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| Hillel Neuer |
Israel Hayom..
27 December '19..
Link: https://www.israelhayom.com/2019/12/27/they-say-every-jewish-settler-is-a-war-criminal/
It's doubtful there is anyone who can better describe the hypocrisy of international institutions when it comes to Israel better than Hillel Neuer. The 49-year-old Jewish legal scholar, born in Canada, has been on the frontline against the UN for more than a decade as executive director of the nonprofit watchdog group UN Watch in Geneva. He established a coalition of civil organizations that are working to promote human rights in the darkest dictatorships in the world, whose governments hold key positions in the UN.
A week ago, the hypocrisy of the international system reached a new height with the announcement that Chief Prosecutor of the International Criminal Court Fatou Bensouda had decided there were sufficient grounds to open an investigation against Israel for alleged "war crimes."
Neuer says that there is no alternative but for Israel to take on the ICC head-on. He thinks that ICC judges cannot adopt a position that contradicts that of the UN, which has recognized the "state of Palestine," and will therefore decide on an official investigation against Israel that centers on the accusation of war crimes and is expected to address Israeli settlements over the Green Line – which is why Israel declined to join the ICC in the first place.
"Over a course of a few years, the prosecutor was conducting a preliminary investigation, in which the court started to probe accusations that Israel was committing war crimes," Neuer said. "Now the main question is whether the judges will decide that the ICC has the authority to launch a full-scale investigation. Israel's position is that the Palestinian Authority is not a state, and therefore cannot be a plaintiff in the court or give it judicial prerogative. According to Israel, the PA does not meet the criteria of international law to be considered a state and therefore has no control over territory. So there is a basic debate here about the kind of judicial authority the court has," he says.
There have already been two attempts to try Israel, or rather senior Israeli officials, in The Hague. In 2012, the court rejected a suit against Israel for alleged war crimes supposedly committed during Operation Cast Lead, on the basis that "Palestine" was not a state and therefore it had no authority to discuss petitions on the issue. Since then, Israel's enemies have been working to create a situation that would allow Israel to be attacked in The Hague: at the end of 2012, the UN General Assembly recognized "Palestine" as an observer nation. Given that, despite an outcry from Israel, the PA was able to join the ICC in April 2015, and then rushed to file a suit against Israel.
A few weeks ago, the ICC rejected a petition from the Comoro Islands to discuss alleged Israeli war crimes committed during the raid on the Mavi Marmara vessel in May 2010. Turkey, which has committed plenty of war crimes itself, is not a member of the ICC and couldn't sue Israel itself, but the regime of Turkish President Recep Tayyip Erdoğan took care that the flotilla of which the Mavi Marmara was part sailed under the flag of another Muslim state, which was a member of the ICC and could therefore sue Israel. But the attempt failed.
Positions that became law
Neuer explains that this week's decision by the ICC presents a more complicated challenge for Israel.
"On one hand, we have the military conflict between Israel and the Palestinians, especially the recent clashes in the Gaza Strip and the accusations about war crimes being committed there. In this matter, Israel can say that it has a trusted military justice system that can and is authorized to handle these accusations itself, as other democracies do. The court can only take action as a last resort in instances where there is no credible justice system that can handle accusations of war crimes. It's clear that Israel is a democracy that is willing to put its highest-ranking officials on trials when necessary, and there are very few countries in the world that do that. So Israel can easily claim that the ICC has no authority to handle these issues," he says.
When it comes to the settlements, the picture is different.
"It was decided when the founding charter of the ICC was written, under pressure from Arab and Muslim states, that the transfer of a population to occupied areas would be considered a war crime," Neuer says.
"For Israel, building settlements is not, of course, a war crime. If a Jew builds a house in the Old City of Jerusalem, that is a Jew who is returning to the homeland of his forefathers in accordance with the principles of the Balfour Declaration."
"On the other hand, the UN now sees any Jew living beyond the Green Line, even in the Jewish Quarter of Jerusalem, as committing a war crime. There is no differentiation between Gush Etzion, Psagot, or Hebron. According to the UN, the settlements are a war crime. Israel and its courts do not see them as a war crime. Therefore, it will be difficult for Israel to argue that its legal system can investigate this matter. Here, the ICC can say, 'If you don't intend to investigate, we will.'"
In effect, the ICC judges are being asked to make a political ruling about the status of Judea and Samaria, and east Jerusalem.
"They will say they are dealing with a legal issue, but of course, if we look at the wider picture, what is happening is that since 1967 the international community has found different ways of criminalizing Israel. It didn't happen in a single day. Gradually, a [legal] infrastructure arose that decided that Jews living in their ancestral homeland are war criminals according to law. This process occurred through UN resolutions and declarations of policy from the European Union, like the recent decision about labeling settlement goods.
"These positions turned into tools that are presented as international law, particularly UN Security Council Resolution 2334 of December 2016, which declared that the settlements were illegal. [Then-US President] Obama not only did not prevent it from passing, he encouraged it to be adopted. Its goal was to say that any Jew living over the Green Line is an occupier, even in east Jerusalem. So according to the UN and the ICC, Israel is in violation of international law."
Rights in Jerusalem and Hebron
In Neuer's opinion, Israel can say that the advancement of this international view is based on a political agenda.
"Take the case of the EU. Its stance on Israeli settlements does not hold for other similar situations. Turkey occupies northern Cyprus – there are settlements there, an obvious population transfer, and the EU is not only not responding, but also giving money to the residents of Cyprus. In other words, Israel is treated differently. It's obvious that the UN has a double standard when it comes to Israel. But we have higher expectations of the EU itself, since it is not an organization that represents dictatorships, like the UN Security Council.
"The EU is made up of democracies, and yet it still has a double standard when it comes to Israel. When I ask European diplomats why they vote against Israel in the UN General Assembly, they answer that it's because they care about international law and universal human rights. So why don't they bring a resolution about the Turkish occupation of Cyprus to a vote, or the Moroccan occupation of the Western Sahara? The EU has no problem with this. The Turkish settlers in northern Cyprus are eligible for support from the EU, so why aren't they [the EU] giving money to Jewish settlers? They claim that they care about occupied territory, but the truth is – they don't. It's just a weapon developed over the past 50 years to attack the Jewish state."
Q: In effect, there are two contradictory international laws: the historic one, based on the Balfour Declaration, which gives Jews the right to settle the Land of Israel, and the one invented in the past 50 years with the goal of erasing the existing international law.
"Indeed. It's important to understand that the Balfour Declaration was not a strong-arm move by one government. It was the British Empire, which the time controlled a quarter of the world's territory. The Allies who won World War I worked together, and the declaration was ratified at the San Remo conference and became a mandate from the League of Nations that recognized the Jews' historic rights to the Land of Israel. It didn't pertain to just Tel Aviv, but also to Jerusalem, Hebron, and the biblical places that make up the heart of the Jews' historic homeland.
"We know that anti-Semitism changes its face. The current mutation of Jew-hatred is expressed in the Christian West and Muslim world's obsession with Israel. The claims against the Jews today rest on human rights, the war on racism and international law. Israel is accused of being a racist state, and the talk about occupation and the territories uses terminology that was used about the Nazis. The Nazis occupied, Israel occupies. The Nazis committed genocide, Israel is committing genocide. We are witnessing a grab of specific terminology that dehumanizes and delegitimizes Israel and the Jewish people."
Q: Do you see a scenario in which the ICC judges go back to the prosecutor and tell her the court has no authority to try the matter?
"Objectively speaking, there is no such state as 'Palestine.' [PA President] Mahmoud Abbas talks about it, and then he says he wants to hand the keys back to Israel. I've never heard any other entity say it’s a state, but that 'tomorrow we'll give up our nation.' It's absurd. Abbas had no control over the Gaza Strip or large parts of Judea and Samaria, which under the Oslo Accords are still under Israeli control. And if he does control Gaza, he should be tried for war crimes because of the rocket fire on Israel from there. But the decision the judges make will be a political one, no doubt influenced by political factors. We know that the UN decided that Palestine is a state. So it's unlikely that they [the ICC] will make a decision that goes against that of the UN."
Q: So in terms of international law, does Palestine have national status, or not?
"The UN has declared Palestine a non-member state. It doesn't have the right to vote, like Israel or more than 190 other countries do. The moment they were recognized as a state they appealed to the ICC in The Hague and announced they wanted to give the ICC the authority to try war crimes committed by Israel in their territory. Thus far, the court has treated Palestine as a state. Therefore it started a preliminary investigation, and I expect they will decide that they have the authority to handle the matter."
Q: How can Israel fight that?
"By being sure of itself, its past, by creating alliances with different players in the international arena – Western countries and non-Western countries. And there is also the battle in the legal sphere. As part of its broader struggle, Israel has racked up plenty of achievements in the non-Western world. Israel's ties to non-Western nations, including some in the Middle East, have improved. On the other hand, its relations with the West have grown worse.
"Israel is facing a tough battle for the legitimacy of its historical narrative. Israeli leaders' declarations about their intention to annex certain areas don't help much when it comes to The Hague's investigation of the settlements. The battle should be waged through a combination of professional legal experts and political leadership, whose statements can have an adverse effect of the court. A conflict with the court is inevitable."
Q: The ICC itself has a serious problem with legitimacy. Two major world powers, the US and Russia, don't recognize it. A few African countries, including South Africa, have left it. Most Asian nations aren't members, not to mention the Arab world. Could a conflict with Israel further weaken its legitimacy?
"Thus far, the court has dealt with many war crimes in Africa. It would be very simple to attack Israel now, and it would make a lot of countries happy, especially Muslim ones. The question is what price they will pay for ... It's fairly clear that it would enrage the US. Incidentally, it's interesting that there was a preliminary investigation into alleged US war crimes in Afghanistan. The US announced it would not allow the ICC into its territory. Shortly thereafter, the investigation was dropped.
"If the judges in The Hague decide to take further steps against Israel, they will lose a certain degree of legitimacy among certain governments. But beyond that, in Europe – where members of legal academia would be happy to persecute Israel – and among the world's legal elite, they will win support. Maybe a few experts will recognize the absurdity of a court that is supposed to deal with the horrors that the worst dictatorships in the world perpetrate persecuting a democracy with a legal system that has authority, one that is involved in a conflict but still fights better than any other country in the world, as American and British generals have testified. There is no army in the world that operates as carefully as the IDF in identical conflicts. But a lot of people in the world don't see how absurd this is."
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