it happen? RATNER: Well, I think it will happen. I mean, there probably–as you can see, as you mentioned, there’s a lot of pressure even today on the Palestinian Authority to retract it somehow, a big pushback. Netanyahu called it creating a confrontation with Israel. The U.S. says it’s counterproductive. Israel said they would cut off the money that is actually Palestinian money–it’s tax proceeds of the Palestinians. So it’s another robbery of the Palestinian people, not just the taking of the land, but now they’re taking their money as well. And the U.S. is pushing back as well. Now, what’s interesting to me is they’re screaming so much, because while it’s an important act to join the ICC, it’s not going to bring a revolution to the Palestinian people, it’s not going to really change the situation in Palestine, at least not very quickly, it’s only part of a much, much larger drama that’s being played out. But the way Israel and the United States are screaming, you’d think that tomorrow we’re going to see Palestinian state, at least that is in the occupied territories, West Bank and Gaza. But, of course, it’s not that. On the other hand, it is an important step, I think, for two reasons, one because the people who oppose a state–and we have both the U.S. and Israel on that side are screaming about it. And secondly, it took so many years the Palestinians to actually take this step, or[, rather,] for the Palestinian Authority to take this step. Here they’ve been going into negotiations year after year, decade after decade, and they’ve got–not only have they gotten nothing, but they’ve actually lost land and more land in the occupied territories. So 20 years ago, who knows how many settlers there were. Today there’s over half a million in the West Bank and East Jerusalem or Jerusalem. So you’re talking about a huge taking of land and the moving of a population from an occupier to the occupied territory while negotiations have gone on. So am I glad they did it? Yes. Is it going to be revolutionary? No. Obviously, what is needed is much more. I think depending on the worldwide movement of boycott, divestment, and sanction would be critical to that. But, of course, we should address what does it mean. PERIES: Right. So, Michael, one of the issues for Palestinians is, by joining the court, are they going to be able to pursue a case against Israel for what happened over the summer, the assault on Gaza. Now there’s some controversy over whether even if they accepted and they actually joined with it it will apply retroactively. RATNER: Well, there’s two issues here. One is pursuing a case, and the second is actually getting the case taken and winning the case. The first question is pursuing a case and what kind of case. And when I say winning a case, they have to be skeptical, because that court is a very biased, one-sided political court that has so far, to date, only indicted 36 people, and they’re all from Africa. It’s never indicted anyone else anywhere in the world. That includes complaints that were made to it about paramilitaries in Colombia, other places in the world where great atrocities have happened. So even if they got into the court, it’s still a very difficult issue. But on the other hand, Israel’s terrified about it, because Israel right now has complete impunity. Israel kills and murders at its whim, as it recently did in Protective Edge this summer, where 2,000 people were killed, 70 to 80 percent civilians, all Palestinians, 500 children. So the question is: will they be able to get a case into the court? And they’re saying the issue is retroactivity. Will they be able to bring in the Protective Edge–what happened in Protective Edge and the killings? Normally in the ICC, you only go back to the point at which you joined or formally joined the International Criminal Court. So that would mean as of, essentially, last week when the Palestinian Authority joined on behalf of the Palestinian state. The wrinkle here is that in 2009 and subsequently, Palestine filed various papers with the ICC. The international court didn’t accept it then, but said they wanted to get a opinion from the General Assembly of the United Nations. They got that opinion, and basically that opinion said, this is a state, they should go ahead. So the question of retroactivity is more complex than in a normal case. I think there’s a strong argument that the court should take a case going back to certainly include the recent massacres that happened in Gaza this past summer. Whether they will or not, difficult question. Let’s assume they don’t for whatever reason and hold it only goes back to last week when they signed. Well, in that case, of course, it’ll apply to any future violations by Israel, so another assault on Gaza like the one that just took place would clearly give jurisdiction to Palestine to go before the International Criminal Court. Will that prevent Israel from doing another assault? Hard for me to believe that that will, but I would like to hope it would restrain Israel a little bit. On the other hand, there is a continuing violation, a war crime that’s being committed by Israel every day, as we speak, yesterday, and tomorrow, and that’s moving the civilians of an occupying territory into an occupied territory. So, to the extent that Israel has moved civilians living in Israel, some half a million of them now, into a territory it occupied as a result of the 1967 War, that’s a war crime under the Geneva Conventions. And the ICC has jurisdiction over war crimes. And because it’s a continuing war crime, it’s not one you have to go back to, the ICC has immediate jurisdiction over that. And in some way that’s such an open and notorious violation. It’s not a question of, oh, we bombed here and we tried to kill this person and we got the wrong target. I think all those excuses are not worth anything by Israel, but they at least make those arguments. With moving people from Israeli into the occupied territories, 100 percent war crime, the ICC will have jurisdiction over that. And I have to tell you, because Israel’s war crimes are so extreme and so open and notorious, both the assaults on Gaza as well as the movement of civilians into occupied territories, that I think there’s a chance that, if they have any legitimacy, the International Criminal Court will have to go forward on opening an investigation on at least some part of those crimes. So I’m not without hope. And I think one reason you’re seeing Israel scream so much is Israel, like the United States, believes that no one should be in judgment about what it does in the world. And this is the first opportunity that there might actually be a system, or at least a court, saying to Israel, we will hold you accountable for your war crimes not just in Gaza, but in all of the occupied territories. PERIES: Right, Michael. And will this also mean that Palestinians will be held to the same measure in the Criminal Court in terms of their reaction to the Israel assault? RATNER: The answer is yes, that Palestinians in the occupied territories will also be held accountable under the same system that Israel will be held accountable. [Of course, it’s] difficult to compare the levels of criminality of one of the other. And recently an interesting thing. When I say also [will be] held accountable, they will, but in a way it will be different. And it will be different for the following reasons. The International Criminal Court generally takes on massive human rights violations. And so, recently you had a case of the Gaza flotilla, where Israel attacked and committed war crimes in attacking the Mavi Marmara, where it killed nine people and wounded 50 or more on an attack on the Gaza flotilla a few years ago. And a claim was made in the International Criminal Court by the country that owned the flag vessel on the Gaza flotilla that was attacked. The International Criminal Court came down interesting opinion. They said, while we believe that Israel may have committed war crimes in attacking the Gaza flotilla in the way they did, we are not going to take jurisdiction of it, because the level of the criminality was not on the massive scale that we need to undertake a serious investigation of those crimes. So I’m saying that because if we look at what is the most obvious one that people claim is a war crime, which is the sending of rockets from Gaza into Israel, and you count the number of people killed by those rockets, I mean, it’s miniscule. It’s either less than the numbers [of fingers] on my hand or less than that. It can’t recall whether it’s one or two or none. So it would seem to me that a fair decision by an ICC would be to say, okay, that may be violative of our law in some way without taking into self-defense and all that, that may be violative of human rights, but it’s not something we as the ICC should consider. On the other hand, the killing of 2,000 people in Gaza, 1,500 civilians, and the movement of half a million people into the occupied territories, that’s the kind of massive human rights violation that the International Criminal Court was set up specifically to address. So I think, yes, the answer is, theoretically, both sides should be taken to the court–or could be taken to the court, rather, not should be–but in fact the court, if it’s doing its duty in what it has just done in the case against Israel will refuse to look at what are claimed to be crimes by the Palestinians. PERIES: Right. So, Michael, thank you so much for this update and explanation of what it all means. Thank you for joining us. RATNER: And thank you for having me on The Real News. PERIES: And thank you for joining us on The Real News.


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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.