The Middle East Media Sampler 1/30/13: Abbas Wants To Take Israel To Court

From +David Gerstman:
1) Defining terror down; defining occupation up

In a New York Times op-ed nearly two years ago, Palestinian president Mahmoud Abbas wrote:

Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.

Now a pro-Palestinian activist, George Bisharat has filled in details as to how this process will work. In Why Palestine should take Israel to court in the Hague he writes:

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes. 

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

 Bisharat then cites Col. Daniel Reisner, the one time head of the IDF's legal department:

The former head of the Israeli military’s international law division, Daniel Reisner, asserted in 2009: “International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later it is in the center of the bounds of legitimacy.”

From the complete context, it's pretty clear that Reisner didn't mean violations as much as ill defined areas of the law. (Bisharat's implication is clear: the United States should be subject to ICC prosecution for targeted killings in Pakistan and Yemen.)

Bisharat makes a dubious claim here:

And it has treated civilian employees of Hamas — including police officers, judges, clerks, journalists and others — as combatants because they allegedly support a “terrorist infrastructure.” Never mind that contemporary international law deems civilians “combatants” only when they actually take up arms.

Elder of Ziyon has addressed the issue of the police officers in some detail:

This is a critical paragraph, and it highlights Goldstone's credulity. There is a clear statement from the police spokesman saying that the police were instructed to face the enemy, which is not a very ambiguous statement. Months later, when he is reached by commission members to explain this problematic statement, he seizes the opportunity to "clarify" that he only meant that they should be doing normal police duties. 

And Goldstone believes him. 

Not only that, his "proof" is an absurd statement that no policemen were killed in combat (presumably during the ground invasion.) This is a lie. According to PCHR and my research, 16 policemen were killed from January 4th and on, 34 policemen were killed, and my research indicates that at least 16 of them were members of terror organizations.

What international law "deems" can be fluid.

Even the concept of "occupation," on which Bisharat rests much of his case isn't as clear cut as he presumes. Eugene Kontorovich wrote recently:

I recently came across a discussion in the U.N.’s International Law Commission from 1950, as part of the drafting of the Draft Declaration on Rights and Duties of States. There were quibbles from countries such as France about whether annexation is always banned, or whether there might be various exceptions. 

In response, the Secretary observed: “It might be suggested that in order to constitute a crime under international law an annexation must be carried out through the use of armed force, with a view to destroying the territorial integrity of another State.” [See I Yearbook of Int. Law Comm. 137 (1950).] 

Indeed, it was not surprising that there was some confusion and concern about the extent of an annexation norm, since as the delegates admitted, there were some “frontier adjustments” made by the Allies after WWII.

The larger problem is that the New York Times continues to promote the Palestinian effort to avoid negotiations and have a settlement imposed on Israel internationally, with no editorial objections.

Please also see Seth Mandel's The Shameful Attack on Israel from Amnesty International.

2) Iran and Hagel

At the end of a long analysis of the behavior of the Iranian regime, Michael Rubin writes in Deciphering Iranian decision making and strategy today:

Wars in the Middle East are caused not by oil or water but by overconfidence. In 1988, an Iranian mine damaged a US guided missile cruiser. In retaliation, President Ronald Reagan ordered Operation Praying Mantis to destroy Iranian oil terminals. The US Navy decimated its Iranian challengers in the ensuing battle, the largest US naval surface engagement since World War II. The red line Reagan established created a tacit understanding that governed US-Iranian relations for another 15 years. As the Iranian leadership has concluded that it could—literally—get away with murder in Iraq and Afghanistan, that American red lines were ephemeral, and that the United States was not prepared to stop its nuclear program, Tehran has grown bolder. 

Iranian diplomats might talk, but the powers that be will not abide by any deal. The IRGC and its proxies will continue to test American red lines until the United States forcibly pushes back.

This is not calling for America declaring war on Iran, though, I suppose, some would consider it such. But if red lines are necessary for limiting the spread of Iranian influence, what does it mean that President Obama has nominated Sen. Chuck Hagel to be Secretary of Defense?

Seth Mandel asks (and answers)Are Hagel and Obama “Soul Mates” on Defense Policy?

They would travel to Iraq together, where Hagel was dismissive and suspicious of the military’s top brass. Obama would take office and do the same. Hagel would speak out against tough Iran sanctions, and Obama would work against them from the White House, opposing several iterations of them and finally watering them down when he couldn’t prevent sanctions from passing Congress. Hagel would loudly criticize even the contemplation of military action against Iran, and Obama would have his secretary of defense deliver a similar message to Israel. It is this pattern that has led Hagel’s critics to express concern about his nomination to be secretary of defense. Many worry Obama shares Hagel’s views; Obama’s defenders assure us he does not. The Washington Post’s Bob Woodward says the critics are right, and relays a conversation Obama and Hagel had at the beginning of Obama’s first term:

Mandel quotes a recent op-ed by Bob Woodward answering the question in the affirmative.

The AP reports:

Iran's elite Quds Force and Hezbollah militants are learning from a series of botched terror attacks over the past two years and pose a growing threat to the U.S. and other Western targets as well as Israel, a prominent counterterrorism expert says. Operating both independently and together, the militant groups are escalating their activities around the world, fueling worries in the U.S. that they increasingly have the ability and the willingness to attack the U.S., according to a report by Matthew Levitt of the Washington Institute for Near East Studies. His report points to two attacks last year -- one successful and one foiled by U.S. authorities -- as indications that the militants are adapting and are determined to take revenge on the West for efforts to disrupt Tehran's nuclear program and other perceived offenses. The report's conclusions expand on comments late last year from U.S. terrorism officials who told Congress that the Quds Force and Hezbollah, which often coordinate efforts, have become "a significant source of concern" for the U.S. The Quds Force is an elite wing of Iran's powerful Revolutionary Guard, the defenders of Iran's ruling clerics and their hold on power.

At a time where it appears that Iran will be more aggressive, President Obama has nominated someone who will be hesitant to fight back or establish red lines.

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