Going Back to the ICC: Will UNSC 2334 Strip Israel of Triumphalism?

United Nations Security Council meeting in New York. (Photo: Anadolu Agency, via MEMO)

By Iqbal Jassat

Following the hysterical tantrums of Israel’s right wing regime on the outcome of UNSC Resolution 2334, much has been written and discussed by various commentators about its wider implications.

Having followed this story quite keenly, I’ve attempted to comprehend the arguments provided from a number of different perspectives. While the narratives may differ from the official position as enunciated by Benjamin Netanyahu whereby he lambasted the Obama administration and John Kerry in particular, a common denominator amongst analysts being that settlements are illegal and do not enjoy support of the international community.

Of particular interest is the analysis provided by Vijay Prashad in an article published by The Hindu. He explains why he believes Israel’s reaction has been over the top and attributes it to fear. Fear? Sounds absurd that a regime regarded as the 4th most powerful militarily and a nuke power nogal, would be afraid of this resolution?

According to Prashad, “The UN resolution — important as it is in itself — is not what Israel fears. What troubles Tel Aviv are the steps that would come after this resolution, particularly from the International Criminal Court (ICC).”

He reminds us that in January 2015, the ICC’s Prosecutor Fatou Bensouda opened a preliminary investigation into Israel’s actions during the 2014 bombing of Gaza and into the illegal settlements. Ms. Bensouda has since made it clear that she would not move forward to a full criminal investigation without substantial political clarity from the UN Security Council.

“Resolution 2334 produces the political will for such a move by the ICC. With Palestine as a recognized state in the UN as of 2012, and as a member of the ICC since 2014, and with this resolution now in force, the ICC could move in the next few months to a rigorous investigation of Israeli criminality. This would threaten the settlers in the West Bank and East Jerusalem, but it would also pressure Israeli soldiers to refuse to serve in any future criminal bombardment of Gaza. Whether the Palestinian leadership has the courage to insist on this remains to be seen” explains Prashad.

In 1967, Israel seized the West Bank, East Jerusalem and the Gaza Strip — parts of Palestine that had been outside its control. The UN Security Council passed a series of resolutions (242, 252, 298) within the next decade, asking Israel to withdraw from this land and — in resolution 446 (1979) — to desist from building settlements on the occupied territory. The U.S., which had already become the shield for Israel, abstained from the major resolutions.

Prashad further explains it was on this occupied territory that it was then assumed — against Israeli opinion — that a Palestinian state would be built. The two-state solution, the international consensus for the Israel-Palestine conflict, is premised on Israeli withdrawal from this land occupied in 1967. No wonder that the UN has periodically returned to censure Israel for its ongoing occupation and — in violation of the Fourth Geneva Convention — the construction of settlements on occupied land.

The fiery rebuke by Netanyahu is an indication that as in the past, Israel will dig its heels and continue expanding settlements without regard for global opinions. However, this public act of defiance and contempt for international conventions, hides the deep seated fear of criminal prosecution. In dealing with this element of criminality, Prashad retraces the period when myth making was the order of the day.

“The Oslo Accords (1994) put in place the possibility of a Palestinian state, although it did not have an explicit statement to end settlement activity. Israel continues to eat into the potential Palestinian state. Neither does Israel want a two-state solution nor a one-state solution. This negative approach to the ‘peace process’ means that Israel is committed to a permanent occupation of the Palestinians. It continues to harbour dreams of a Greater Israel (Eretz Israel).”

Prashad points out that four years after Oslo, the international community passed the Rome Statute for the establishment of the ICC.

“It was this new development — the ICC — rather than the Oslo Accords that increased the vetoes exercised by the U.S. in the UN Security Council to protect Israel. The Israeli establishment worried that the ICC would legitimately turn its gaze on issues such as population transfer and war crimes. The ICC — under pressure to investigate crimes outside the African continent — could find that Israeli actions provide a legitimate site of inquiry. The vetoes from Washington prevented any legal foundation for ICC action against Israel.”

Israel is acutely aware about Prosecutor Bensouda’s investigators visit to the West Bank and East Jerusalem in October 2016. Though the ICC said that this was not part of its preliminary investigation, it is hard to imagine that this is true. The new UN Security Council resolution harkens back to more radical postures from it in 1979 and 1980 as well as to the International Court of Justice’s 2014 finding that the ‘apartheid’ wall that entraps the West Bank is illegal. Pressure will mount on her to take her investigation forward.

– Iqbal Jassat is an acclaimed writer, analyst and commentator and one of the founder members of MRN. His analysis is featured regularly in mainstream and alternate media outlets around the world.

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