Israeli-Palestinian Conflict

Sen. Schumer's call for Israeli Prime Minister Netanyahu to be pushed out of office is an unprecedented attack on a democratic ally at war and would turn Israel into an American colony.

A new proposal for the future of Gaza urges formation of an International Trust for Gaza Reconstruction. 

The chief prosecutor of the International Criminal Court (ICC),[1] Karim A. A. Khan,[2] faces several challenging policy issues in the months ahead regarding the Israel-Hamas situation.[3] In this comment I examine three of those issues. I. Role of the Prosecutor Prosecutor Khan made two particularly important public statements about the Israel-Hamas situation following October 7, 2023. The first was an address he delivered in Cairo on October 29, 2023, the text of which was published in The Guardian on November 10, 2023.[4] Khan’s address in Cairo immediately followed his visit to the Rafah crossing at the border between Gaza and Egypt. Khan was quite expansive in Cairo about the obligations of the contentious parties and how they can be held responsible under the Rome Statute. His remarks were aimed at both Israel and the State of Palestine (Palestine), including Hamas. Khan’s second statement occurred on November 17, 2023, in The Hague when he announced the referral by five ICC States Parties of the Israel-Hamas situation to the ICC.[5] These are the same countries (South Africa, Bangladesh, Bolivia, Comoros and Djibouti) that filed a case[6] under the Genocide Convention[7] before the International Court of Justice on December 29, 2023, seeking to hold Israel accountable under that Convention and requesting provisional measures against Israel. In his statement, Khan confirmed that he was extending his investigation (initially commenced on March 3, 2021 concerning “acts committed since June 13, 2014 in Gaza and the West Bank, including East Jerusalem, which would constitute crimes under the Rome Statute.”) “to the escalation of hostilities and violence since the attacks of October 7, 2023. In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and by nationals of such a State.” He called “on all States Parties to the Rome Statute to provide us with the resources we need to enable us to effectively fulfill our mandate for all situations we examine.” In my view, Khan need not and should not say more publicly other than cryptic confirmations that his investigations continue. He needs to build trust among a wide range of governments, many of which are non-party States of the Rome Statute, such as Israel, the United States, Turkey, most Arab countries, and influential nations like China, Russia, India, Pakistan, Iran, Iraq, and Indonesia. These countries need to understand that his office is investigating objectively, with no political agenda, and that those investigations will proceed under the auspices of a Court that they have not joined. That trust will be attained with communications in private and diplomatic channels. There will be more than enough to say publicly in the event the ICC issues arrest warrants in this situation. Further, Khan likely is reaching out to several non-party States, particularly the United States and Israel, for cooperation in the collection of evidence, including from intelligence sources. In his statement of November 17, 2023, he missed the opportunity to highlight the importance of cooperation from non-party States, particularly those with unique capabilities. He nonetheless should explore those opportunities quietly and diplomatically with such countries. Since the United States is cooperating with Khan on the provision of intelligence relating to the Russia-Ukraine war (fought between two non-party States of the Rome Statute), there will be protests of double standards unless Washington acts in a similar fashion regarding the Israel-Hamas war (fought between Hamas, part of one State Party, the State of Palestine, and one non-party State, Israel).[8] The best way for Khan to address that politically sensitive issue with the United States will be to do so discreetly and tactfully in the months ahead. II. Article 18 Notification Khan may have acted already in this respect, but just to check the box: Pursuant to Article 18 of the Rome Statute, the Prosecutor presumably has notified Israel, in particular, of the investigation now underway regarding the Israel-Hamas situation.[9] That is an important notification as it should incentivize Israel to demonstrate that it is investigating, for example, claims of war crimes allegedly committed by the Israel Defense Forces (IDF) and the Israeli political leadership as well as public statements by government and military officials allegedly inciting genocide. Khan should privately encourage Israeli officials to undertake a comprehensive domestic investigation of Israeli actions. Granted, this will be a difficult step for Israel whose population is traumatized by the October 7 intervention and atrocities by Hamas militants.[10] Most Israelis at this point will have little tolerance for self-reflection about the conduct of the IDF.[11] But everyone will need to recognize the important role for the rule of law being followed by all actors. While under Article 18(3) of the Rome Statute the Israeli investigation would be “open to review by the Prosecutor six months after the date of deferral,” if the Israeli investigation is being undertaken in good faith and diligently, then Khan should use his discretion under his own “review” to extend the period of time that Israel would continue to conduct its domestic investigation prior to continuing his own full-scale investigation. This would conform with principles of complementarity under the Rome Statute. Khan also presumably has delivered an Article 18 notification to the State of Palestine, whether that means to officials of the Palestinian Authority or the Palestine Liberation Organization. Such notification might prove pro forma as the judicial system in Palestine likely would struggle with any widescale investigation.[12] However implausible the procedure, nothing prevents officials of Palestine seeking foreign assistance, including even from Israel, to investigate the actions by Hamas on Israeli territory on October 7 and in the use of human shields during the combat in Gaza, the taking and holding of hostages in Gaza following the October 7 assault, and the commission of any other war crimes under the Rome Statute. All of these acts presumably will be under investigation by Khan, so Palestine has the choice whether or not to weigh in with its own investigations of Hamas’s conduct. Palestine should be as mindful of complementarity, and the risks of ignoring it, as any other State Party of the Rome Statute. III. Negotiated Settlement Khan and his staff should be strategizing how he will navigate any evolving diplomacy for a negotiated settlement among Israel and Palestinian representatives (however composed among the Palestinian Authority, Palestine Liberation Organization, and/or Hamas) and major foreign players such as the United States, key Arab states, the European Union, and the United Nations. Every party to those talks, other than probably Israel as long as Israeli Prime Minister Benjamin Netanyahu remains in power,[13] will insist on the two-state solution[14] as a major objective. What will be the fate of international criminal justice in such talks? There might be strong pressures to keep justice issues completely separate from the diplomatic talks. Given the allegations and disinformation swirling around October 7 and the aftermath, it might prove very problematic how justice would even be discussed among the negotiators.[15] Isolating accountability for atrocity crimes from peace objectives would leave Khan free to pursue his investigation and uphold the prospect of ICC arrest warrants. Such segregation of justice from peace, however, may prove implausible, as the two goals of peace and justice seem destined to become intertwined given the way atrocity crimes presently dominate the situation both on the ground and in international courts, namely the ICC and the ICJ. But if the segregation of peace from justice is the chosen path, then Khan simply could plod his way through investigations and ultimately persuade the Pre-Trial Chamber of the ICC to approve arrest warrants, and then let the chips fall where they may. The more likely prospect is that justice will be factored into negotiations that center on permanently ending hostilities and forging a two-state solution. The victim populations of atrocity crimes will expect justice to be addressed in the talks and doubtless will protest strongly the absence of accountability in the settlement. But the negotiations will compel tough decisions on modifying perfect justice with imperfect justice (or none at all) in order to reach the two-state solution. Khan may choose to engage with the negotiators in order to preserve the ICC’s equities. It would not be surprising if one or more of the following options arise during the talks: First, Israel and Palestine could agree, upon normalization of relations, to enter into a non-surrender agreement described by Article 98(2) of the Rome Statute whereby neither country would surrender an individual under an ICC arrest warrant to the ICC without gaining the consent of the “sending State” of that individual.[16] Such an agreement would not be so different from probable realities. As a non-party State, Israel would not want to surrender anyone, and particularly not an Israeli citizen, to the ICC. Palestine would want to avoid the surrender of any individual (most likely from Hamas) within Palestine to the control of the ICC. While such an agreement would impair the ICC’s power to prosecute alleged perpetrators of atrocity crimes in the Israel-Hamas situation, the Article 98(2) non-surrender agreement could become a compelling means in the negotiations to essentially take the ICC off the table and focus on the two-state solution. Nothing would prevent ultimately bringing Hamas leaders to justice in Israel if captured and brought to Israel to stand trial in Israeli courts. Israel, almost certainly, would never immunize them from possible prosecution, particularly for the atrocity crimes perpetrated by Hamas on October 7. In a conditional reciprocal fashion, future Palestinian courts might try to prosecute Israeli citizens for actions taken prior to the peace agreement unless explicitly deprived of that power in the peace agreement as a pre-condition to Israeli recognition of the State of Palestine. These would be difficult trade-offs to negotiate, but they need not necessarily implicate Khan and the ICC as these issues focus on justice rendered by national courts (Israel or Palestine) and not the ICC. But Khan should factor in any such developments in his review of complementarity efforts, if any, by prosecutors and courts in Israel and Palestine. Finally, the negotiations for the end of hostilities and implementation of the two-state solution could raise the prospect of the UN Security Council acting in a manner consistent with the objective set forth in Article 16 of the Statute, namely that: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of twelve months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.[17] Israel and Palestine may find this option attractive during the negotiations so as to shelve the ICC for at least one year, perhaps more, if that would mean achieving a permanent end to hostilities and the co-existence of two nations—Israel and Palestine—engaged in normalized diplomatic relations. The prospect of constructive negotiations leading to promises of international financing to rebuild Gaza and to strengthen the economy of Palestine could be a tempting objective that negotiators would be willing to prioritize over speedily achieving criminal justice of leading individual perpetrators of atrocity crimes. In order to reach a final peace settlement enshrining the two-state solution, the five permanent members of the Security Council might find common cause in adopting a Chapter VII resolution (with sufficient non-permanent member votes) that prevents the ICC from continuing its investigation or prosecution of atrocity crimes in the Israel-Hamas situation under the terms of Article 16 of the Rome Statute. Russia and China might see political value in shielding Hamas officials from ICC scrutiny, and the United States, United Kingdom, and France might see equal political value in shielding Israeli officials from ICC investigation. Khan will need to keep a very keen eye on negotiations that may unfold in the coming months and weigh to what extent he should personally intervene at any point during those negotiations to respond to proposals pertaining to Article 16 or Article 98(2) or other provisions of the Rome Statute. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy. Endnotes ^ “International Criminal Court,” International Criminal Court, accessed February 7, 2024, https://www.icc-cpi.int/.  ^ “Karim A. A. Khan KC,” International Criminal Court, accessed February 7, 2024, https://www.icc-cpi.int/about/otp/who-s-who/karim-khan.  ^ Vusi Madonsela, letter to International Criminal Court Prosecutor Karim A. A. Khan KC, November 17, 2023, https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral-Palestine-Final-17-November-2023.pdf.  ^ Karim A. A. Khan, “We Are Witnessing a Pandemic of Inhumanity: To Halt the Spread, We Must Cling To the Law,” The Guardian, November 10, 2023, https://www.theguardian.com/commentisfree/2023/nov/10/law-israel-hamas-international-criminal-court-icc.  ^ “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan KC, on the Situation in the State of Palestine: Receipt of a Referral From Five States Parties,” International Criminal Court, November 17, 2023, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine.  ^ “The Republic of South Africa Institutes Proceedings Against the State of Israel and Requests the Court to Indicate Provisional Measures,” International Court of Justice, December 29, 2023, https://www.icj-cij.org/sites/default/files/case-related/192/192-20231229-pre-01-00-en.pdf. ^ “Convention on the Prevention and Punishment of the Crime of Genocide,” conclusion date: December 9, 1948, United Nations Treaty Series, registration no. I-1021, https://iccforum.com/genocide-convention.  ^ “The Republic of South Africa Institutes Proceedings,” International Court of Justice. ^ “Rome Statute of the International Criminal Court,” opened for signature July 17, 1998, UN Doc. A/CONF.183/9, Art. 18, https://iccforum.com/rome-statute. ^ Noa Limone, “‘A Multilayered Trauma Is Affecting Israelis in the Wake of October 7,’” Haaretz, December 2, 2023, https://www.haaretz.com/israel-news/2023-12-02/ty-article-magazine/.highlight/there-is-a-multilayered-trauma-taking-place-in-the-wake-of-october-7-its-infectious/0000018c-2774-d04a-af9f-f7f6ddf30000.  ^ “Widening Mideast Crisis: Blast That Killed About Twenty Soldiers Linked to Israeli Effort to Create Gaza Buffer Zone,” The New York Times, last updated January 24, 2024, https://www.nytimes.com/live/2024/01/23/world/israel-hamas-gaza-news.  ^ “Judicial Systems in Member States - Palestine,” Euro-Arab Judicial Training Network, accessed February 7, 2024, https://www.eajtn.com/judicial-systems/palestine/. ^ “Widening Mideast Crisis: U.S. Official Heads to Middle East for Talks on Hostages,” The New York Times, last updated February 6, 2024, https://www.nytimes.com/live/2024/01/21/world/israel-hamas-gaza-news-iraq#netanyahu-rebuffs-biden-again-on-the-idea-of-creating-a-palestinian-state. ^ “Israel-Palestinian Conflict: What Is the Two-State Solution and What Are the Obstacles?” Reuters, January 26, 2024, https://www.reuters.com/world/middle-east/what-is-two-state-solution-israel-palestinian-conflict-2024-01-25/.  ^ Elizabeth Dwoskin, “Growing Oct. 7 ‘Truther’ Groups Say Hamas Massacre Was a False Flag,” The Washington Post, January 21, 2024, https://www.washingtonpost.com/technology/2024/01/21/hamas-attack-october-7-conspiracy-israel/.  ^ “Rome Statute,” Art. 98. ^ “Rome Statute,” Art. 16.

News reports that Hamas will agree to the "two-state solution" actually show an effort to protect Hamas and improve its political standing.

The war in Gaza has focused attention once again on the search for solutions to the Israeli-Palestinian conflict. The solution favored by the United States, the European Union, most of the world’s democracies, and the United Nations has long been the two-state solution. This formula calls for two states, Israel and Palestine, living side by side peacefully with security for both. But would the Palestinian state be a democracy? That does not seem to be a widely shared objective. The first Oslo agreement [PDF] in 1993 called for Palestinian self-government in its Declaration of Principles and mentioned democracy in its article on elections, saying that “[in] order that the Palestinian people in the West Bank and Gaza Strip may govern themselves according to democratic principles, direct, free and general political elections will be held.” What are the “democratic principles” in question? Do they include freedom of speech and press, an independent judiciary, and protection of human rights? There were no answers. In seventeen articles and four annexes, that was the only mention of the term “democracy,” and even there it was more an aside than a fundamental objective. At the White House signing ceremony in September 1993, President Bill Clinton said “the security of the Israeli people will be reconciled with the hopes of the Palestinian people,” but said nothing about whether those hopes included democracy. Yasser Arafat won the Nobel Peace Prize for his role in the Oslo Accords, but his Nobel lecture in 1994 did not mention democracy. Instead, he talked only of peace. Oslo II, in 1995, said more. It called for “direct, free and general political elections…in order that the Palestinian people in the West Bank, Jerusalem and the Gaza Strip may democratically elect accountable representatives.” Its preamble went on to say that “these elections will constitute a significant interim preparatory step toward the realization of the legitimate rights of the Palestinian people and their just requirements and will provide a democratic basis for the establishment of Palestinian institutions.” In Oslo II’s thirty-one articles there is one other related statement, an article on human rights and the rule of law [PDF] that states that Israel and the newly created Palestinian Council (a legislative body) “shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally accepted norms and principles of human rights and the rule of law.” It is fair to say, then, that while little was said by the principal actors about democracy and human rights, the concepts were embedded in the Oslo Accords. But they were soon ignored and abandoned by the signatories—and by the international community. The 1996 Palestinian elections saw Arafat win 90 percent of the vote. This could explain why Arafat was willing to promise elections, but even so, that was the last election (parliamentary or presidential) that he permitted. Subsequently, the pledges of respect for human rights and the rule of law were entirely abandoned. The December 1996 report by Amnesty International on human rights in the Palestinian territories was entitled “Palestinian Authority: Prolonged political detention, torture and unfair trials.” The report’s conclusion is worth quoting because it describes a situation that still exists today: The world desire for peace in the Middle East has led to an international readiness to subordinate human rights concerns to the pursuit of peace and an unwillingness by many countries to raise human rights violations committed whether by Israel or by the Palestinian Authority. The overriding importance given in the peace agreements to security issues has almost inevitably meant that human rights are not a priority for either side; the prolonged detention or summary trials of those opposed to the peace process are accepted as necessary for peace; the Palestinian Authority’s adherence to even basic human rights standards is of far less importance. The most recent Amnesty report (2023–24), almost thirty years later, shows that little has changed: Palestinian authorities in the West Bank and the Gaza Strip continued to heavily restrict freedom of expression, association and assembly. They also held scores of people in arbitrary detention and subjected many to torture and other ill treatment. Justice for serious human rights violations remained elusive....Palestinian authorities failed to hold parliamentary and presidential elections that had been delayed again by President Abbas in 2021. The last elections for the Palestinian Legislative Council were in 2006. President Abbas continued to rule by decree amid popular discontent. The failure to hold scheduled presidential or parliamentary elections in eighteen years is no secret, nor are the human rights abuses. But as Amnesty said in 1996, little attention is being paid. In December 2022, EU Foreign Minister Josep Borrell declared that The two-state solution remains the best way of bringing lasting peace, stability and equal rights to both people. . . . Our message to the incoming Israeli government, which we hope will confirm the country’s full commitment to the shared values of democracy and rule of law, and with which we hope to engage in serious conversation on the conflict and the need to re-open the political horizon for the Palestinian population. Democracy and the rule of law seem to be for Israelis; the “equal rights” of the Palestinian people mean national self-determination rather than true democratic structures. Palestine might be free, but there is no commitment to assuring that Palestinians will be. For the United States, the goal of the peace process has been to bring the Israeli-Palestinian conflict to an end by having two states living side by side with peace and security. Internal political arrangements for the Palestinians were secondary—if they mattered at all. Yasser Arafat was the Palestinian leader with whom the United States dealt from the Oslo years until his death in 2004; since 2005, the Palestinian president has been Mahmoud Abbas, although he lost control of the Gaza Strip in 2007. Both men ran the Palestinian Authority (PA) as a corrupt fiefdom without respect for democracy and human rights, yet the United States supplied the PA under their rule with hundreds of millions of dollars in economic assistance. There was one exception: in his last years, Arafat was heavily criticized by the United States for his corruption and especially his support for terrorism, which, after September 11 and during the global war on terror, the George W. Bush administration viewed as intolerable. Trying to push Arafat aside in 2002, Bush called on Palestinians “to build a practicing democracy, based on tolerance and liberty.” That goal was reprised in Donald Trump’s peace plan in 2020 [PDF], which said “the region cannot absorb…another state not committed to human rights or the rule of law,” and called for a Palestinian “governing system with a constitution or another system for establishing the rule of law that provides for freedom of press, free and fair elections, respect for human rights for its citizens, protections for religious freedom…and an independent judiciary.” But that plan never got off the ground and did not affect U.S. relations with the Palestinian Authority. Except for that brief period under Bush when serious efforts were made to promote free elections and respect for human rights in the West Bank and Gaza, the United States has been content to deal with the existing Palestinian Authority since the Oslo Accords. The foreign policy goal remained Palestinian statehood—independence and sovereignty—not Palestinian democracy. In President Barack Obama’s famous Cairo University speech in 2009, he noted “the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own.” Not a word about democracy. In 2013 he spoke in Israel, where he called for “two states for two peoples,” and said “the only way for Israel to endure and thrive as a Jewish and democratic state is through the realization of an independent and viable Palestine.” Again, democracy appeared to be for Israelis only. In January 2024, both Secretary of State Antony Blinken and National Security Advisor Jake Sullivan spoke in Davos at the World Economic Forum, and neither mentioned democracy when discussing the two-state solution. Blinken spoke at length with New York Times columnist Thomas Friedman about the two-state solution and called for “a stronger, reformed Palestinian Authority that can more effectively deliver for its own people,” saying: We’re talking about …. a governance, a government, and a structure of governance that maximizes the ability of the authority to actually deliver what the Palestinian people want and need….the Palestinians are looking very hard at how they can come up with a more effective governance that can actually deliver what the people want. Some of what needs to be delivered is the basic – the basic function of government, services, no corruption, transparency in the way government is pursued. That neglect of human rights and democracy as part of the two-state solution is shared by the government of Israel. For Israel, the main goals with respect to its Arab neighbors and any new Palestinian entity are security and the recognition of Israel. Internal arrangements among Arabs are, for most Israelis, not their concern. Indeed, many Israelis have long thought that order and security would be more easily maintained by a strong hand. As Israeli leader and former Soviet “refusenik” Natan Sharansky put it recently, “30 years ago, after the Oslo Accords…the free world chose to install Yasser Arafat as dictator over the Palestinian people. At the time, Arafat’s absolute power and corruption were considered advantages: The absence of a judiciary and civil society as a check would allow him to stamp out Hamas with an iron fist.” That was certainly the view of then-Prime Minister Yitzhak Rabin in 1993, when he complained about interference [PDF] with Israeli Defense Forces (IDF) conduct in the West Bank by the Israeli courts, the human rights organization B’Tselem, and protest groups, and suggested that Arafat would manage things more easily. “If the Palestinians become partner to an agreement,” he said, “they will manage their internal affairs without a High Court of Justice, without B’Tselem, and without various organizations of mothers and fathers.” As Sharansky summed it up in 2000, “Israel and the West are too quick to rely on strong leaders for stability. Democracies often prefer to deal with dictators who have full control.” This is also true, unsurprisingly, for the Arab states. None are democracies, and none are insisting that a Palestinian state must be one. Today the United States and the EU are pressing hard for the two-state solution. EU Foreign Minister Borrell said in January that the Israelis and Palestinians “are too opposed to be able to reach an agreement autonomously. If everyone is in favor of this solution, the international community will have to impose it.” The question that Western governments are not answering clearly, however, is what sort of state that new Palestinian state would be. Would recognition be denied until international standards of respect for human rights are met? Until the deep human rights problems mentioned by Amnesty are solved or at least addressed? Freedom House says of the West Bank that “the PA governs in an authoritarian manner, engaging in repression against journalists and activists who present critical views on its rule” and notes that the PA “has no functioning legislature.” Moreover, “news media are generally not free in the West Bank” and “human rights organizations have accused the PA of monitoring social media posts and detaining users for harsh questioning over their comments.” Will any of that change? Do the governments insisting on establishment of a Palestinian state care? There is an additional problem that is very rarely discussed. In the last Palestinian parliamentary elections, in 2006, Hamas won a 44–41 percent plurality over the ruling Fatah party. Today, since the October 7 Hamas onslaught against Israel, Hamas’s popularity has risen greatly. What if an election is held and Hamas—or a successor or proxy party—wins? Will candidates, groups, or parties that are not committed to “two states living side by side in peace and security,” but are instead dedicated to elimination of the state of Israel, be permitted to run? What about candidates, groups, or parties that are not committed to democracy, or to full respect for human rights? Must the new Palestinian state be a democratic state committed to peace? If the governments insisting now on a two-state solution have answers to these questions, they are not supplying them. Arab states and the United Nations are calling for “irreversible” steps toward a Palestinian state—which suggests that the absence of democracy or respect for human rights in such a state are a low priority. And in February 2024, Secretary of State Blinken stated U.S. support for a “time-bound, irreversible path to a Palestinian state.” The time for this debate about the nature of any Palestinian state is now, not when it is too late to insist on basic principles and practices. That is surely one of the lessons of Oslo, when most (and at times, all) Western and Arab governments and the government of Israel simply abandoned Palestinian democracy and watched as the West Bank and Gaza both came under autocratic rule and human rights guarantees disappeared. It remains to be seen whether the lessons have been learned. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.