The ICC Palestine decision: Future challenges

By Alexander Knoops

Professor, Politics of International Law, University of Amsterdam

In its February 5, 2021 decision,  the International Criminal Court Pre-Trial Chamber assumes territorial jurisdiction in the situation of Palestine, while ruling that this extends to the territories occupied by Israel since 1967. This ruling reflects two fundamental questions: The first being whether the ICC is constitutionally competent to determine matters of statehood, and the second, whether the Oslo Agreement and its clauses, which limit the scope of Palestinian jurisdiction, are pertinent to the determination of the ICC’s territorial jurisdiction in Palestine.

Both questions were answered in favor of accepting the ICC’s jurisdiction; yet the reasoning of the majority of the three judges is questionable from a legal perspective.

As to the first question, the Chamber abstained from ruling on the status of Palestine under public international law, especially when it concerns the principles set forth by the  Montevideo Convention, which defines the basic criteria of statehood. It is noteworthy that the Office of the Prosecutor did acknowledge in its initial request that Palestine is not a state under this convention.

Instead of applying these principles on Palestine, the Chamber held that the accession procedure under the Rome Statute with which Palestine became a state party on April 1, 2015, was sufficient to qualify as a state. It further contemplated that a determination as to whether that entity fulfilled the prerequisites of statehood under general international law is not required.

Yet, this accession procedure is only conducted at the Assembly of State Parties (ASP) and operates within the Rome Statute as a purely administrative procedure, akin to the United Nations Secretary General (UNSG). Such procedures function merely as a depositary of accession instruments. Equal to the UNSG, the ASP is not called upon to make substantive determinations when it concerns statehood under public international law. Moreover, both the ASP and the UNSG are purely political organs and do therefore not exercise independent judicial control, which is up to a court of law. Hence the approach of the ICC negates this judicial supervisory role.

Since jurisdiction is at the fundament of the criminal trial, no relaxation on the principles of statehood should be accepted, not at the least merely on the basis of non-binding instruments such as resolutions or decisions rendered by the UNGA or ASP.

As to the second question, the majority of the ICC Chamber also abstained from ascertaining whether the Oslo Agreement would have a relevant impact on the court’s jurisdiction. However, this view negates two important aspects.

 The first being that international legal instruments reveal that Palestine has never assumed exclusive possessory interest or power in the West Bank, Gaza Strip or East Jerusalem. As a matter of fact, since 1918 there has been no state able to convincingly defend an undisputed and legally sound sovereignty claim over those areas on part of any state.

The second aspect pertains to the fact that the court underestimates the legal relevance of the Oslo Process which in 1995 resulted in an interim agreement; control over the West Bank was divided between the PA and the Israeli military government under a three-region regime and did not contain a termination clause, while neither party terminated it. Its preamble even mentions that this process is “irreversible”. Notably, the Oslo Principles were embraced by several other legal instruments, such as Security Council Resolution 2334. The majority decision seems to have misapprehended that this Agreement is still binding on the Parties which should have been transpired in the decision.

The court’s reference to UN resolution 67/19,  accepting the right of the Palestinian people to self-determination, does not alter this conclusion, bearing in mind that this resolution is of a political nature. An analysis of the majority decision learns that the court did not perform its role as the principal legal gatekeeper of the rule of law.

What are the future challenges? Notwithstanding a “State” not being mentioned in the Rome Statute as having the explicit right to appeal such decision, the right to appeal can also apply to “either Party”. Several commentaries on the Rome Statute suggest that “either Party” might embrace not only the suspect and the Prosecutor, but also States. It is therefore defendable that the State of Israel is entitled to appeal this jurisdictional ruling, despite its absence at the proceedings until so far. In any event, it could, once the Prosecutor would proceed with a formal investigation, challenge the admissibility of this case in light of its own investigation into Operation “Protective Edge”. Israel still has a legal arsenal to its disposal if it wishes to challenge both the jurisdiction and admissibility of this case.

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G.G.J. Alexander Knoops is professor by special appointment of Politics of International Law at the University of Amsterdam and visiting Professor of International Criminal Law at Shandong University (Jinan, China).

Long Form Analysis: The ICC Palestine Ruling

By Eli Bar-On

DEPUTY MILITARY ADVOCATE GENERAL, IDF (2012-2015)

In the chronicles of the Israeli-Palestinian conflict, February 5, 2021 will be remembered as the day in which the Pre-Trial Chamber of the International Criminal Court (ICC) in The Hague officially paved the way to the criminalization of the conflict between Israel and the Palestinians.

In order to understand the chain of events that led to the Chamber’s decision, let us take a few steps back.

On November 29, 2012, the UN General Assembly adopted Resolution 67/19 that accorded 'Palestine' Non-Member Observer State status.

Following this resolution, the UN Office of Legal Affairs dispatched a memorandum stating that 'Palestine' would now be able to become party to any treaties that are open to ‘any State’ or ‘all States’ deposited with the Secretary-General of the UN. Using this legal opinion, the Palestinians indeed acceded to several international treaties.

On January 2015, 'Palestine' acceded to the Rome Statute, which is the foundational document of the ICC. On April 1, 2015, 'Palestine' was officially welcomed as a State Party to the Statute. 'Palestine' informed the Court that it is delegating its jurisdiction to the ICC over crimes committed on its territory or by its nationals since June 13, 2014.

Interestingly, but not coincidentally, June 13, 2014 is the day after the kidnapping and murder of three Israeli teenagers by Hamas operatives in the West Bank, an event that put in motion an escalation that eventually led to the outbreak of the Gaza war in July 2014.

In January 2015, a few days after 'Palestine’s accession to the Statute, Fatou Bensouda, the Prosecutor of the ICC decided to launch a preliminary examination of the 'Situation in Palestine' since June 13, 2014.

Almost five years later, on December 2019, the Prosecutor concluded the examination and found what she claimed was reasonable basis to proceed with an investigation into the 'Situation in Palestine', based on the belief that both Israeli forces and Hamas members committed war crimes during the 2014 Gaza hostilities. In addition, she raised suspicions that Israeli officials committed war crimes of transferring Israeli civilians into the West Bank (i.e., the Israeli settlements); and lastly, that Israeli soldiers committed crimes using lethal and non-lethal means during the disturbances near the Gaza border with Israel that began in March 2018.

The Prosecutor then asked the Chamber to make a ruling over the scope of the territorial jurisdiction of the ICC in 'Palestine', and to acknowledge its jurisdiction over the entire territory of the West Bank, including East Jerusalem, and Gaza.

While Israel, which is not a member in the ICC, decided not to take part in the proceedings in the Chamber, Israel's Attorney General Avichai Mandelblit published a highly detailed memorandum regarding the Prosecutor's reference to Chamber. The Attorney General argued that the ICC does not have the jurisdiction to hold any proceedings that emanate from 'Palestine'’s referral of jurisdiction to the Court, since 'Palestine' is not and never was a State according to the binding criteria in international law.

Resolution 67/19 of the UN General Assembly, which served as the foundation for the Palestinian accession to the Rome Statute, was only meant to administer 'Palestine'’s representation within the UN. It is a declaratory document that represents a political aspiration for a future Palestinian State, and like all UN General Assembly resolutions, it is not legally binding. The UN Secretary General at the time made clear that his act of circulating the Palestinian accession document to the Statute does not have any ramifications regarding the question of Palestinian statehood.

Mandelblit further asserted that 'Palestine' does not have effective control over the West Bank and Gaza, a crucial precondition for becoming a State. The Palestinian claim that Israel is occupying these areas only acknowledges the Palestinian lack of sovereignty. The right of Palestinians to self-determination should not be conflated with any claim to statehood, the Attorney General stressed.

If the Palestinians don't have the State sovereignty, the Attorney General contended, they can also not delegate to the ICC any jurisdiction to prosecute. There's also no 'territory of' a State (a term used in the Statute) over which the Court can exercise such a jurisdiction. The term which is frequently used in international discourse, “the occupied Palestinian territory,” is strictly political and has no legal ramifications on the question of sovereign title.

Finally, the Attorney General indicated that the Oslo Accords between the Israelis and the Palestinians manifestly stipulate that the Palestinians have no criminal jurisdiction over Area C of the West Bank, Jerusalem, and Israeli nationals  – and obviously cannot delegate to the Court a jurisdiction they do not have.

Following the Prosecutor's referral to the Chamber, the Chamber received dozens of amici curiae (friends of the court) legal opinions in support of both the Israeli and the Palestinian positions. Numerous renowned experts in international law and no less than seven countries (the Czech Republic, Austria, Australia, Hungary, Germany, Brazil, and Uganda) supported the Israeli position that the Court has no jurisdiction over the matter.

The Chamber's decision was not unanimous, but rather decided by Majority, with the Presiding Judge, Judge Kovács, writing a dissenting opinion.

The Majority opinion first reviewed the question whether 'Palestine' can be considered a 'State' for the purposes of recognizing ICC jurisdiction to prosecute crimes that were committed in its territory, and held that 'Palestine' indeed qualifies as such.

The Chamber ruled that the Statute refers to States that are Parties to the Statute and does not require a determination as to whether those 'States' fulfil the preconditions of statehood under general international law. The Majority's opinion indicates that 'Palestine' acceded to the Statute according to the customary procedure to do so and accepted the jurisdiction of the Court with respect to the crimes referred to in the Statute. Any dispute regarding their accession should have been negotiated and if not resolved, be referred to the Assembly of States Parties (only Canada rejected the Palestinian accession to the Court). 'Palestine' has been an active member in the Assembly of State Parties to the Court ever since its accession. The Chamber also contended that it would be ineffective to allow an entity to become a State Party to the Statute, but to limit the Statute’s inherent effects over it.

The bottom line is that the Chamber decided that, under these circumstances, it may not review or challenge the eligibility of 'Palestine' to accede to the Rome Statute.

The Chamber stresses that any territorial determination for the purpose of defining the Court's territorial jurisdiction for criminal purposes has no bearing on the scope of 'Palestine'’s territory. This jurisdiction is set for the sole purpose of establishing individual criminal responsibility under the Rome Statute. The Chamber underlines that it cannot decide whether an entity is a 'State' according to general international law.

After concluding that 'Palestine' is a State for the purpose of the discussion, the Majority opinion discusses the delimitation of its territory over which the ICC can exercise jurisdiction.

The Chamber notes that in Resolution 67/19, the UN General Assembly 'reaffirmed the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.’

The Majority's opinion mentions that according to the Rome Statute, the application and interpretation of the law by the Court must be consistent with internationally recognized human rights, including the right to self-determination.

Hence, the Chamber concluded that the Court’s territorial jurisdiction in the 'Situation in Palestine' extends to the territories occupied by Israel since 1967, namely the West Bank, including East Jerusalem, and Gaza.

In this regard, the Chamber stresses that it is neither making a decision on a border dispute under international law nor prejudging the question of any future borders.

The Chamber then proceeds to discuss the argument that the Palestinians could not delegate criminal jurisdiction to the ICC over Israeli nationals, Area C, or Jerusalem, since they do not have such a jurisdiction according to the Oslo Accords.

The Chamber asserts that this argument is not relevant to the scope of the Court’s territorial jurisdiction in 'Palestine'. The Rome Statute has specific arrangements to deal with any obligations of a State Party under international law that conflict with its obligations under the Statute.

Finally, the Chamber emphasizes that its conclusions relate only to the initiation of the investigation by the Prosecutor, and any interested party, including a State or a suspect, will be able to challenge issues of jurisdiction again in the future.

Yet Judge Kovács, in his dissenting opinion, says that the formal accession of 'Palestine' to the Court, and resolution 67/19 of the General Assembly, should not be read separately from other international law instruments that referred to the Oslo Accords, and that promoted peace initiatives between Israel and the Palestinians.

These include the Road Map of the Quartet, as well as many resolutions of the UN General Assembly, the Security Council, and other UN organs. The resolutions of the General Assembly are non-binding in nature, even if adopted by Majority voting. There are no binding international law instruments regarding Palestinian statehood.

The Prosecutor's request and the Majority opinion referred to non-binding documents but failed to mention that these documents also stress the necessity of establishing borders by way of internationally promoted negotiations. It is obviously premature, in Judge Kovács' opinion, to speak of a fully-fledged 'Palestinian State' and of its territory. It would be more appropriate to refer to 'Palestine' as a nascent State, recognized by some countries, whose borders still need to be negotiated, and the Oslo Accords still play a role in determining its authorities.

As to the scope of the territory in which the Prosecutor may exercise her investigative authorities, Judge Kovács contends that this should be based on the same circumstances that would allow 'Palestine', as a State Party, to assert jurisdiction over such crimes under its legal system, i.e., according to its own criminal jurisdiction in the Oslo Accords.

This means that when the Prosecutor concludes that continuing an investigation may trespass the limits of 'Palestine'’s competences in this complex criminal law regime, she should request Israel's consent.

There are many problematic issues with the Majority's opinion and they are mostly covered in Judge Kovács' opinion.

The question of whether and how an entity becomes an internationally recognized State in international law is complex and intricate. The Majority's analysis on this issue is almost technical, relying on the process of accession to the Court as the sole criterion in deciding whether 'Palestine' can be a State that can refer its jurisdiction to the ICC.

The UN Secretary General as a depositary of the Statute made it clear that he served a technical role by circulating the Palestinian accession document, and that this should not be understood as having any legal ramifications on Palestinian statehood.

He relied on a legal memorandum that referred to an option possessed by the Palestinians to accede to international treaties, emanating from the status that Resolution 67/19 accorded to them.

But there was nothing in Resolution 67/19 or the legal memorandum that leads to recognition of 'Palestine' meeting the legal standards of becoming a State according to general international law.

Nor is there a precedent in international law for the creation of a State on a territory under occupation. As Judge Kovács rightfully claims, the Majority's decision practically outsourced the judicial discretion to the UN, using Resolution 67/19 and the legal memorandum (which was meant to be an internal memo) as fait accompli acts.

The Majority did so without delving into the whole process that led to the UN Resolution and the dilemmas that surrounded it  –  which Judge Kovács did. He summarized his research as follows: "What can be deduced with absolute certainty from the text and the history of the adoption of Resolution 67/19 is that the great Majority of States represented at the General Assembly wanted to upgrade Palestine’s formal status in the UN and show political support for its endeavors by giving a political impetus, while waiting for the outcome of the initiated procedure of admission as a full member.”

And so, an array of 'technical' acts creates a situation in which 'Palestine' enjoys a status that should be reserved to sovereign States, without meeting the required standards for this to happen. This outcome does not comport with the most basic foundation on which the ICC was established, that only sovereign States that are recognized as such in international law can delegate sovereign jurisdiction to the ICC.

Another problem lies with the Majority's decision to recognize the entirety of 'the Occupied Palestinian Territories' as the territory over which the Court can exercise its jurisdiction. In doing so, the Majority relies on the right of the Palestinians to self-determination as a human right that the Court needs to apply in its rulings. It is not entirely clear why the Majority decided to use international law sources that are external to the Statute in this respect, but refused to do so while determining the first issue of 'Palestine' being a State Party to the Statute. Anyway, it is hard to understand the Majority's decision to treat the demarcation of the territory issue, one of the most controversial and sensitive issues throughout the negotiations between Israel and the Palestinians, in such a simplistic manner. As Judge Kovács' said, "to accept as determinative a unilateral statement concerning the exact demarcation of a territory that is known to be the object of a very slowly progressing and frequently suspended series of negotiations, would have required at least an explanation".

The Majority's decision to simply ignore the argument regarding the Oslo Accords and their implication on the limited jurisdiction that the Palestinians can delegate to the Court is a big flaw in its decision.

It remains unclear what the current status of the Oslo Accords is in the Majority's opinion. The Accords stood  – and still stand  – at the heart of the relationship between Israel and the Palestinian Authority. The Majority regard the argument concerning the Accords as a technical issue that might interfere with future attempts of the Prosecutor to get assistance in her investigation from the Palestinians, due to conflicting obligations they will have between the Rome Statute and the Oslo Accords.

But the core of this argument deals with the very essence of the competence to refer the jurisdiction to the Court in the first place. Judge Kovács' analysis, again, makes more legal sense and offers a way for the Prosecutor to investigate while accommodating both the Statute and the Oslo Accords.

It should also be said that the Majority's clarification, according to which any interested party will be able to challenge issues of jurisdiction again in the future, emasculates the Prosecutor's intention of taking such issues off the table in advance.

The ramifications of the decision for Israel

It is easy to understand why Israel, as the national homeland of the Jewish People, with the horrendous atrocities that befell it in World War II, was one of the main proponents of the establishment of the ICC. Unfortunately, political manipulations that dragged the Statute of the ICC away from its intended course made Israel decide not to become a State Party in the Court. Israel's concern that the Court will be weaponized for political purposes is now materializing, with the Chamber's decision to allow the Prosecutor to investigate Israel without its consent.

The Court, established as a court of last resort to prosecute the most heinous atrocities, was never meant to target democracies such as Israel. It is worrisome that Israel, as a democracy with a heritage of respect for international law, and Hamas as a terror organization that defies international law, are being assessed by the Prosecutor on an equal footing.

The Chamber's decision should not be taken lightly or disregarded by the Israeli government. Although the Chamber repeatedly emphasizes that its decision has no legal ramifications on the legal claims regarding the Palestinian statehood, there is no doubt that this decision will be cited as another landmark in the Palestinian entity’s evolution towards becoming a State.

The decision is also clearly a very concerning milestone in the ongoing campaign to delegitimize Israel. While there is still a long way to go before any indictments against Israeli officials will be submitted to the Court, the gate is now open for the Prosecutor to start her investigation against those officials and even issue warrants for their arrest.

Such warrants can be issued secretly and every State that is a member of the Court is obliged to enforce them. It is easy to imagine the drama that will shroud a surprising arrest of a senior Israeli official somewhere around the globe. Such a reality will significantly restrict the movements of many Israeli officials (it should be noted that the investigations will probably focus on political leaders and senior military officers and not on low-ranking soldiers or government officials).

The Prosecutor of the court will end her tenure in June this year. Her replacement has not been named yet. Her successor will have an independent agenda regarding the issue, for better or for worse, regarding Israel.

When considering the priorities of the Office of the Prosecutor and the way to move forward, Judge Kovács' concluding remark will surely be taken into consideration: "I am convinced that without the cooperation of the directly interested States in the present and truly complicated, over-politicized situation, the Prosecutor will have no real chance of preparing a trial-ready case or cases. This should go hand in hand with national prosecutions when needed and according to the rule on complementarity".

In this respect of complementarity (meaning, the priority that States have over the ICC to investigate and prosecute crimes committed by their nationals or in their territories), we should bear in mind that Israel has a robust system to examine and investigate violations of the Laws of Armed Conflict – a fact that was confirmed by the detailed report of Israel’s Turkel Commission that was set up to investigate the Israeli raid on the Turkish Gaza flotilla, and which reviewed Israel's investigative mechanisms.

The Prosecutor recently decided not to launch an investigation against British military personnel for alleged crimes committed in the war in Iraq. The Prosecutor satisfied herself with the existence and operation of UK's investigative mechanisms, although the British investigations did not end in criminal prosecutions. Given the robustness of Israel's mechanisms, the British example is undoubtedly a reassuring sign as far as the Prosecutor's investigation concerns the military operations of the IDF.

On the other hand, the Prosecutor's decision to investigate Israel's settlement activities in the West Bank and East Jerusalem should be a major concern for Israel. Israel never considered its settlement to be illegal, and both left-wing and right-wing governments throughout the years have invested in the promotion of this project.

Israel's Supreme Court has been scrutinizing thousands of cases regarding the settlements, dealing with complex legal issues of international, administrative and constitutional law ever since Israel seized the West Bank in 1967. But Israel has never criminally prosecuted any acts relating to the settlements because it fundamentally rejects the idea that these are illegal under international law. Thus, Israel will not be able to claim that complementarity considerations should label the settlement cases inadmissible at the Court, and it now faces a fierce legal battle in this arena. The Chamber's reference to UN Security Council Resolution 2334 that condemns the Israeli settlement activity is an ominous sign in this respect.

What should Israel do now?

Israel should launch multiple, simultaneous efforts in the diplomatic and legal spheres.

Diplomatically, Israel should remember that it is not alone in this battle. During the proceedings before the Chamber, it has gained the support of seven important States that supported its legal views before the Chamber.

After the Chamber's decision was published, the U.S. State Department and the Foreign Ministers of both Canada and Australia rejected it.

Israel should work closely with the Biden administration and coordinate responses to the Chamber's decision. The ongoing investigation against the activities of U.S. forces in Afghanistan makes Israeli and American interests (and indeed, those of all other Western democracies) in this respect very similar.

Israel should also launch an organized public diplomacy effort to engage in a dialogue with diverse influential audiences around the world and present to them its articulate legal positions.

Israeli officials should refrain from attacking the Court and its officials. Such attacks are not constructive in any way and can only antagonize Israel's friends in the world. This would be especially counter-productive at this sensitive time, in which the process of the nomination of the next Prosecutor is still ongoing.

Israel should also strive to find a way out from the current stagnation in the negotiations with the Palestinians. This stagnation has undoubtedly played a role in the motivation of the Office of the Prosecutor to push the investigation forward. It is not unreasonable to contend that ongoing negotiations can serve as a justification to stall the investigation because it will not serve the interests of justice, a legitimate consideration that can be taken into account by the Prosecutor.

Israel can also use the assistance of its new Arab friends in the region in pushing the negotiations with Palestinians forward.

Legally, Israel has to keep cultivating its own examination and investigation mechanisms and make sure they continue to enjoy their independence.

Israel should also devise plans to tackle the most challenging legal issues that might arise during the investigation, including the legal status of the settlements and the legal status of the crime that refers to them in the Statute; the legal status of the Gaza Strip after Israel withdrew from it; the legal definition of Israel's conflict with Hamas as international or non-international, and other key issues.

Lastly, Israel should also consider what kind of cooperation, if any, it wants to have with the ICC. While Israel’s reluctance to openly cooperate with the Court under such circumstances is clear, there are many more nuanced and discrete ways to engage with the Court – and some of them may carry valuable advantages.

In any case, this is no time to panic or rage. It is time to roll up sleeves and prepare for a long uphill battle. Israel is morally right. And as such it will eventually win this battle, like many before it.

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Eli Bar-On concluded his career in the Israel Defense Forces holding the position of instructor at the IDF National Defense College (the INDC). Prior to that position, Bar-on served as the Deputy Military Advocate General of the IDF (2012 to 2015), where he was in command of approximately 1,000 lawyers and legal experts, including prior to, during and following Operation Pillar of Defense & Operation Protective Edge. He also served as the Chief Legal Advisor for the IDF in the West Bank from 2009 to 2012.

Israel Should Engage With the ICC Investigators

BY David Benger

Last Friday, a three-judge panel at the International Criminal Court handed down a decision authorizing the ICC Chief Prosecutor to pursue an investigation of international crimes committed in the territory of the so-called “State of Palestine.”

The reaction from Israeli officials has been scathing. Chief among them, Prime Minister Netanyahu described the decision as “pure antisemitism,” and Minister of Strategic Affairs Michael Biton called it “a dangerous precedent.”

These reactions, though understandable, are not a reasonable response to the actual threat the ICC is likely to pose. As I wrote six years ago, Palestinian terrorists are more likely than IDF officers to be arrested and charged by ICC prosecutors.

Indeed, when the facts on the ground in the West Bank are applied to the laws that govern the ICC, it becomes apparent that should there be any charges brought by the ICC arising out of the situation in so-called “Palestine,” those charges will very likely be brought against Palestinian terrorists, not Israeli soldiers.

An ICC investigation, once launched, cannot be controlled or influenced by anyone other than the ICC professionals running the show. The fact that Palestinian officials and Palestinian-affiliated NGO’s were responsible for jumpstarting the investigation indicates nothing about how this process will go from here on out.

ICC investigators now have a mandate to investigate everything that occurred in the West Bank and Gaza since 2014.

Those who should be most frightened of the ICC now are Hamas and the Palestinian Authority, whose conduct offers up straightforward war crimes cases. Hamas, for example, stores weapons in civilian areas, routinely uses children as human shields, and indiscriminately targets Jewish civilians in Israel with acts of terror, from rocket attacks to arson.

For a more detailed analysis of Hamas’ violations of international law, read Colonel Eli Baron’s excellent analysis at the MirYam Institute, Part 1here and Part 2 here.

Meanwhile, the PA bankrolls the program colloquially known as “pay for slay,” providing financial compensation to the families of suicide bombers. These are all prosecutable crimes under the ICC charter, and should yield arrests of senior terror leadership.

Members of the Israeli military, conversely, are extremely unlikely to be prosecuted due to the IDF’s sophisticated court martial system. The International Criminal Court cannot prosecute anyone who has been investigated in good faith by a domestic criminal system (a concept known as the principle of complementarity), and so any Israelis who have been court martialed by the IDF will not face ICC prosecution.

So, why, then, have anti-Israel activists advocated so vociferously for an ICC investigation in the Palestinian territories?

There is one category of crimes which has captivated the imaginations of anti-Israel activists, chiefly because complementarity would play no role in the proceedings. The charter of the ICC criminalizes transferring, “by the Occupying Power of parts of its own civilian population into the territory it occupies.”

Certain activists believe this law can be applied to Israeli settlement activity in the West Bank. They are wrong.

First, lawyers for the State of Israel will argue that under settled principles of international law, Israel is not an occupying power. Under general principles of state formation (explained here by Avi Bell and Eugene Konotorovich), the West Bank has been a part of the State of Israel since 1948, notwithstanding Jordan’s short-lived military occupation there. Therefore, Israel is not an “occupying power” and cannot be charged with such a crime.

Second, the Israeli government’s financial subsidies for small villages in Judea and Samaria are far outside the intended scope of this prohibition. The drafters of this section of the ICC statute had in mind widespread and systematic war crimes and genocides during which large groups were moved about for the purpose of extinguishing minority sub-groups.

Indeed, an ICC investigation may be good for Israel in the long run. A thorough investigation carried out by a team of international professionals may finally alert the international community to Palestinians’ systemic and criminal violations of international law.

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David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal.

The profound consequences of the ICC’s Palestine ruling

By Geoffrey Corn

PROFESSOR OF LAW, SOUTH TEXAS COLLEGE OF LAW. US ARMY (RET.)

The International Criminal Court (ICC) Pre-Trial Chamber (PTC) issued a decision with profound potential consequences for Israel and other States, especially those that like Israel have chosen not to join the Court. The decision authorizes the Prosecutor to investigate and potentially prosecute alleged violations of the ICC Statute that occurred in what the Court characterized as Palestinian territory. This was based on a conclusion that Palestine is a ‘State Party’ to the treaty, and that Gaza, the West Bank, and East Jerusalem fall within the scope of the Court’s territorial jurisdiction as Palestinian territory. Specifically, the PTC reached the following findings:

• That Palestine is a State Party to the Statute; FINDS, by majority, Judge Kovács dissenting, 

• That, as a consequence, Palestine qualifies as ‘[t]he State on the territory of which the conduct in question occurred’ for the purposes of article 12(2)(a) of the Statute; and 

• That the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem (with one dissenting vote).

To call this decision controversial is a gross understatement. The fact that the PTC considered 43 Amicus submissions from States, scholars, and diplomats (to include one I joined and contributed to arguing against the assertion of jurisdiction) indicates there is simply no way to characterize the decision in any other terms. 

As an immediate and practical matter, the decision means that the ICC Prosecutor may seek to prosecute Israeli military and government personnel for what she determines are violations of the Statute occurring in any of the areas determined to fall within the scope of the Court’s territorial jurisdiction. Why is this controversial? First, the exercise of jurisdiction is not based on anything related to a widely accepted conclusion that Palestine is in fact a state within the meaning of international law, or that the areas treated as within its boundaries are part of the Palestinian State. Indeed, the PTC acknowledged that its decision was not an announcement that Palestine qualified as a State for any purpose beyond establishing the jurisdiction of the Court. Second, the decision allows for an assertion of jurisdiction over individuals whose State has made a reasoned and reasonable decision not to subject its nationals to the Court’s jurisdiction. 

Both of these considerations have obvious immediate consequence for Israel. Is it likely Israel would voluntarily turn over one of its nationals to the ICC based on an indictment? No. But pursuant to the treaty, all States that are Parties to the Court bear an obligation to assist the Prosecutor and the Court in enforcing its orders, to include assistance in apprehending and turning over any individual under indictment. Accordingly, any Israeli national who travels to one such State would always face the risk of apprehension by that State on behalf of the Court. Considering indictments could stem from everything from alleged war crimes during the Gaza conflict to the creation of Israeli settlements or the assertion of Israeli sovereignty over East Jerusalem the potential risk to Israeli military and civilian officials is certainly not hypothetical. 

Like Israel, the U.S. has chosen not to join the ICC. Ironically one of the principal asserted reasons was a concern that the Court may be improperly influenced by international political considerations, and as a result may abuse its authority. For many observers, this decision validates those concerns. It also highlights the very real risk that U.S. personnel may also be subjected to ‘non-consensual’ ICC jurisdiction based on the conduct of operations on the territory of a current or future State Party based on the Court’s decision to accept accession of that Party. To be fair, this has always been a risk for U.S. forces engaged in expeditionary operations in such territory. Indeed, this risk was manifested by another ICC decision authorizing the Prosecutor to investigate alleged U.S. war crimes in the territory of Afghanistan. But imposing that risk based on what many experts believe is a dubious determination of State Party status seems especially troubling.

The second aspect of the decision – the PTCs decision that Palestine qualifies as a State within the meaning of the Rome Statute, without widespread international agreement on that status –  may arguably have a more limited consequence. Indeed, the Court relied heavily on the fact that the Secretary General of the United Nations, acting in response to General Assembly resolutions, determined that the Palestinian Authority may accede/join international treaties. Perhaps more importantly, the PTC emphasized the lack of objection by existing State Parties to the treaty to the acceptance of the Palestinian accession to the treaty. Accordingly, it would seem that the opportunity for other emerging or aspiring States to place themselves under the Court’s jurisdiction would require an analogous confluence of United Nations acceptance and State Party acquiescence. This does not seem like it would be a routine occurrence.  

Indeed, the situation related to Palestine is in many ways sui generis. But it is the unusual, complicated, and unique aspects of the statehood issue that make the PTC's judgment on State Party status and territorial boundaries feel so troubling. Yes, it is true the PTC did not reach this State Party conclusion in a vacuum; relying heavily on the considerations noted above. So perhaps the conditions were already set for this outcome. But the PTC was not bound by those U.N. actions or Party State acquiescence; it was obligated to make its own assessment of the meaning of State Party within the treaty. What seems hard to dispute is that the totality of these events – the 2015 accession, the absence of State Party objection, and the PTC decision – reflects a reality that the limited jurisdiction of the ICC has expanded to now include authority over an area that has not yet reached a widely accepted international status as a State. Endorsing an interpretation of the treaty that vests the jurisdictional consequences of statehood on an entity while disavowing any impact on whether the entity is in fact a State and in so doing expose nationals of an established State to criminal liability that State chose not to accept is as controversial as the underlying situation itself. 

How far this may extend in the future to other areas of contested sovereignty is unclear. What is clear is that this approach arguably dilutes the responsibility of State Parties themselves to decide what newly evolving entities qualify as equal members of the international community and therefore may join the Court. Perhaps the PTCs citation to the lack of State Party objection to the accession was intended to send a message that the Court must accord probative value to not only State Party action but also inaction on such complicated questions. This is not an illogical method of interpreting the intent of these State Parties, and if it might generate a more direct and explicit response to the accession and the PTC decision. If so, that would be a good thing, because it will better reflect the authority of the Parties to influence the Court’s membership. 

However, even considering this inference of State Party endorsement of the Palestinian accession, it is also arguable that the decision contradicts the mechanism established by the Rome Statute for addressing situations of impunity for individuals that do not fall within the ICCs nationality or territorial jurisdiction: reliance on the U.N. Security Council to refer such a matter to the Court. While some may respond that this alternate path to jurisdiction is functionally irrelevant where Israel or the United States is concerned because of the U.S. veto power, this is the mechanism the treaty created, and just because it may rarely be invoked should not allow the Court to engage in an interpretive bypass. If anything, the Security Council referral provision reflected a State Party recognition that assertion of jurisdiction absent a nationality or territorial link to the defendant should be a difficult hurdle to leap.

The reaction to this decision, like the reflections of the many Amici and views related to the situation itself, undoubtedly range from ecstasy to despair. In truth, the real test lies ahead, and that is whether the ICC Prosecutor and the Court engage in a credible assessment of the core treaty principle of complementarity and an equally credible assessment of what does or does not qualify as a crime in violation of the treaty. On the former, countries like Israel and the United States in theory should have little concern of this expansion of ICC jurisdiction because the Court must find that the State failed to credibly exercise its primary obligation to investigate and where appropriate prosecute international law violations. That Israel and the U.S. fulfill this obligation is manifested in countless sources of evidence, to include the criminal prosecution of members of their armed forces for misconduct during hostilities that amount to war crimes. Indeed, the independence of the Israeli Military Advocate General from subordination to senior IDF commanders is considered by some to render IDF prosecutorial judgments more credible than those made by senior U.S. military commanders. The Israeli system for examining and investigating complaints and claims of violations of international humanitarian law was the subject of an exhaustive and comparative review in the second 2013 Turkel Commission report.  To the extent the “dual hat” nature of the Israeli Military Advocate General role is an issue, this common law based “attorney general”  like role meets the requirements for complementarity.  For example, Canada recently reviewed the “dual-hatted” role performed by its federal Attorney General finding it was not an impediment to an independent prosecution.  Similarly, recent decisions in both Canada (R. v. Stillman) and Australia (R. v. Cowen) have reinforced the lawfulness of military justice jurisdiction over criminal offences.” The spotlight is now on the ICC Prosecutor to demonstrate her willingness and ability to adopt an analogous recognition that this common law-based system of criminal accountability for military personnel provide for legitimate disposition of allegations and in so doing implement this complementarity principle in the true spirit of the treaty. Her pursuit of this investigation justifies legitimate skepticism.

Then there is the ultimate question of assessing whether violations of the treaty – meaning violations of international law triggering individual criminal responsibility – are indeed established by credible and admissible evidence. The complexity of this issue is profound, with equally profound second and third-order consequences. Decisions by the ICC as to what qualifies as a war crime; what qualifies as occupied territory; what qualifies as a violation of occupation obligations; what qualifies as a crime against humanity; and what qualifies as genocide have tremendous influence on how those offenses are understood by the international community. Furthermore, any accusation focused on the ‘settlements’ issue would require the Court to adjudicate the legality of one of the most complex issues of international law related to the situation the PTC authorized the Prosecutor to investigate; an issue with profound political and diplomatic consequences for multiple States involved in the efforts to reach a negotiated agreement on Palestinian statehood. 

The Court may soon find itself having to adopt an approach to adjudicating such an allegation that is analogous to the PTC approach to resolve the highly complex international legal and State status question: by simply disavowing an impact beyond criminal responsibility. But like this decision, it is impossible to ignore the reverberating impact of such trial, much less a conviction. Such international criminal adjudications also have a snowball effect, as once the Court determines a crime has occurred the ‘test’ it establishes will undoubtedly influence the assertion of jurisdiction in future cases. Ideally, if any case reaches this point the Court will render credible judgments based on established law and sufficient evidence and not be influenced by a desire to expand its reach or contribute to political agendas. Again, however, this most recent decision justifies skepticism.

Impunity for serious violations of international law, especially those falling within the scope of ICC crimes, is abhorrent and should not be tolerated by the international community. But the burden on preventing such impunity remains a function of the community of nations. The ICC is a mechanism established to contribute to that preventive goal, but is not a substitute for State responsibility and, for good or bad, was established with important limitations. Let’s hope that this decision is the beginning of a process that will reflect a credible role for the Court in this equation, and not the foretelling of an abuse of the limited role it has been entrusted with. 

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Geoffrey S. Corn is the Gary A Kuiper distinguished professor of National Security Law, at South Texas College of Law, Houston, and a retired U.S. Army Lieutenant Colonel. Read full bio here.

INTERVIEW: Israel likely to spurn Turkish overtures, says former envoy

ILAN EVYATAR INTERVIEWS ISRAEL'S FORMER AMBASSADOR TO TURKEY, DR. ALON LIEL (1981-1983)

After years of virulent anti-Israeli rhetoric, Turkish President Recep Tayyip Erdogan has been attempting for the past few months to patch up ties with Israel, as regional developments leave his regime isolated and alarm bells sound in Ankara with the Biden administration already taking a tough line on Turkey.

To discuss what’s behind Turkey’s attempted rapprochement with Israel and whether Jerusalem will respond to the overtures from Ankara, I spoke with Dr. Alon Liel, a former Israeli ambassador to the country.

“This has been going on for the past three or four months with the upgrading of Turkey’s representation to Israel, attempts to create talks over [economic] rights in territorial waters, and a very rare direct quote from Erdogan,” says Liel, referring to the Turkish president’s statement in late December that he would like to bring ties with Israel “to a better point.” 

That statement was tempered with a remark that Israel’s “merciless acts” against the Palestinians are “unacceptable”, but on the ground, Erdogan appointed the Hebrew-speaking policy wunderkind Ufuk Ulutas, as his designated ambassador to Tel Aviv, almost two years after the previous envoy was withdrawn.  

Jerusalem however has not reciprocated by upgrading its own representation to ambassadorial level. 

“Israel isn’t overly enthusiastic to say the least,'' notes Liel.

The former foreign ministry director general says Ankara and Jerusalem find themselves looking at each other in a mirror image. Turkey is isolated in the region, with tensions in its relations  with Egypt, Greece and Cyprus, not to mention issues with Europe. Israel on the other hand has compensated very well for the breakdown of relations with Turkey by creating a tripartite alliance with Ankara’s historic rivals Greece and Cyprus, and has improved relations with Egypt - all centered on the crucial issue of energy cooperation, and with strong military cooperation between Israel and Greece and Cyprus. 

While Turkey has weakened, Israel has become much stronger in the region: Its economy grown thanks to its booming hi-tech sector, while Turkey’s economy is plagued by high inflation, a big trade imbalance and a weak currency, and on the military front, Israel strikes with impunity in Syria, and does as it wishes in the region. 

“Turkey is interested but Israel doesn’t see the need,” says Liel. 

Not to mention, he adds, that there is also a lot of anger on the Israeli side with Erdogan, both for his tone over the past decade toward Jerusalem and his cozy relations with Hamas. 

Meanwhile, Israel recently signed the Abraham Accords, acquiring new regional partners - most prominently the United Arab Emirates - and  further isolating Turkey. Ankara has its own tensions with the UAE playing out across the MENA region and Israel will also have to take Abu Dhabi’s feelings into account.

“If Jerusalem were to upgrade relations with Turkey now, that would not be appreciated,” says Liel. 

While the recent reconciliation between the Gulf Cooperation Council and Qatar does give Ankara a “crack to get back in,” says Liel, if it was successful in repairing its ties with the Saudi led bloc, Turkey would “stop its flirtation with Israel.”

Meanwhile another major issue pushing Erdogan’s attempts at rapprochement is his concerns about what policy the Biden administration will adopt toward Turkey given its sensitivity to human rights issues, Turkey’s purchase of S-400 missiles from Russia that led President Donald Trump to kick its NATO ally out of the F-35 stealth fighter-jet  program, and concerns over Turkey’s aggressive posture in the Mediterranean. The thinking in Ankara is that improved ties with Israel can open doors in Washington - doors that Israel is in no hurry to open.

Turkey has also shot itself in the foot on the energy front. After investing tens of billions of dollars in becoming an energy hub leading gas from production sites in the Caspian region to consumption sites in Europe, Turkey had hoped to become a similar conduit for the huge natural gas reserves in the eastern Mediterranean, among them Israel’s Leviathan field. 

One of the things that really hit Turkey, says Liel, is the Cairo-based EastMed Gas Forum, which   includes the Palestinians, along with Italy, Greece, Cyprus and Egypt, but has left Ankara out in the cold. 

He adds that while the most economically feasible way of moving Israeli gas to Europe would be to hook up to the Trans Anatolian Natural Gas Pipeline which began moving Azerbaijani gas to Europe in 2018, that is currently unthinkable for Jerusalem, which won’t allow Turkey to become a player in the EastMed gas market under current circumstances. 

But while Liel sees “little interest” from Jerusalem  in restoring relations , he notes that people to people ties and trade remain strong - in fact Turkey was Israel’s seventh largest export market in 2020 - despite the long period of tension between the countries.  

“Tensions are mostly at the level of top political echelons but not among the public,” says Liel, who by way of an anecdote of the cultural closeness between the two countries notes the huge popularity of Turkish telenovelas in Israel.

In the long run he adds, a rapprochement between Israel and Turkey will probably require a change of leadership. Prime Minister Benjamin Netanyahu sees himself as having been stung by Erdogan, so the big question from his perspective is who will be running Israel’s foreign policy following the next elections. If it is someone who hasn’t been directly hit by Erdogan, then there could be a greater chance of an improvement in relations. 

Erdogan’s analysis is strikingly similar. 

"The main problem right now is about individuals at the top," the Turkish president said in his December statement. 

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Ilan Evyatar is an Israeli journalist. He has served as Editor-in-Chief of the award-winning Jerusalem Report magazine; and News Editor of The Jerusalem Post, where he also wrote a weekly column on politics, economics and international affairs. He is currently working on his first book. Read full bio here.

Alon Liel has served as a chargé d’affaires in Turkey and as Israel’s ambassador to South Africa. Following his role in 1999 as foreign affairs adviser to then-chairman of the Labor party Ehud Barak, Liel became director-general of the Foreign Ministry in 2000.

Israel’s Shift to CENTCOM: Big Things Come in Little Packages

By Iris SOBCHAK & FRANK Sobchak

In the waning hours of his presidency, President Trump ordered the U.S. military to change its Unified Command Plan by moving Israel from European Command (EUCOM) to Central Command (CENTCOM).  

Seemingly a small and semantic change, in reality the shift is nothing short of tectonic and momentous. While the decision did not receive much coverage because of the attack on the Capitol and surrounding events, it is an important issue with many considerable ramifications. Specifically, it will have immediate practical implications and will create new opportunities for engagement that could trigger another wave of diplomatic developments and normalizations.

European Command was established in 1952 to provide unified command and authority over US forces in Europe focused on the danger of a Soviet invasion during the Cold War. By contrast, Central Command was established by Ronald Reagan in 1983, taking over from the Rapid Deployment Joint Task Force to address Middle East crises. Israel, Lebanon, and Syria were chosen to remain in EUCOM, at least in part because Egypt was the only country in CENTCOM that recognized Israel. Also informing the decision was the thought that the animosity towards Israel from many Arab nations would complicate coalition negotiations and operational planning.  

At the time, simply having an Israeli entry stamp in one’s passport prohibited American military planners from entering most Arab states, and the ridiculous posturing of officials maintaining two passports became a necessity. General Norman Schwarzkopf believed that not having Israel in CENTCOM made his job as coalition commander during the 1991 Gulf War easier and noted, “I’d have difficulty impressing the Arabs with Central Command’s grasp of geo-political nuance if one of the stops on my itinerary had been Tel Aviv.”  

But the decision had negative consequences on U.S. interagency planning. In the Department of Defense, Israel was under EUCOM while in the State Department it was organized under the Near Eastern Bureau with its Arab neighbors. This caused difficulties in the areas of defense and diplomacy, including when negotiating treaties or coordinating operations. But the geo-strategic tides shifted and in 1994 Jordan joined Egypt in recognizing Israel. 

Fast forward to more recent months and we note that as part of the recent Abraham Accords, Bahrain, UAE, Morocco, and Sudan have also normalized relations. 

Moving Israel to CENTCOM is a significant step towards correctly aligning the State and Defense Department regional bureaus and commands. The logical realignment of Israel in CENTCOM is good for governance and will allow the U.S. to manage the national bureaucracy and communications between these governmental organizations and with our allies in the region.  

Additionally, the two most pressing regional (and potentially geo-strategic) dangers of our time, a rearming and resurgent Iran and the threat of militant Islamic fundamentalists groups such as Al Qa’ida and ISIS, are issues that require the involvement, coordination, and assistance of countries throughout the region.   

The U.S. has long sought to build a regional defense arrangement to counter Iranian expansion and prevent Iranian acquisition of nuclear weapons. By including Israel in the appropriate plans and operations, CENTCOM will have greater success in achieving these goals, whether they be through missile defense, non-proliferation, countering terrorist financing, or simply killing or capturing senior terrorist leadership. Israel and her neighbors will also benefit greatly as the change aligns with their own security objectives. 

Switching Israel to CENTCOM also creates new opportunities. Such a realignment will compel other Arab states that have not yet recognized Israel to engage more with her more readily. The alignments also has the potential to lead to warmed relations or even a new wave of recognitions or normalizations. 

At the CENTCOM headquarters in Tampa, there exists an “engagement village” where all countries included in the region send liaisons to coordinate and make connections. Having Israel as  part of this engagement village will open an additional back door of communications that will enable further cooperation on a multitude of issues. Even countries that do not yet formally have established relations with Israel would have to collaborate with Israel in such an environment and it is not inconceivable that such efforts could lead to the quiet prospering of informal relations with Iran’s principal Gulf rival, Saudi Arabia.

Another possible outcome could be that Israel’s shift results in a larger American military unified command plan reassessment. Such a review could spur the movement of the countries in northern Africa that are more culturally and geographically similar to those in the Middle East to be realigned with CENTCOM as well. Making this move would line up CENTCOM with the way that the State Department has structured their Near East Affairs Bureau. It makes logical sense to have Morocco, Libya, Algeria and Tunisia in the same regional headquarters, as they are facing similar issues as the Arabian Peninsula and Egypt.  

The decision to shift Israel to CENTCOM is one that will have significant, immediate, practical benefits for the United States, Israel, and the Arab nations of the region. The only possible downside to this decision is that should Israel come into conflict with any of the other countries within CENTCOM, decision making and operational planning would become more complicated. More likely however, is that such a realignment would help deter this kind of conflict and create a greater peace between Israel and the other countries of the region.  

Engagement leads to personal connections and the dispelling of biases and prejudices.  As the American author Mark Twain wrote, “Broad, wholesome, charitable views of men and things cannot be acquired by vegetating in one little corner of the earth all one's lifetime.” Let us all hope that this move helps inspire such views.

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Frank Sobchak is a PhD candidate in international relations at the Fletcher School of Law and Diplomacy and has taught at the U.S. Military Academy at West Point, Tufts University, The Fletcher School of Law and Diplomacy, and The Massachusetts Institute of Technology. He holds a BS in Military History from West Point and a MA in Arab Studies from Georgetown University. Read full bio here.

Iris Sobchak (Lieutenant Colonel, Retired Army) has had a diverse 29 year career in the military, academia, financial services and in women’s leadership consulting. She taught History at the U.S. Military Academy at West Point and she holds a BS in international/Strategic History from West Point and a MA in Latin American History at Penn State.

TURKISH OVERTURES TO ISRAEL. TREAT WITH SUSPICION

By Arthur Koll

In recent weeks, Turkey has made diplomatic overtures toward Israel, signaling a desire to repair damaged relations between the two countries. But Ankara will need to go significantly further than sending feelers to Jerusalem if it is serious about rebuilding ties. 

In the past, close relations between Israel and Turkey formed an important anchor in Israeli foreign policy, spanning diplomatic, political, and military-intelligence cooperation. The ties also included large-scale trade, and hundreds of thousands of Israeli tourists visited Turkey annually. 

These ties developed gradually, when Turkey was still under the control of a secular government, led by the ideology of its secular founder, Ataturk, and backed by the military, which had a special status. 

When Recep Tayyip Erdogan was first elected Prime Minister in 2003 and came to power with his Islamist Justice and Development Party (AKP), security and intelligence cooperation with Israel were not immediately harmed, and neither were trade or tourism, which continued to break records year after year. 

Yet with time, the Turkish military’s secular chiefs and civil service were replaced with Islamists, and the relationship with Israel began to deteriorate as Erdogan and the AKP tightened their grip on power. 

The 2010 Mavi Marmara incident marked the start of a deep crisis, when Turkish citizens who sought to break Israel’s security restrictions on Gaza sailed to the Strip with Erdogan’s approval, violently clashing with the IDF, resulting in the deaths of Turkish extremists.  

Erdogan’s language towards Israel became more extreme, as he attempted, unsuccessfully, to act against Israel through international legal maneuvers. Rounds of conflict between Israel and Hamas in Gaza saw Erdogan position himself openly and vocally on the side of Hamas, and employ language that bordered on anti-Semitic. 

In 2018, Turkey ejected Israel’s ambassador after deadly clashes on the Gaza border, sparked by Hamas’s ‘return marches.’ Since then, the chargé d'affaires at the Israeli embassy in Ankara has managed what is left of the bilateral relationship. 

But Ankara seems to have gained little, if anything, by its hostility toward Israel. Jerusalem has found strategic alternatives to Turkey, in the form of important new Mediterranean alliances with Greece and Cyprus, where special relations, joint military training, and shared economic interests, including cooperation on offshore gas reserves, are creating powerful partnerships. 

Israel has also nurtured open, strategic cooperation with a number of key Sunni Arab states in the Gulf and North Africa. 

Yet Ankara and Jerusalem still find themselves, sometimes, on the same side, with similar strategic interests. The latest example of this could be found in the recent war between Azerbaijan and Armenia. Media reports suggested that Turkey and Israel were principal backers of Baku, creating a clear merger of interests. 

Still, Israel has been badly burned by Turkey in recent years. Past attempts by Jerusalem to reconcile were only met with hostility, as exemplified by Turkey’s reaction to a decision by Prime Minister Netanyahu to compensate the families of the Mavi Marmara casualties and to express regret over the incident – a decision that did nothing to ameliorate relations. 

To make matters worse, Turkey spent years providing asylum for senior Hamas members on its territory, from where they coordinate operations against Israel. 

Erdogan ultimately views himself as the leader of the Islamic world, resulting in his decision to create an alliance with Hamas, which is a designated terror organization in many Western states. He has also been attempting to gain a foothold in the Temple Mount compound in Jerusalem. 

As a result, it has been surprising to see statements by a senior Erdogan advisor on foreign relations about a new desire to restore relations with Israel, including renewed defense cooperation. 

It is possible that Turkey came to the conclusion that fixing the damaged ties is in its interest for both geopolitical as well as economic reasons. In this context, Ankara is seeking a way to connect and gain from the large gas reserves found in the eastern Mediterranean, from which it has been left out. 

Unlike in the past, so far Jerusalem seems to be reserved in response to Turkey’s overtures. Israel has simply been ‘burned’ too many times by Erdogan’s hostility. Clear confidence building measures are now needed to restore trust.

If Ankara’s intentions are genuine, it would have to shut down Hamas’s activity on its territory to prove it. This would serve as an important confidence building act. At the same time, it is unrealistic to expect that Israel will abandon its new Mediterranean allies for a possible improvement in relations with Ankara. 

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Ambassador Arthur Koll is the former Deputy Director-General of the Israeli Ministry of Foreign Affairs, where he concluded his service as the head of the Media and Public Affairs Division. He is a former Ambassador of Israel to the Republic of Serbia and Montenegro and served as instructor of the National Defense College. Mr. Koll also served as Consul of the Israeli Consulate in Atlanta, USA and as Director of Projects for the Central Europe & Eurasia Division.

IS A LONG-TERM ARRANGMENT WITH GAZA POSSIBLE?

BY Grisha Yakubovich

Voices in Israel have been calling recently for an effort to reach a long-term truce with Hamas in the Gaza Strip, but while Israel may be willing to take steps to reach that objective, it remains an open question whether Hamas is willing and able to do the same.

It is imperative to first realize that Israel and Hamas likely have very different definitions of the term 'long-term truce.'

In Israel and the Western world this could translate into many years of absolute quiet, accompanied by economic development in Gaza, trade, and a major step towards peace.

But in Hamas's world, such an arrangement would be interpreted as an agreement that serves Hamas's immediate, medium, and long-term interests, and the arrangement is unlikely to lead to a broader end to hostilities, so long as Hamas only controls Gaza and not the West Bank – unless that is the organization changes its goals. 

According to Hamas's perspective, a truce arrangement with Israel on the Gazan front does not mean an end to terror attacks by Hamas cells based in the West Bank, Lebanon, or even overseas.

Moreover, while in Israel there are calls for Hamas to demilitarize Gaza as part of such a truce, this would ironically undermine the chances of any arrangement holding up as Hamas needs its terror military assets to reign in other armed factions in Gaza, particularly Palestinian Islamic Jihad and Salafi-jihadi groups, who could try to challenge the détente. 

For Israel, a long-term arrangement would enable the defense establishment to focus its resources and attention on its main threat, the Iranian axis. For Hamas, a deal would be about securing its role as a Palestinian governing entity with tangible achievements to present to the Palestinian people.

To understand Hamas's dilemma in weighing up a long-term arrangement, it is worth noting that such an agreement could see Iran cut off funding to the organization to show its displeasure. Iran expects its proxies and sponsored organizations to confront Israel and be responsive to its desires. Entering a long-term arrangement with Israel would violate that understanding. This could also create new tensions between Hamas and Iran's more intimate Gaza proxy, Palestinian Islamic Jihad.

On the other hand, Hamas is extremely keen to solve the pressing issues it is currently facing – the Strip's failing economy, stretched medical system, disintegrating basic services and infrastructure, and lack of any tangible achievements as a sovereign entity that it can display domestically. The coronavirus is another urgent problem troubling the Hamas regime.

Still, Hamas would face serious challenges if it presented a future arrangement with Israel as being motivated only by the desire to merely secure stable electricity and water, alleviate unemployment, and gain additional economic benefits.

It needs to show more significant gains to Gazans and to the other factions, and this means securing a sea port, and the opening up of Gaza's borders to freer movement. In addition, it would need to secure the release of Palestinian security prisoners – as a separate deal.

The ability to market any arrangement as a major Hamas achievement will therefore be crucial if Hamas leaders in Gaza and outside are to agree to it.

Hamas Gaza leader Yahya Sinwar is worried by the fact that after 13 years of Hamas rule, the organization has little to nothing to present Gazans with, other than wars, poverty, and a disconnect from the West Bank. This is not what Hamas wants to enshrine as its primary legacy.

 Hamas's distress found expression in a recent joint military drill it held with other Gazan factions. The message behind the drill to Israel is that Hamas has power, and is not to be trivialized. It also served as a creative way of urging Israel to enter into mediated negotiations.

The dramatic regional changes that led to normalization agreements between Israel and Sunni Arab states could create new momentum in the push to reach an arrangement. Qatar, a key financial sponsor of Hamas, is moving toward the Saudi-led Sunni axis, and this axis has every interest in pulling Hamas out of Iran's orbit. 

One major obstacle to reaching such an arrangement is the unresolved issue of Hamas's holding of two Israeli hostages and the bodies of two IDF soldiers killed in the 2014 Gaza war.

Hamas is holding the hostages and bodies as bargaining chips for the release of Palestinian prisoners – a major strategic gain if Hamas can secure it. Israel has no current intentions of releasing large numbers of prisoners and is unwilling to proceed with broader arrangements until the release is secured. For Hamas the prisoners and a long-term arrangement are two separate issues.  

Perhaps an even bigger question though is how far is Hamas willing to budge on larger issues.

Not only can Hamas not afford to demilitarize itself, it would also need a declarative acknowledgment from Israel, the Palestinian Authority, and the region that it is the legitimate ruling entity in Gaza

Only such a declarative achievement would enable Hamas to descend some steps from its ideological militant tree, while still being able to enforce its authority over other Gazan armed factions.

This would mean that Gaza would remain militarized in any realistic arrangement and that a great deal of money would need to be poured into the Strip to 'solve the problem' of militant Islamist ideology.

Adding further complications to the mix is the danger that Hamas wins elections in the West Bank, an outcome that would not serve Israel’s interests, as long as Hamas remains a terrorist organization.

It is important to keep in mind that Hamas is a strategic organization with long-term calculations. This means that any potential arrangement would have to go a long way to meeting the organization's immediate and future needs.

This fact creates a far trickier challenge than first meets the eye. Only a delicate recipe, prepared by the right chef, could make such an arrangement potentially 'palatable' for all of the involved parties, near and far.

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Colonel Grisha Yakubovich serves as a policy and strategy consultant to various international NGO's. He concluded his military service in 2016 as the head of the civil department for the Coordination of Government Activities in the Territories (C.O.G.A.T.).

WHEN VALUES GO GLOBAL-A COUNTRY AND PEOPLE REDEFINED

By Efraim Chalamish

This past week brought us the unique opportunity to observe two very different events and occasions that happened to take place on the same day — Tu Bishvat and International Holocaust Remembrance Day. One is nature’s New Year in Judaism and the other commemorates the unprecedented events of the Holocaust and their role in the international community. While these two very distinct events have very little in common, this coincidence of time and place projects important developments in Israel’s rapid growth as a sovereign nation and its role on the global stage. And the lessons should be applied to other Israeli and Jewish events moving forward.

Tu Bishvat is originally a Jewish holiday that celebrates the birth of the trees. Israeli kids historically are heading to nature on that day, planting their first seeds. The holiday not only symbolizes the renewal of nature, but also the unique role of trees and the environment in the Jewish tradition and its culture. Jewish patriarchs, matriarchs, and thought leaders used trees to dream and grow for generations.

Yet, the nature of Tu Bishvat has changed over the years. It was the first birthday of the Knesset, the Israeli parliament, which became a symbol of modern democracy, despite its weaknesses and challenges. It also introduced the concept of environmental preservation and ‘climate change’ to new audiences in Israel and the Jewish community around the world. Most importantly, though, it took particular Jewish events and turned them into a universal message, presenting the meaning of the day to the wider global community.

Holocaust Remembrance Day (Yom HaShoah) has been mainly an internal Israeli event. Commemorated in Israel and Jewish communities around the world in April every year, it became an international event in 2006 when the United Nations announced the new International Holocaust Remembrance Day to be marked on January 27, the date of the liberation of Auschwitz by the Red Army.

Following advocacy efforts by various organizations, which I had the opportunity to be part of, the leadership of the United Nations and the international community concluded that it is the right moment in history to turn the memorial day into an international day, educate next generations in every country and religion, and project the importance and relevance of the horrific events to today’s world. While for years the Holocaust has been perceived in some circles as an internal Jewish element, now the universal message has been delivered loud and clear.

The transition of Tu Bishvat and Holocaust Remembrance Day should have a special meaning to us. They represent a dramatic change in the way Israel defines itself and projects its role in and to the world.

The story of Israel as a startup-nation resonates with broader audiences globally since it shows how you can take internal challenges and convert them to innovation and technological solutions that change positively the world completely, one app at a time. It also brought Israel to the forefront of impact investing, social investments, and Tikkun Olam.

Yet, it is not only Israel’s technology that can take a national narrative to the universal stage in order to re-define Israel’s role in the world. The Jewish and Israeli calendars are comprised of many dates, events, and themes that can be shared with the world to give them current meanings and modern applications.

The benefits are many. While some groups question the importance of these holidays and events even within the Jewish community itself, a universal messaging helps them understand their broader context. Moreover, it provides more opportunities for Israel as a sovereign nation to contribute to the most cutting-edge discussions in the world today, from health policy to security. Also, similarly to the U.N. example, it can create additional forums where leaders from around the world can connect on these key issues, where Israeli diplomacy plays a meaningful constructive role.

The Abraham Accords and consequent agreements between Israel and Arab nations, including the United Arab Emirates, Bahrain, and Morocco, also reflect this change. Listening carefully to the region’s leaders and reading the relevant texts, the agreements reflect not only a new regional strategic order, but also a deep understanding between religions that can be used to surface key issues in inter-religious dialogues, and can be relevant to other religions and crises around the world.

The world of trees met the world of European and World history in a week that reminded all of us of the power of universal relevance and messaging of Jewish and Israeli events and values. We should all continue and explore ways to bring this unique voice to the world. I have no doubt it will be heard. The world is listening.

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Dr. Efraim Chalamish is an international economic law professor, advisor, and media commentator. He has been involved in international legal practice in New York, Paris and Israel, along with research in, and analysis of, cutting edge areas in public and private international economic law. Dr. Chalamish teaches at NYU Law School.

IN THE COMING ELECTIONS, IT'S TIME FOR GENDER EQUALITY TO TAKE CENTER STAGE

By Sharon Roffe Ofir

The coming elections for Israel’s 24th Knesset represent a vital opportunity to place the values of gender equality – and with them, those of liberal Zionism - at the forefront of Israeli national development. 

The good news is that the issue of gender equality is already at the heart of public dialogue. All political parties have recognized the centrality of the issue, and are highlighting the women in their ranks. Almost every party has its own women’s committee, even the ultra-Orthodox Shas party. 

But ultimately, such steps are at the level of ‘nice to have.’ After all, it is one thing to raise the banner of gender equality across all parts of society, it is another to take these calls forward and translate them into tangible action. 

Unfortunately, the ultra-Orthodox parties, including Shas, have no women at all among their elected officials – yet they still receive state funding for election campaigns. As long as this remains the case, full gender equality will be out of reach. 

Any coalition that involves the two ultra-Orthodox parties will be incapable of promoting gender equality. This is not to say that there are not voices within ultra-Orthodox society seeking to create important change. There are indeed Ultra-Orthodox women activists who are fighting back. 

Knesset legislation must be introduced conditioning state funding on parties having at least 30% representation by women. 

 According to a report by the Inter-Parliamentary Union, Israel is ranked 83rd out of 189 countries when it comes to global parliamentary gender equality, and is ranked 27th out of 35 OECD countries. These figures are highly unflattering. 

Measured in the absence of Shas and UTJ, most Knesset parties have female  representation ranging from 26 to 45% – not a trivial percentage, and in line with the Western average. 

Greater commitment to gender equality education is required, from kindergarten to twelfth grade. This is currently not compulsory in Israel, and making such gender education part of the curriculum would be a revolutionary act that could happen in the 24th Knesset. 

Similarly, it is time to open IDF roles to men and women, and while the military has made progress in this direction, ensuring that only suitable candidates reach such positions irrespective of gender should be enshrined in legislation. 

 For any of these things to happen, the ultra-Orthodox parties must be forced into opposition. The choice is clear: Israel can have either ultra-Orthodox parties in the ruling coalition, or it can promote women’s rights. It cannot have both. 

If an enabling coalition is formed, a broad range of issues can be tackled. 

Reform is also overdue in the private sector. Among publicly traded companies on the Tel Aviv Stock Exchange, only three have women as CEOs. To help address this issue, a ‘traffic light index’ was introduced in the last knesset by MK Oded Forer, who chaired the Status of Women committee at that time, to measure the integration of women in the workforce and in senior management in companies on the Tel Aviv 125 Index.

This was based on research conducted abroad, where gender equality indexes are published for investors, since companies with a higher percentage of women have been found to be more profitable, creating investor pressure for the publication of the indexes. 

Israel is still trailing many other countries on this front. The new index will publish figures twice a year, and highlight green companies, which have over 40% women in senior management, yellow companies, with 20 to 40%, and red companies, which have under 20%.

 The coronavirus pandemic has been especially harmful to women, with some 70% of unemployed in this current, third closure being women. There has been a sharp rise of hundreds of percent in the numbers of women falling prey to domestic abuse. And yet, just seven out of 37 people on the government’s committee of experts to exit the crisis are women. 

 Out of the expert guests who appear on the media to discuss these issues, a mere 15% are women. 

Only one woman has served as a Knesset chairperson since the parliament’s founding, and important Knesset committees such as Finance, Defense and Foreign Affairs, and Law and Justice have never been chaired by a woman. ,. 

Meanwhile, twenty-five women were murdered in domestic violence attacks in the past year.

Despite the challenges that remain, today’s young generation is demanding gender equality, and such values are familiar territory for it. Yet it is vital to take the next necessary steps — for gender equality will make it more likely that that we all live in a stable, prosperous society, and in a liberal-Zionist country

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Sharon Roffe Ofir is deputy Mayor of Kiriyat Tivon, in the Haifa region. She is in charge of government relations and gender equality and is a member of WCCS (Women's Council for Civil Security) strategy group. Sharon is the Chairperson of the Women's Rights Committee in the Yisrael-Beiteinu party. Read full bio here.

HEZBOLLAH STILL EYES REVENGE

BY Noam Tibon

In recent months, Hezbollah has made repeated attempts to avenge the death of one of its operatives in a reported Israeli air strike in Syria in July. While the Lebanese terror organization hasn't given up on its stated goal of killing an Israeli soldier in response, the organization currently faces multiple challenges that are significantly more pressing. 

The restraining factors acting against Hezbollah at this time are likely dissuading it from taking action that could lead to war with Israel, though the risk of an unintended conflict certainly remains. 

The Lebanese state, which hosts Hezbollah, faces several crises, each of which has an impact on the organization: The coronavirus pandemic, and a severe economic meltdown are two of the most impactful of the current challenges. 

In addition, the massive blast in the Beirut port in August killed more than 200 people in 2020 and left widespread devastation in the Lebanese capital. 

Iran, Hezbollah's state sponsor, faces its own grave economic crisis, and the spiraling coronavirus outbreak in the Islamic Republic is fomenting widespread anger against the Ayatollahs.

Meanwhile, for the first time in years, extraordinary negotiations took place between the Israeli and Lebanese governments over maritime borders. These talks, though stalled, occurred in spite of Hezbollah, and have been driven by Lebanon's dire economic straits, which led Beirut to seek natural gas revenue in the Mediterranean. Lebanon's willingness to negotiate represents a change to the status quo. 

Iran, meanwhile, remains on high alert as the Biden administration settles into Washington DC. Though free from the concern that President Trump might have taken drastic action against it before he left office, the Biden Administration's policy toward Iran remains unclear. It is as yet unknown when the new president will return to the nuclear agreement, and under which conditions. As a result of these uncertainties, Iran must avoid any unforced errors, and the same holds true for its proxy, Hezbollah. 

Nevertheless, it is important to recall that Hezbollah is continuing with many of its dangerous activities. First among these is its accumulation of firepower. Israel is engaged in a daily battle with Hezbollah, which seeks to turn a significant portion of its massive arsenal of rockets and missiles into accurate projectiles that pose a far greater threat.

Israel's campaign of attacks in Syria is designed to prevent precision guided missiles from reaching Hezbollah. It is also designed to prevent Iranian-backed militias from entrenching themselves in Syria, and building a second front against Israel in the Syrian Golan Heights. 

Last November’s IDF discovery of explosive devices placed on the Israeli side of the Golan Heights border was clear evidence of the same effort by the Iranian axis to create a second anti-Israel northern front in Syria. Hezbollah is certainly involved in that attempt, even if its involvement takes a low profile. 

With so many factors at play, Hezbollah's "revenge" against Israel in response to the July incident appears likely to be very minor, and pursuit of this objective is not at the top of the organization's priority list. 

There have been three attempts since the summer to exact a price from Israel - at Mount Dov, on the Golan Heights, and on the Lebanese border. All three have failed, but Hezbollah continues to search for an IDF weak point, albeit as a low priority. 

The targeted killing of the Iranian Quds Force Commander Qassem Soleimani in a U.S. drone strike dealt a further blow to Hezbollah's effectiveness. 

Despite all of the above, it is also important not to underplay the risk of unintended war. In 2006, when it launched a cross-border kidnapping raid, Hezbollah did not intend to launch the Second Lebanon War, and the organization's secretary-general Hassan Nasrallah would later state as much. 

The high tension level on the Israeli - Lebanese border means that localized incidents have the potential to rapidly snowball into major events. 

Israel therefore must remain on high alert, and closely monitor developments on the ground. While Hezbollah remains under multiple restraints, it could still seek to act, and it may choose a location that is far from local in order to do so, as it has done in the past. 

The 2012 Burgas bus bombing, which killed five Israeli tourists and their Bulgarian driver, is one such example. 

The Israeli defense establishment will be closely monitoring the situation, and can be expected to continue to gather intelligence while remaining on the highest alert. A full blown conflict would be costly to Hezbollah and very costly to Lebanon. 

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Major General Noam Tibon spent his military career specializing in counter terrorism and homeland security. His command positions include service as Commander of the 202nd Battalion of the Paratroopers Brigade, Deputy Commander of the Paratroopers Brigade, Commander of the Etzion Regional Brigade, Commander of the Judea Regional Brigade, Commander of the “Nahal” Brigade, Head of the Personnel Division of the IDF Ground Forces, Chief of the Infantry and Paratroopers Corps, Commander of the Judea and Samaria Division and Commander of the Command and Staff College, IDF.

MIRYAM'S SUMMARY: DR. MICHAEL OREN ON THE BIDEN ADMINISTRATION

By Peter Fishkind

On Tuesday, January 12th the MirYam Institute hosted Israel’s former Ambassador to the United States, Michael Oren, for a discussion, available on MirYam’s podcast channel focused on what Joe Biden’s election will mean for Israel. The first half of the program was a Q & A with Benjamin Anthony and the remainder was filled with questions from members of the MirYam Institute community of adjuncts. The conversation with the Ambassador also focused on recent news events including the riot at the U.S. Capitol.

In discussing Joe Biden, Ambassador Oren described him as a friend of Israel, spoke fondly of his character, and noted that he took specific stances during the Democratic Presidential Primary on issues like U.S. financial aid to Israel to positively distinguish himself from certain other competitors in the race. However, he expressed concern over the administration’s expected Iran policy. In particular, despite speaking highly of the capacity of a number of Biden’s announced foreign policy team and their support of Israel, he noted that the bulk of them played significant roles in crafting the JCPOA. Despite those concerns, the Ambassador stated his hope that the administration will be guided by facts and analysis rather than preconceived ideological goals, that the administration will seek to utilize leverage afforded to it by the sanctions currently in place, and that the administration will avoid showing daylight with Israel whenever possible. 

Certain recent developments, including the testimony of Joe Biden’s nominee for Secretary of State, Antony Blinken, before the U.S. Senate Committee on Foreign Relations, have reinforced the conclusions of the Ambassador. Blinken was generally received warmly by the Committee, testifying that the U.S. Embassy would remain in Jerusalem, complementing the successes of the Trump Administration in facilitating the development of Israeli-Arab relations via the Abraham Accords while pledging to work to increase such efforts. However, as expected, Blinken stated that it would be the Biden administration’s intention to re-enter the JCPOA if Iran was to come into compliance with its terms. As the Ambassador noted, and I agree, the Agreement contains fatal flaws such that a re-entry will cause significant friction in the U.S.-Israel relationship. However, Blinken noted that any such step is a “long way” off and also addressed a critical concern of Oren’s, promising that Israel and other regional allies as well as Congress would be consulted before any U.S. action. If such steps are taken and sound advice is heeded, it will only improve the odds that a policy is best designed to achieve the joint aim of the U.S. and Israel, to prevent Iran from developing the capacity to build a deliverable nuclear weapon. 

Additionally, the Ambassador stated that he does not expect Israeli-Palestinian negotiations to be a particular priority of the Biden administration. Such a stance accords with the U.S. interest, where U.S. meddling has often backfired in its aim of improving Israeli-Palestinian relations. Rather, the Ambassador predicted that a greater focus will be placed on building on the successes of the Abraham Accords, noting Biden’s praise of the agreements during the campaign. As noted, this was reiterated as an intention of Biden’s in the Blinken testimony. 

In discussing the riot at the Capitol, the Ambassador contextualized the events specific to that day within a longer framework of America’s withdrawal from the world. The Ambassador noted that dating back to his time of service as Israel’s Ambassador during President Obama’s tenure through President Trump’s term in office that political leaders in both parties as well as American voters were far more focused on domestic concerns than ones abroad. In the Ambassador's view, the riot was indicative of these troubles and would demand that the U.S. continue its focus on policing itself and strengthening its own democracy rather than foreign affairs. In no uncertain terms, the Ambassador stated that this development will be bad for Israel and the free world, as an American withdrawal will create vacuums to be filled with bad actors. 

This analysis is likely correct as both America’s political divisions and the massive costs imposed by the pandemic will require the Biden administration to focus on domestic issues. However, there is certainly a contrarian view to take here. One could suggest that Americans may respond to the pandemic with an increased focus on global affairs. In fact, its need is apparent, as the virus was birthed in China and spread, in part, because no external actor was on the ground to assess the threat posed by the virus. Similarly, there may be an opportunity to build a political consensus on how the U.S. can most effectively compete with China’s growing economic power and influence abroad.

Unfortunately, while the factors to make such a reinvigoration of America’s broader strategy of engagement with the world are present, it is most likely that other domestic challenges will require too great a focus for any administration to meet them fully in the near term. As a consequence, as the Ambassador noted, Israel will need to continue to diversify its relationships rather than rely on its alliance with the U.S. alone.

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Peter Fishkind is currently an associate in the Litigation Department at Proskauer Rose LLP in New York. He lives in Great Neck, New York and is a Member of the Nassau County Democratic Party Committee.

PALESTINIAN ELECTION TRAIN ROLLS OUT, BUT WILL ABBAS LET IT REACH ITS DESTINATION?

By David Hacham

Palestinian Authority President Mahmoud Abbas has fired the opening shot marking the start of the race to Palestinian elections, some 15 years after the last time a ballot was held,  but multiple obstacles remain, as well as considerable risks for Fatah.

In mid-January, Abbas signed a presidential decree announcing elections in three stages to the Palestinian Legislative Council, the Palestinian presidency, and the PLO parliament.

The last time elections were held, Hamas won a majority of 76 of the Legislative Council’s 132 seats (Abbas won the presidential elections the year before).

There are many good reasons to remain doubtful that the current elections train will reach its final destination.

Hamas rushed to embrace Abbas's decree, claiming that it would prepare the ground for free and fair elections to reflect the genuine will of the voters, though it remains far from clear whether this indeed would be the case in Gaza.

Major gaps remain between the two groups, driven by their opposing strategic objectives, and these differences could still thwart elections entirely.

A sign of Fatah's true feelings about elections could be found in Abbas's insistence that they be held in stages, in contrast to Hamas's desire to hold all three elections (legislative, presidential, and the PLO) in one swoop.  

For Fatah, each stage represents a possible exit ramp, which could abort the process in the event of a Hamas victory. Yet Hamas agreed to Fatah's conditions, due to its ongoing distress in Gaza, where the regime is facing deep economic and health crises, accompanied by regional isolation that is only growing following normalization agreements between Sunni countries and Israel. 

Hamas is seeking rapid economic relief for Gaza, and acknowledgement from the international community that it is a legitimate actor. It views elections as a path to those goals, as well as a stepping stone to expanding its power in the West Bank and taking over Palestinian government institutions.

For Israel, merely allowing Hamas - a hostile enemy entity, it designates as a terror organization - to take part in elections in East Jerusalem presents enormous problems .

Yet it is not just Israel that faces serious dilemmas.

Fatah itself senses some level of discomfort. Within the organization, Abbas's real intentions in moving forward on the elections are unclear, and the question of whether he is prepared to pay the price of a Hamas victory remains open.  

Behind closed doors, claims have emerged that Abbas received a promise from Hamas that it will not run a candidate for the presidential elections, and may even support him, or at least not interfere. If true, this could help explain Abbas's consent for holding elections. Under such a deal, Abbas would give Hamas a chance to be present in the PA's parliament, and Hamas would enable him to continue as PA president.

A far more popular candidate is the imprisoned senior Fatah member Marwan Bargouthi, who is serving five life sentences plus 40 years for a string of deadly terror attacks on Israelis. Bargouthi has hinted at his intention to run in the elections. An additional dilemma facing Abbas is whether to allow rival Mohammed Dahlan to run. Dahlan was ejected from Fatah’s ranks in 2011 due to his rivalry with Abbas, and currently enjoys the support of refugee camps in the West Bank and Gaza, as well as of the UAE and Egypt.

Abbas's renewed interests in elections are primarily timed to coincide with the arrival of the Biden administration in Washington.

He is clearly seeking to signal the PA's democratic credentials, and to consolidate it as a legal, legitimate, and elected entity, after years without elections.

Abbas is undoubtedly aware of the risks he is taking enabling Hamas to participate in the democratic game. Hamas could take over the PA and the PLO from the inside. This would be tantamount to allowing a wolf into a sheep's pen, and hoping that things pass peacefully.

In light of the above, the multiple exit ramps that Abbas has built into the process are critical, and it should surprise no one if in the near future, divisions arise between Fatah and Hamas that derail the elections.

 One possibility is that talks between the factions in Cairo will end with failure, while an escalation of the coronavirus outbreak could also lead to cancellation of the process.  On the other hand, the possibility of the elections dynamic gaining its own momentum also exists, and both sides could find themselves unable to pull the brakes on the process. 

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David Hacham served for 30 years in IDF intelligence, is a former Commander of Coordination of Govt. Activities in the Territories (COGAT) and was advisor for Arab Affairs to seven Israeli Ministers of Defense.

RAMALLAH PLACES ITS HOPES IN BIDEN

By David Hacham

The incoming Biden Administration has relegated all talk of 'reconciliation' between Fatah and Hamas to the realm of fantasy. 

Now, the Fatah-run Palestinian Authority (PA), must remove itself from that process - which was little more than an attempted provocation of Israel and the Arab states in response to normalization, and the Trump peace plan - and aggressively steer itself toward the goal of seizing on Biden's victory in order to make diplomatic progress vis-à-vis Israel. 

Biden's election victory has been greeted with a sigh of relief within the PA, after what for it were four nightmarish years of President Trump, whose policies categorically sided with Israel. 

Yet the PA does not suffer from delusions when it comes to what it can expect to achieve under the new administration. 

The PA does not expect the Biden administration to immediately steer toward a position that would favor the Palestinians. In the PA’s sober assessment, building overly grand expectations would be a serious mistake, at least in the short-term. 

The new American administration will likely repudiate Trump's Deal of the Century and reject all steps that challenge the traditional two-state formula as it seeks to realign with the international community and with positions that receive legitimacy from that community – a source of encouragement as far as the PA is concerned. 

Yet it will likely be many months, perhaps more than a year, before Washington even turns its attention to the Israeli-Palestinian conflict. It will be busy dealing with the coronavirus crisis and with taking steps to put the severely damaged U.S. economy back on track to growth. 

Still, the arrival of Biden has provided the PA with an opportunity to climb down from the ladder it ascended when it decided to cancel security and civilian coordination with Israel as a protest against Israel's earlier intention to apply sovereignty in parts of Judea and Samaria and the Jordan Valley. 

In President Biden, the PA has found the justification it needed to immediately and unconditionally resume coordination with Israel, in a manner that was smoothly accepted by the Palestinian street. 

In terms of what the PA can realistically expect from Washington, steps such as withdrawing the American embassy from Jerusalem back to Tel Aviv, or cancelling American recognition of Jerusalem as Israel's capital, are nonstarters. Ramallah understands that reality. 

But the PA can reasonably expect the Biden administration to renew its funding of the PA and of UNRWA, reopen the PLO's embassy in Washington, and reopen the US consulate in East Jerusalem, while expressing a renewed commitment to restarting the diplomatic process. 

Despite the likelihood that any renewed negotiations will take time to translate into policy, the PA does expect Washington to abandon Trump's Deal of the Century as a basis for future talks. It will also seek to gain diplomatic leverage to freeze Israeli settlement construction, remove annexation from the table as a viable option for Israel, and stymie Israeli aspirations in Judea and Samaria. 

The PA is also seeking increased coordination with Egypt and Jordan ahead of the arrival of the new administration, as recent visits by PA President Mahmoud Abbas to both countries demonstrate. Abbas is keen to present the image of a PA that enjoys the support and backing of moderate Arab states.   

Yet even the successful cultivation of that image cannot mask the fact that the PA has lost its veto power over other Arab states and that the PA can no longer torpedo the desire of those states to promote normalization with Israel. 

The latest agreements between Israel, the UAE, Bahrain, Sudan, and Morocco under U.S. sponsorship make it abundantly clear that the Palestinian agenda, which holds that Arab normalization with Israel is wholly contingent upon major progress in Israeli-Palestinian negotiations, has been discarded by much of the Arab world. 

The Sunni Arab states are preoccupied with a new strategic concern. They fear Iran's nuclear-military program, and are also concerned about Iran's ongoing attempts to entrench itself throughout the Middle East, and its support for radical Islamist elements including Hezbollah in Lebanon; an ever increasing presence. 

Ramallah has little choice but to adapt and to reestablish itself as a major concern despite those shifting priorities, while cautiously raising its hopes that a new American administration can undo some of the setbacks it experienced under the Trump years.  

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David Hacham served for 30 years in IDF intelligence, is a former Commander of Coordination of Govt. Activities in the Territories (COGAT) and was advisor for Arab Affairs to seven Israeli Ministers of Defense.

THE CAPITOL INSURECTION WILL DAMAGE AMERICAN SOFT POWER AND HARM THE US-ISRAEL RELATIONSHIP

By Micah Jones

During my year-long tour in Kabul, Afghanistan, I served as the military aide to the U.S. Army Brigadier General in charge of NATO’s Rule of Law Mission. I joined the general in every high-level meeting with Afghan, U.S., and International VIPs as we tried to establish a viable rule of law system in a country that had none. Although we failed in our overall mission, we did make incremental progress, much of which was due to our ability to cite our own democratic institutions and the consistent, peaceful, transfers of power following our elections.

Deployed to a country that, for centuries, had relied on tribal affiliations and warlords, the ability to contrast the Afghan system with the American one gave our mission clout.

In watching the riotous mob of Trump-supporters and far-right extremists storm the United States Capitol on Wednesday, January 6, 2021, I thought of how impossible that same Rule of Law mission now seemed. Yes, we could cite how the House and Senate reconvened to certify the electoral votes, or how order was restored within a matter of hours, but the glaring stain on American democratic institutions and values would be hard to conceal.

The moral authority that U.S. foreign policy could leverage in a place like Afghanistan had become far more difficult now that warlords and tyrants the world over could point to the Banana Republic-like images of the U.S. Capitol being overrun. 

Beyond the irrevocable damage to American soft power, the mob’s actions may also harm the relationship between the United States and Israel. In the wake of the Capitol Insurrection, there will be significant momentum to overturn everything affiliated with the Trump Administration. Anything that might bolster President Trump’s legacy will face a reckoning. And this retribution will likely be done with a sledgehammer rather than a scalpel. Unfortunately, this purge may do away with some of the historic achievements that the Trump Administration facilitated in the Middle East.

From recognizing the Golan Heights to defending Israeli settlements to presiding over the Abraham Accords, President Trump was incredibly pro-Israel. Trump’s support for Israel, however, may prove to be a curse as the US-Israel relationship may be viewed as a relic from a time that the new Biden-Harris administration must reconstruct. 

Because the vast majority of American Jews are members of the Democratic party, and Israel still has majority bi-partnership support in Congress, this damage to the US-Israel relationship may not be immediate. That said, support for Israel in the US is rapidly becoming a divisive and partisan issue. Israel is anathema to the values of the progressive Left, made amply clear by the most vocal members of the Democratic party who have not been censured despite spouting anti-Semitic and anti-Israel tropes. Coupled with the rise of Critical Social Justice ideologies within academic and governmental institutions, the false notion that Israel is a racist, oppressive, settler-colonial State is only gaining more transaction amongst younger Americans and American Jews.

Following the Capitol Insurrection, my fear is that the mainstream media’s unfair, but likely, equating of all conservatives and Trump supporters as equivalent to the thugs who ransacked the Capitol will lead to less bi-partisan support for Israel. Based on the mob’s actions, many Americans who did not have an opinion about the U.S.-Israel relationship may now view support for Israel as affiliation with a “toxic” Trump Administration. 

With full control of the Executive and Legislative branches and significant momentum to purge the Trump Administration’s policies and executive orders, robust U.S. support for Israel may dwindle. The Biden Administration has already signaled interest to rejoin the “Joint Comprehensive Plan of Action,” colloquially known as the “Iran Deal.” Furthermore, with the progressive Left emboldened and ascendant, and the Republican party in disarray, there will be no check on the most radical voices of the Democratic party when it comes to challenging continued US support for Israel. Withholding of foreign aid, sanctions on Israeli-settlements, and the lack of support in international bodies like the UN may become the prelude to the new American-Israeli relationship. 

The fall-out from the Capitol Insurrection will not be fully known in the immediate future. But what transpired on January 6, 2021 will have ramifications for years, if not decades to come for American soft power and the U.S.-Israel relationship.

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Micah Quinney Jones is an attorney, a US Army veteran, and a pro-Israel advocate. He is a recipient of the Bronze Star Medal for Meritorious Service. Before attending law school, Micah served for over five years as a Military Intelligence branch detail Infantry officer in the United States Army. He was honorably discharged as a Captain in 2016. The majority of his military service was spent in the Army's 82nd Airborne Division.

BRIEFING BY FORMER HEAD OF MOSSAD: MIRYAM ADJUNCT REFLECTIONS

BY David Benger

On Monday, December 21st, the former Director of Mossad, Tamir Pardo, became the inaugural speaker of The MirYam Institute “Exclusive Speaker Series.” Pardo spoke eloquently, thoughtfully, and candidly about many leading issues of the day, and chiefly on three major topics. First, he discussed the JCPOA (Joint Comprehensive Plan of Action – commonly known as the Iran Deal). Next, he offered some thoughts on the Israeli-Palestinian conflict. And lastly, in response to questions from the audience, Director Pardo spoke about the challenges and opportunities the rise of China poses to Israel.

Before delving into these three key issues, however, Director Pardo began with an even more pressing question: What does Israel need to do to regain bipartisan support in the United States? It was a stellar question that I wish Director Pardo had tried to answer. He did not really address this issue in any depth. He noted that Israel is a sovereign nation, and it should not intervene in domestic politics. Moreover, he said, Israel must not be beholden to American interests or overly deferential to American requests.

When it came to the Iran challenge, Pardo’s expertise was in full gear. He presented three theoretical options for dealing with the approaching deadline for a nuclear-armed Iran.

Option one, he said, was a full ground invasion and destruction of weapons-making facilities, akin to the U.S. invasion of Iraq. Pardo immediately dismissed Option 1 as absurd, but ever the intelligence professional, he felt it needed to be voiced nonetheless.

Option 2 is to sit back and wait for the growth of pro-democratic revolutionary forces in Iran, and to support that revolution when it inevitably comes. Pardo was clear that he was speaking only of providing material assistance to a homegrown revolution in full stride, and never of fomenting revolution from the outside. History has shown that outside forces artificially stoking the flames of rebellion (especially in the Middle East) inevitably ends in catastrophe. But offering support to an ongoing revolution might just be ok. The problem with Option 2 is that you are at the mercy of Iranian domestic groups, and if Iranian nuclear scientists complete their work before grassroots activists’ revolt, Israel will have compromised the security of millions of her residents.

That leaves us with Option 3, which, according to Pardo is to negotiate with Iran, to dialogue with the Iranian leadership, and to convince them to change their opinion toward Israel, and reconsider their genocidal intent. Option 3, according to Pardo, is “the only option.”

Pardo claimed the greatest mistake made by President Obama’s negotiating team was to not open the agreement with full diplomatic relations between Iran and the United States. Paragraph 1 of Section 1 of the agreement, said Pardo, should have been a hearty declaration of mutual recognition and establishment of diplomatic relations, followed by immediate openings of reciprocal embassies in Tehran and Washington as well as multiple consulates in both countries.

The conversation retreated from the horizon problem of Iran to the existential problems Israel faces with regard to daily rocket fire from Hamas in Gaza, and various other terror cells in the West Bank, as well as the looming threat from Hezbollah on Israel’s northern tip in Lebanon. Here, Pardo made it clear that though the Abraham Accords are a positive development, they have nearly no impact on the Israeli-Palestinian status quo. Annexation of neighborhoods in Judea and Samaria was never a serious consideration by Prime Minister Netanyahu, according to Pardo. It was merely a feint meant to inspire negotiating partners in the UAE, Bahrain, and other nations to come to the table. And so, the Israeli-Palestinian conflict is no closer to being solved. Pardo was adamant that a one-state solution was untenable. Demographic trends alone would mean that in only a few decades, one state between the Jordan River and the Mediterranean Sea would be a majority Muslim Palestinian state.

At this point, moderator Benjamin Anthony opened the floor to audience questions. Pardo was asked, in particular, to characterize the growth of China from Israel’s perspective: Is China foremost a prospective trading partner? A military rival? Is China’s growth an opportunity or a threat from Israel’s perspective? Pardo answered succinctly, but clearly: “From my perspective, Israel’s priority is the United States. Israel should be careful not to cross the rules that the United States has set, because Israel could end up losing more than it gains.” Pardo indicated that Israel should be taking its lead from the Americans with regard to China, because the special relationship with the U.S. is Israel’s most important strategic asset.

It was not only a special treat to hear from a man of Tamir Pardo’s stature, but indeed a singular honor. The man has done far more than most to ensure that Jewish blood is no longer cheap. Pardo, in my esteem, was thoughtful, self effacing, analytical, and clever in his calculations of the geopolitical costs and benefits.

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David Benger is a research fellow at Harvard University. He is a recent graduate of Harvard Law School, where he served as the chapter president of Louis D. Brandeis Center for Human Rights Under the Law, and the Events Chair of the HLS Alliance for Israel, as well as an editor on the Journal of Law and Public Policy and the HLS National Security Journal.

SUCCESSORS TO ABBAS ARE MARSHALING THEIR FORCES

By David Hacham

An increasingly intense struggle to succeed the aging and ailing Palestinian Authority (PA) President, Mahmoud Abbas, is underway.   

The use of armed militias may be key to a contender's success. Armed support will be needed if the power struggle turns violent. 

Such militias could be ordered to take control of symbolic government sites, like the headquarters of the PA Presidency in Ramallah, or TV and radio stations. While the PA has not clashed with such militias until now, their presence is a looming one.

Abbas, 84, is not in good health, and has been hospitalized repeatedly in recent years. His political exit could be sudden and without warning. 

The succession of power could take a variety of forms, from smooth transition to violent face-offs among the contenders.

CONTENDERS FOR SUCCESSION

Mahmoud Al-Aloul is a 70-year-old Fatah Central Committee Vice Chairman with his own militia. Originally from Nablus, Israel deported him to Jordan in 1971 due to his terrorist activities. His current position provides Al-Aloul with an advantage in the leadership struggle. His son, Jihad, was killed by Israeli forces during the Second Intifada. He enjoys a clean, uncorrupted image as a leader. 

Majed Faraj, 56, a member of a family of refugees from Dehehishe refugee camp near Bethlehem, is known to be close to Abbas, is the head of the PA's General Intelligence Service (GIS), and is a prominent candidate. He is close to Abbas, and is seen as a figure who attracts international support. Faraj has recently been the target of an assassination plot in the West Bank, which seems to signal an escalation in the succession struggle. Faraj served six years in an Israeli prison during the First Intifada. He was appointed commander of the GIS in 2009. 

Dr. Mohammed Shtayah, 62, has been the subject of increased rumors lately regarding his growing chances of succeeding Abbas. An economist by training, Shtayah has not been involved in the power struggles taking place in the Palestinian arena but he benefits from cooperation with Al-Aloul. His appointment as prime minister was interpreted by some as an attempt by Abbas to promote him as a successor. 

Dr. Saeb Erekat, 64, the chief negotiator and secretary of the PLO Executive Committee, is a well known figure but he lacks sufficient popular support and has no military backing. He also suffers from poor health, and his chances of being a viable candidate appear low. 

Dr. Nasser Al-Qudwa, 67, was the PLO's representative to the UN, and a nephew of Arafat. Qudwa enjoys the support of Fatah Central Committee Member Tawfik Tirawi, who has popular support. Al-Qudwa has served as the prime minister of the PA. 

Jibril Rajoub, 66, is the Palestinian Football Association Chairman and the Chairman of the Olympic Committee. Rajoub, a veteran political leader, has support from an armed militia. He hails from the Rajoub clan of the Mount Hebron area and has the backing of the Palestinian Preventative Security (PPS), which he once commanded. 

Marwan Barghouti, 60, is serving five life sentences for the murder of Israelis in terrorist attacks, is an outlying candidate. Barghouti enjoys popularity among young Fatah members due to his incarceration in an Israeli prison, and some believe that his path out of jail involves succeeding Abbas. He is also popular in the Gaza Strip, due his history of armed struggle. 

Muhammad Dahlan, 58, originally from the Khan Younis refugee camp in Gaza, was ejected from Fatah's ranks by Abbas in 2011. Currently exiled in the UAE, he is relatively weak in the West Bank, but maintains a strong influence over Fatah loyalists in Gaza. His standing in the Palestinian arena has strengthened in recent years, and he has formed alliances with elements in Fatah and the PA. His record of being able to secure financial support for Gaza and the West Bank via Gulf states and on behalf of NGOs has boosted Dahlan's standing. Dahlan also receives support from Egypt and maintains close ties with the Al-Sisi government, which views him as a suitable potential successor to Abbas. 

When he departs, Abbas will leave behind a mixed legacy and we will swiftly learn how the transfer of power will occur; orderly transition or violence.

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David Hacham served for 30 years in IDF intelligence, is a former Commander of Coordination of Govt. Activities in the Territories (COGAT) and was advisor for Arab Affairs to seven Israeli Ministers of Defense.