If we let them. And so the ultimate question is where Israel stands.
When I speak of “them,” I am referring to national and institutional entities that are anti-Zionist. Unfortunately, there are many.
A major concern for Israel is the readiness of the European Union (EU) to support and foster illegal actions by the Palestinian Arabs.
We have friends in Europe – most notably in Eastern Europe where there is a more right wing sensibility because of the experience with communism. The Czech Republic, for example, and Hungary have demonstrated support for Israel. Left-leaning Western European nations such as Germany, while offering intermittent lip-service to friendship with Israel, can be relied upon far less. What I am referring to here, however, are the highly problematic policies not of individual nations but of the corporate collective of the European Union.
And while there are other problematic policies, the focus right now is Area C in Judaea & Samaria – the area over which Israel has full control – at least in theory – and where all Jewish communities in Judaea & Samaria are located. Control is via the Civil Administration, which answers to the Ministry of Defense. (The PA has full control in Area A; in Area B the PA has civil control and Israel is responsible for security.)
Salam Fayyad, who was prime minister of the PA from 2007 to 2013, advanced a plan for statehood in 2009 that involved establishment of a de facto state that would preclude the necessity of negotiations. The placement of sufficient facts on the ground in Area C – illegal seizure of land and the establishment of buildings, including housing and schools — would enable the PA to have contiguity from the Hebron Hills to the Shomron. This would isolate Israeli settlements and disrupt Israel’s territorial contiguity.
The Israeli NGO Regavim, which fights for Jewish rights in the land, has been tracking this very serious situation and urging the Israeli government to take a strong stand against it. As matters stand, some illegal buildings are taken down, but this represents a small percentage of those erected.
At present there are 60,000 illegal Palestinian Arab structures in Area C. They have built in IDF firing zones, and in nature reserves in areas they committed to not building in. Sometimes they put up temporary tents, which the IDF does not disturb, and they then follow with permanent structures.
The PA narrative regarding this situation diverges from the truth again and again. For example, they say an Arab village had existed on a given site before the establishment of Israel. But aerial photos going back to 1949 show that there was nothing on the site.
Or they claim that they apply for legal permits to build but a very small percentage is granted by Israel. While in fact what happens is that they flood Israel with an excessive number of requests for permits, and then show that a miniscule percentage is granted.
Or they say that Palestinian Arabs have to live somewhere, while in fact aerial photos of Areas A and B show 60% is completely empty.
The PA is not moving alone in this effort. They have been provided with financial, advisory and logistical support from the EU.
Look closely at the illegal buildings above and you can see blue and white stickers on each – these carry the EU logo.
Naomi Kahn, of Regavim, wrote about this situation three years ago (emphasis added):
“Both public, official statements by E.U. representatives and the map of these illegal outposts leave no room for doubt: European Union activism has been the most decisive factor in the progress of the Fayyad Plan.
“The method is simple: E.U. vehicles station water cisterns and solar panels in strategic spots in Area C. Bedouin clans then create encampments around these critical resources, and the rest is history: The Jahalin clan and the residents of Khan al Akhmar are two well-known examples of the results.”
The EU, which is acting in defiance of international law, conducts itself so outrageously that when Israel demolishes an illegal building it had paid for, it sometimes sends Israel a bill for the cost.
Kahn goes on to describe yet another related, and very alarming, situation:
“In the most recent iteration of the Fayyad Plan, the P.A. initiated a massive tree-planting campaign designed to annex crucial, strategic tracts of land through agricultural use. Focusing on key locations in the Jerusalem area, the Ma’ale Adumim region, Gush Etzion and Eastern Shomron, the Roots Project is now attempting to take advantage of the laws currently in force in these areas, which specify that agricultural use qualifies land for protected status.
“After trees are planted, State land in Area C is redefined as ‘contested land,’ and the State of Israel cannot reclaim it…
“At a recent hearing of the Knesset Subcommittee on Judea and Samaria, Regavim’s Meir Deutsch pointed out that ‘hundreds and thousands of dunams of survey land, including water sources, reservoirs, water pipelines, roads and fences, have been seized. Unfortunately, the agricultural issue is at the bottom of the [government’s] list of priorities, and so, only a few years from now, the survey lands that are presently part of Israel will become privately owned Palestinian land.’”
This nightmare situation is inexcusable. We waited for 2,000 years to come back to our land, and we dare not ignore its theft.
There has been a regrettable reluctance within our government to face the international criticism that would ensue if we asserted ourselves. I recently learned that German government officials threatened to support ICC efforts to investigate Israel for war crimes if we persisted in illegal housing demolitions.
Hopefully something has been learned: We have not been forceful in protecting our rights, the ICC has decided to come after us anyway. (See following.)
The government of Israel must move now with strength and determination, before it is too late.
At a recent Webinar on this subject, Professor Avi Bell, a member of the Law Faculty of Bar Ilan University, urged the following:
- Halt the flow of funds to the Palestinian Authority in the amount it costs to demolish illegal structures and remove/impound equipment or uproot illegal agricultural activity.
- Charge the European Union and EU member states for the costs of demolitions, etc.
- Interdict funds before they reach the PA’s bank account.
- Revoke visas of European “consultants” to PA planning and construction committees.
- Demolish new structures IMMEDIATELY before legal proceedings are necessary.
Naomi Kahn has provided additional suggestions:
- Either repeal Ottoman Land Law provisions that grant property rights on the basis of agricultural use, or override the Israeli High Court decision that prohibits the application of this provision to Jews.
- Complete a full land survey and registration of ownership of all land in Judea and Samaria.
- Revoke “universal standing” before Israel’s High Court of Justice.
- Institute a Judicial Override Law to remove the undemocratic influence of the High Court of Justice from matters that are within the realm of diplomatic and political authority.
Many of these suggestions merit further exploration. And it is clear that adjustments are required both in our laws and our judicial system.
But it is extremely important to share the information here without delay.
And then another problematic situation:
At the time I wrote, the ICC had recognized the PLO as a “state,” which was promptly accepted as a member of the Court. The Pre-Trial Chamber (a three judge panel of the ICC) had then ruled that the ICC had jurisdiction to prosecute “war crimes” carried out in the territory of the “state,” which by ICC definition includes Gaza, Judaea & Samaria, and eastern Jerusalem.
But at that point a decision had not yet been made by Chief Prosecutor Fatou Bensouda as to whether prosecution would actually be pursued. There was some thought that it might not be, especially as she was retiring in June and she might opt to leave the decision to her successor, Karim Khan.
Bensouda wasted no time in making her decision: On March 3, she announced that:
“I confirm the initiation by the Office of the Prosecutor of the International Criminal Court of an investigation respecting the Situation in Palestine (sic).”
Outrageous enough that she has decided to do this, but note, please:
“The investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation since 13 June 2014, the date to which reference is made in the Referral of the Situation to my Office.”
Observe the date: June 13. One day earlier, on June 12, 2014, Hamas had kidnapped and murdered three Yeshiva boys: Eyal Yifrah, 19; Naftali Frenkel, 16; and Gilad Shaer, 16.
What ensued after this date was the IDF response to what Hamas had done; it began with a search operation and evolved into a conflict dubbed “Operation Protective Edge.” Yet the ICC will not be investigating the Hamas crime, only the Israeli response to that crime, because the crime took place before the time frame set out by the ICC for the investigation.
When Bensouda speaks of “the Referral of the Situation to my Office” she is alluding to the PLO petition requesting that an investigation be held, which set out that time frame.
The ICC did not accept the PLO as a “state” and a member of the Court until 2015. The PLO, in submitting its petition, then retroactively permitted the investigation to begin as of June 14, 2015, even though no “Palestinian State” had been recognized back then.
If ever there was a set-up, this is it.
If the Court could not investigate the original crime, it had no business declaring it would investigate the response to the crime.
This reeks of antisemitism. They make it up as they go along, with scant concern for proper procedure or legality.
Attorney Nitsana Darshan–Leitner, founder and president of Shurat HaDin Israeli Law Center, writing on this issue says (emphasis added):
“Alas, genocide, beheadings, kidnappings and rapes, Islamic State’s reign of terror in Syria and Hezbollah’s in Lebanon—none of these is as important as the return of Israelis to the Jewish Quarter in Jerusalem.
“Israel has filed dozens of complaints with the ICC over war crimes, which have been consistently and persistently ignored, all while Bensouda had regularly met with pro-Palestinian ‘rights groups.’
“It seems that Palestinian officials have immunity in her court, while Israeli complaints about P.A. leader Mahmoud Abbas’s complicity in Fatah rocket fire on Israel during ‘Operation Protective Edge’ in 2014 is still pending, as is the Israeli demand that the P.A. be made to cease its pay-for-slay policy.
“Bensouda met with Abbas; that is a fact. How is it possible that the chief ICC prosecutor met with an individual against whom complaints on which she has to rule have been filed?
“…It is also not a coincidence that the ICC’s decision on the investigation came only after a new American president took office, as it was the long reach of the Trump administration and the threat of U.S. sanctions on ICC officials that kept it at bay.”
There is still a lack of clarity as to how this will play out. We do not know if Bensouda has consulted with her successor, Karim Khan, on this, or whether she pushed the matter now in order to make it more difficult for him to shelve it after she leaves.
In any event, it will take years. In the Court’s crosshairs would be the leadership of Israel as of 2014: Binyamin Netanyahu, who was prime minister; Benny Gantz, who was IDF chief of staff; Moshe Ya’alon, who was minister of defense, etc. Israel, which adamantly rejects the Court’s jurisdiction in this matter, will not cooperate in any investigation. There will diplomatic efforts to bring other nations on board to stand against the court.
Many politicians in Israel spoke out strongly against the ICC decision. IDF Chief of Staff IDF Chief of Staff Aviv Kohavi vowed that the military would not be deterred by the investigation:
“We will not allow any foreign institution without authority to intervene in our activities for the defense of Israel, and certainly not to put those serving in the IDF at legal risk.”
Darshan–Leitner adds that, “Israel has to pass laws to protect its security personnel from The Hague, similar to the U.S. policy adopted immediately after the establishment of the ICC in 2002, which bars any type of cooperation with it.
“Israel must also work with the U.S., which faces the same risk following the ICC’s announcement that it plans to look into alleged American ‘war crimes’ in Afghanistan; and Jerusalem should also work with its allies worldwide, and take a firm stand against any nation that cooperates with the ICC’s investigation. The battle to prevent an investigation has failed. The war for Israel’s vindication has begun.”