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Michael Ratner: Will the Palestinian Authority join the ICC despite intimidation?

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

The United Nations reports that of the 2,104 Palestinians killed in the recent war on Gaza, seven out of ten were civilian, that is, 69 percent of the total killed. One cannot stop stressing that this total includes 495 children and 253 women. Prime Minister Netanyahu does not deny the total number killed, but said that those killed, approximately 1,000 were, quote, terrorist, which would mean that the rest, roughly 52 percent, were civilians. Will Israel be held internationally accountable for these war crimes?

To discuss this, we are joined by Michael Ratner. Michael Ratner is the president emeritus of the Center for Constitutional Rights in New York and chair of the European Center for Constitutional and Human Rights in Berlin.

Thanks for joining us, Michael.


PERIES: Michael, it appears that PA is possibility launching a complaint in the international criminal Court. Is there any teeth to this?

RATNER: Well, Sharmini, you know, it’s jumping ahead a bit. They’re not ready to file a complaint yet, because first they have to join the International Criminal Court. And what we’ve been seeing a lot of ink about and a lot of words about, but everybody from the United States to the PA chairman, Abbas, is about the threat to join the International Criminal Court. And what they want to do if they do that is they don’t actually take Israel to the International Criminal Court. They take the incident, the killings, if they could, in Gaza or otherwise, and the International Criminal Court indicts individuals. They don’t indict countries. And they would do that, I think–and it’s important to do, because it’s a means of perhaps gaining some accountability for what you just described as the clear commission of the Israeli war crimes. There’s no question about it. As you said, the number of civilians killed compared to the number of military people killed, the number of children killed, there it was obviously a use, as I said in my last segment on Real News, use of disproportionate force. What Israel openly says it uses and calls the Dahiya doctrine, named after a part of a town in Beirut, part of a section of Beirut that they leveled in 2006 through their war in the war in Lebanon. And they openly advocate that we’re going to use disproportionate force. So they’re openly advocating that, yes, we will commit more crimes.

This week we saw some additions to those war crimes in Gaza. We saw the announcement of the Israeli–and few newspapers have used these words, but WikiLeaks uses it–the Israeli annexation of almost 1,000 acres of land in the West Bank or the occupied territories, and also the approval of some 1,400 new housing units in the West Bank. I mention that because a lot of our viewers may not be aware that that kind of annexation and building of settlements are war crimes as well. The Geneva Conventions prohibits moving the occupiers–civilians, civilians living in the occupied–civilians living in the occupiers’ territory, in other words, Israelis, into the occupied territory.

And I want to say there’s nothing I’d love to see more than an Israeli officials in the dock–one means of perhaps stopping the continued war crimes that Israel has committed and will commit in the future, and while we’re at it, tossing some U.S. officials who have supported and aided in abetting Israeli war crimes.

But the question I’ve asked myself as I’ve read all about this is: is this scene likely, despite all the current talk about it? Is the Palestinian authority threat real that they’re going to join the International Criminal Court? And will the International Criminal Court really hold Israel accountable if the Palestinian Authority goes to that court? First, for Palestine to get into the court and for the court to have jurisdiction over Israeli war crimes, Palestine must sign the convention on the International Criminal Court. It’s called the Rome Statute. A hundred twenty-two countries of already signed it, but of course not the U.S., not Israel, not Russia, not China. The prosecutor, interestingly, of the International Criminal Court said that she would accept Palestine joining the court, that she would consider it a state, because the General Assembly has recognized Palestine is a state, and therefore they can sign the convention that would give the International Criminal Court jurisdiction over Gaza and the occupied territories in the West Bank.

A few days ago, Palestine Authority Chairman Abbas said that all factions of the Palestinians had approved joining the ICC, but as he has done before, Abbas made it conditional. He said he was going to use it, going to go to the court, but it was conditional. In other words, he was using it as leverage. He said he would go to the international court unless peace negotiations on Palestine began again and that they began from the point of view the baseline being the pre-1967 borders, that is, from the Israel and Palestine that existed before the 1967 war and the conquest by Israel of both Gaza and the West Bank. So he said yes, Palestinian Authority, Palestine will join the court, but we won’t if you at least begin negotiations from that point of view. We’ll see.

It’s not the first time Palestinian Authority has hesitated. They did again when the General Assembly recognized them as a state. Palestine at that point in 2012 could have joined the ICC. They did not. They joined 15 other UN agencies, but refrained from joining the ICC, and not because they’re worried about one of their factions being charged in the ICC itself, such as Hamas for the rockets, but really because the Palestinian Authority is being very careful about offending the United States and Israel by joining the ICC. It’s hard to believe, but that’s really what’s going on, ’cause Israel considers Palestine joining the ICC as a real threat and really fears accountability in the court. When is such–. Oh, I’m sorry, Sharmini. Yes?

PERIES: Michael, what can they do to block Palestine from joining ICC?

RATNER: You know, we’ll get to that, but it’s really political pressure. They can’t really do very much. They can use their economic pressure. They can use their military pressure. Economic pressure, of course, Israel and the U.S. have great economic pressure over the Palestinian Authority. Lots of the tax payments that Palestinians pay are paid through Israel. Israel has to give those payments to the Palestinian Authority. The U.S. Congress has said they will cut off all aid to the Palestinian Authority if they join the ICC. So there are lots of pressure points by Israel and the United States.

And even if the ICC may not hold Israel accountable, Israel fights, as we know, on every single issue that can possibly implicate it in war crimes. So while they can’t just veto Palestine joining the court, they do have means of pushing the Palestinian Authority around, which they have used fairly successfully.

I should say the U.S. position is also very clear. Israel’s clear: we don’t want them in the ICC. Of course, Israel’s not in the ICC. U.S. position is clear: we don’t want Palestine joining the ICC. And what they say now and what they said in the past: it would, quote, wreck the peace process, as if there’s any peace process that’s worth anything other than a peace process that’s been used to cover Israel gobbling up Palestinian land, really since 1967. And as I said, U.S. Congress has threatened to cut off the funds to the Palestinian Authority.

What’s interesting is this has come up before. In 2009 it was also raised that there should be votes in the Security Council. This was after the Goldstone Report came out on the operation that killed some 1,500 Palestinians, Operation Cast Lead. Again there were threats to go to the ICC. There’s a WikiLeaks cable that came out from 2010, it’s a State Department cable from February 2010, and it’s laughable when you read it. It basically says talking points about the process of Palestine joining the ICC. And it says the talking points should be the United States is deeply committed to the advancement of human rights, the principal engagement with our partners to advance human rights. Well, that’s complete joke, certainly in most of the world, if not all the world, particularly in Palestine. And then the cable goes on–this is the State Department speaking–we believe that Israel has the Democratic institutions to ensure domestic accountability. This is a way of saying, we don’t think the International Criminal Court needs to look at this. And then it says, finally, quote, we firmly oppose referral of the allegations–this is from 2009–in the Goldstone Report to the International Criminal Court. Well, that’s their position then. That’s their position today. So despite all the talk about Palestine joining the International Criminal Court, it’s not clear they will really do it. As I said, it’s conditional. [incompr.] pressure on them not to do it.

But let’s for this discussion assume Palestinian Authority finally decides to join the International Criminal Court. What then? Will the ICC really indict Israeli officials for war crimes? There’s first a couple of legal issues. First, the International Criminal Court can only look at crimes that are committed after Palestine joins. So the crimes committed in Cast Lead in 2008-2009, can’t be looked at. Crimes committed last month or the last two months in what the Israelis call Protective Edge can’t be looked at because they occurred before Palestine joins the Court. So they can’t look at what’s gone before. But, hopefully, their joining the Court might have some effect in the future on having Israel not commit war crimes.

At the same time as that, and as I looked at this in preparing for this segment, I realized there’s one more crime or series of crimes that continues and that Israel constantly renews or engages in those crimes again and again. As I said earlier, the Geneva Conventions and statutes of the International Criminal Court prohibit the transfer of the occupying power’s civilians–in other words, Israelis–into the occupied territories. And that is what Israel has been engaged in since 1967. There’s perhaps 500,000 Israelis living in Jerusalem, East Jerusalem, and the occupied territories of the West Bank. It’s a continuing violation to remove your citizens occupying our citizens into those territories, and therefore it’s a continuing war crime. And as I said earlier, they’re continuing to build housing and move more people in. So there’s a war crime that the ICC could look at if the Palestine Authority joined the court, because that war crime will last a very long time, I’m afraid. The transfer would be investigated, indictments of many high Israeli officials past and present could follow.

The next question–that’s the legal question: would the court do it, politically? I’ve never loved the ICC. You know, lot of human rights people say, great, we’re getting international justice, International Criminal Court, etc. But let’s look at what it’s done for 12 years. In 12 years, it’s indicted 36 people. Well, that’s not a huge number. But if the number were somewhat widely distributed, perhaps the court make some sense. But where are all these people from? Every single person indicted has been from Africa, every single one. [incompr.] from South America, no one from Columbia, no one from Europe, no one from anywhere else. So what does that tell you about the politics of that court? And just remember, Israel and Palestine is a particularly loaded political issue in the most powerful country in the world, the United States, which will, as I said, protect Israel from the court at all costs. And will the court, when it finally gets jurisdiction, risk that?

You know, as skeptical as I am, I think there’s some chance the court might have to certainly open an investigation and perhaps, perhaps do some indictment, because the war crime of transferring half a million people to the occupied territories is so open, notorious, and egregious and so without any defense–there’s no defense to it. This is just an absolute war crime. There’s no excuses for it. And it’s condemned by so much of the world, the court would lose all legitimacy–all legitimacy–if it failed to indict Israeli officials. That doesn’t mean it will, but I’m just saying once the court gets jurisdiction of that, it’s a high risk for it not to begin to open that investigation and look at Israeli officials. And that is one reason I think Israel and the U.S. are fighting so hard against Palestine’s desire to join the court. And while I’m never Pollyannish about what the International Criminal Court will do in the face of political pressure, this may be the case where it is forced to act despite the pressure. At this moment, it’s up to the Palestinian Authority. And for me, I hope it joins the court. We–and I mean all of us–need to apply all possible pressure against Israel to end the occupation and restore the human rights of the Palestinian people.

PERIES: Thank you so much, Michael, for enlightening us and sharing your thoughts on this.

RATNER: Thank you, Sharmini, and thank The Real News for having me.

PERIES: And thank you for joining us on The Real News Network.


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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.