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#################### Geoff Seidner
Why Palestine joining the International Criminal Court could be a total game changer
Palestinian leader Mahmoud Abbas signs ICC Rome Statute last December. EPA
After more than five years and much diplomatic wrangling, Palestine has joined the International Criminal Court (ICC). Now, the prospect of Israel being held accountable for war crimes has greatly increased, and that will have significant repercussions for the peace process and for Palestinian statehood.
ICC prosecutor Fatou Bensouda opened a preliminary investigation on January 16. This can investigate everything that has happened in Palestinian territories since June 13 2014 – the date that Palestine formally accepted ICC jurisdiction. This is also the date when Israel broke a ceasefire with Hamas leading to Operation Protective Edge, which raged throughout the summer of 2014, leading to the deaths of at least 1,473 civilians in Gaza and bringing widespread international condemnation against Israeli actions.
The story dates back to 2009, when the Palestinian Authority requested that the ICC investigate Israel over Operation Cast Lead, but was rejected for not being a state. It was rejected for full membership in the United Nations in 2011, but was granted the status of non-member observer state the following year.
Palestine then joined numerous international organisations, such as UNESCO, and while the question of its statehood remains controversial, it has now been allowed to join the ICC. In the interim it has periodically indicated it would refer Israel to the ICC, but was held back by pressure from the US, the UK and France – and because using the threat suited Palestinian political interests.
Avenues of enquiry
The prosecutor could investigate the civilian casualties in Operation Protective Edge. She could also investigate whether the Israelis carried out the war crime known as collective punishment. This includes demolishing the homes of suspected Hamas militants, thus rendering their families homeless, as well as killing civilians in these buildings. During Operation Protective Edge alone, Amnesty International reported that “more than 18,000 homes were destroyed or damaged beyond repair”.
Israeli tanks in action during Operation Protective EdgeEPA
Click to enlarge
The prosecutor would also be likely to investigate Palestinians over the hundreds of rockets Hamas fired indiscriminately into Israel from Gaza, which resulted in the deaths of at least six civilians.
The ICC’s power in this situation is somewhat weakened by the fact that Israel is not a signatory to the ICC, but still significant. Bensouda could issue arrest warrants for individual Israelis, who could then be arrested if they travelled to one of the 123 signatory countries. Any finding would also be a powerful condemnation of Israeli policy that could severely damage the country’s international standing.
A big issue would be identifying those most responsible for relevant actions against Palestinians. This could very well include Israel’s prime minister, Benjamin Netanyahu, and his predecessors – as well as other senior government officials and military commanders.
In theory there are precedents that would enable Bensouda to decide not to investigate Hamas on the grounds that the actions by the Israelis were much more serious. But in practice the intense international scrutiny would likely put extra pressure on the prosecutor to be completely evenhanded.
Consequences
The implications of any investigation are extremely unpredictable – particularly following the recent Israeli election, where Netanyahu stated that there would be no Palestinian state while he is in power (he has since tried to move away from this statement, but few believe this reversal).
One prospect is sanctions against the Palestinians. Israel has already retaliated for Palestine joining the ICC by refusing totransfer to the Palestinian Authority more than $100m (£68m) per month it collects in taxes (it has since partially backpedalled). And despite the fact that the US is not a party to the ICC either, Congress has passed a law as a concession to the pro-Israel lobby mandating that all economic assistance to the Palestinian Authority be cut off once it joins the ICC.
Such sanctions could cause the Palestinian Authority to collapse, doing even more harm to the peace process. This would further destabilise an unstable situation and potentially further radicalise Palestinians, while expanding global sympathy for the nation.
A second possibility is that an investigation deters Israelis and Palestinians from further armed conflict, but this is unlikely while Israel’s policy continues to be based on its oft-proclaimed right to protect its security and continues to see settlements as key to its continued existence. And legal challenges from a court which Israel doesn’t recognise are not going to change those policies overnight.
Given Obama’s comments after the Israeli election there is widespread speculation that Israel may have to reckon without continuing US diplomatic cover in the UN Security Council, which might might reduce the prospect of the US attempting to get a resolution through the UN Security Council to suspend the investigation.
But Hamas is unlikely to be deterred by the threat of the ICC either. The conflict goes too much to the heart of Palestine’s existence – and we have seen that Hamas is willing to endure much more severe punishment from Israel to pursue its goals.
A third possibility is that the peace process revives. Many will not want it to collapse entirely, including the US – which may be prepared to reverse its opposition to a Security Council resolution calling for the occupation to end and the creation of a Palestinian state. The Obama administration has recentlyreiterated its public backing for a two-state solution, after all. Thequid pro quo would likely be that ICC proceedings be suspended.
Of course, such a move by the Obama administration would likely be resisted by both hardline Israeli politicians and many members of Congress. Russia, in particular, could also decide to veto a suspension through the Security Council at some point. Even if the Israelis did reach a peace agreement, the threat of prosecution in The Hague would always remain.
From despair to where?
Palestine joining the ICC has further complicated the situation in the region over and above the Netanyahu election victory. And even if peace broke out in lieu of an investigation, it could have negative consequences. It could make the ICC seem merely a tool to make warring parties lay down arms, which could badly damage its legitimacy. It would keep in power those who committed atrocities on both sides, raising the possibility that they could be spoilers as the peace is implemented.
Meanwhile those most affected would likely be left feeling they had received no justice. Some people on both sides might only feel able to embrace reconciliation after seeing wrongdoers punished. They might rightly ask whether this is the best result that decades of development of human rights norms and mechanisms can deliver.
Islamic State is a project built on solid foundations by jihadist theorists with decades of experience. The savagery of terrorism precedes the next stage of a caliphate that delivers longed-for order.
Abu Bakr al-Baghdadi, the spiritual and political head of IS, is a clever theologian and Qur’anic artisan. We would do well to better our own interfaith theological understanding.
Australia made progress on restoring trade and sharing intelligence on Islamic State in Iraq. Iran was less open to accepting the return of asylum seekers, which may prove a blessing in disguise.
The instinctive response to Islamic State propaganda is to counter it with more propaganda. But my analysis shows that's not working. We should not play their game on their field with their ball.
Australia and New Zealand's joint mission in Iraq is getting underway. But in NZ, the decision to send 143 troops to train Iraqis against Islamic State has faced a divided parliament and public.
By reaching out to Iran, Australia can help end a long stand-off with the West that prevented solutions to many of the world's most dangerous problems, including Syria's civil war and Islamic State.
Australia has a clear obligation under international law to take action to stop abuses of human rights and international humanitarian law by the ISF and Shi’a militia.
ISIS's destruction of archeological treasures is horrifying but reflects a too-human history of obliterating the past of "enemy" cultures. Moreover, all is not really "lost."
There will be more Jake Bilardis to come, and Australia must realise that no two cases will be entirely the same. Radicalised individuals will come from all areas of society.
Western governments not only misread Islamic State, they have a very limited understanding of the Internet and its role within the private spaces, bedrooms and imaginaries of teenagers.
The flows of refugees from the conflicts in Iraq and Syria are yet another driver of demographic changes that are threatening to destabilise other states long regarded as strong and democratic.
Gareth Evans: ‘Bob learned early self-deprecation is for dummies’
Bob Carr ‘obviously revelled being back in the middle of the action’ in his 18 months as foreign minister, says former Labor foreign minister Gareth Evans. AAP/Alan Porrittminister, says former Labor foreign minister Gareth Evans. AAP/Alan Porritt
Bob Carr took on the job of Australian foreign minister believing, as he doesn’t hesitate to tell us in his Diary of a Foreign Minister, that it was highly unlikely that he would be there for very long.
And although he doesn’t put this in quite so many words, it is clear that he approached the role, in these circumstances, with three basic objectives: to keep himself, and Australia, out of trouble; to have a ball; and to write up the whole experience for posterity in the most readable and colourful possible way. On the evidence of our eyes and ears over the last two years, and now of his book, it is clear that, on all three counts, he succeeded admirably.
He slid effortlessly into the presentational role at home and abroad, and kept himself out of trouble with the media (even maintaining, miraculously, the adoration of Greg Sheridan for the whole of his tenure – not the five weeks maximum that I told him was the previous record).
He kept Australia’s flag comfortably flapping through countless multilateral forums and bilateral exchanges; contributed significantly to our spectacularly successful UN Security Council bid (though he graciously acknowledges the central and critical role of our UN Ambassador Gary Quinlan in that success). He saved us from at least one spectacular own goal (on the Palestinian statehood issue), and navigated his way through what has been, and will remain, Australia’s biggest current and future foreign policy challenge by not offending either Washington or Beijing.
He obviously revelled being back in the middle of the action, and basking in the company of the world’s great, good and glamorous. Although it’s also clear that he derived huge and genuine pleasure from his less obviously glamorous encounters in the South Pacific and the African Commonwealth.
And he has given us a book which, in describing all this, captures, as well as anything you’ll ever read, both the crazily sleep-deprived, adrenalin-charged, exhilarating and frustrating life of a contemporary foreign minister – and the crazy combination of excitement and despair, idealism and cynicism, that characterises domestic Australian politics.
Cabinet diaries – a subset of the rather large genre of political diaries, and the much larger one still of political memoirs and autobiographies – tend to fall into two distinct categories, as Bob himself noted back in 1999 reviewing Neil Blewett’s diary of the first Keating government.
One kind focuses on “providing the arguments and raw material for historians” of which Richard Crossman’s record of the Wilson government in the UK in the 1960s is the daddy of them all, and Blewett’s a reasonably clear Australian example. The other kind focuses on “providing episodic colour and personality”, of which the leading Anglo-Saxon example – until now – has been Alan Clark’s wonderfully tasteless and entertaining diaries of the Thatcher years in the UK.
Of course, most such diaries try to do both to some extent. All policy debates and no egos, infighting and eccentricities would make for a pretty dull read. But all colour-and-movement, with no real policy substance at all, would be a little too much like daily journalism as it is now practised to be worth putting between hard covers.
But there is a noticeable distinction within the genre, and it is pretty clear on which side of the line Bob’s diary falls. To the extent that he had any role model for his own diary, I think he would be the first to acknowledge that it was Clark rather more than Crossman.
Gareth Evans as Australia’s foreign minister.AAP
Click to enlarge
There’s plenty of incidental meat for analysts and historians to relish. How could there not be with so many encounters at such a high level on so many issues with such key players?
But Bob doesn’t pause very often or for very long to analyse in detail the multiple policy issues with which he wrestled, or to explain how they were resolved within government or advanced in international negotiations. It is not that kind of book. His primary target – and he has hit it – is a general audience interested in reading a very skilfully written account of what it was like to be there.
There are not many of us in Australian public life who have had that privilege, of being there.
I was one of them, and a great many people, as a result, have been asking me how Bob’s experiences, and his approach to the role, compared with my own when I was Australia’s foreign minister. So I hope you won’t mind me spending a little time telling you.
The short answer about the nature of our experiences is that they were remarkably similar, even if many of the issues we dealt with were different. I don’t just mean here the manic pace of it all, the stresses of travel even at the front of the plane, the strain of constant tightrope walking in one’s public utterances, the pressures of meeting the expectations of domestic constituencies, the sense of exhilaration and excitement on the big occasions and when things go well, and the disappointment and despair when they don’t.
I mean also that sense which we both had – although Bob has been subject to some pummelling over the last week for the way he put it (in terms of not feeling “humble” in the presence of the great) – that Australia thoroughly deserves any place it can win at the top international tables, that competent Australian representatives can match it in any company, and that we can be justly proud of the contribution Australia has made and can continue to make as a good international citizen.
There is an issue, about which some in the government have been particularly critical, about the propriety of putting those experiences quite so fully on the record so soon after the event. I have to say that I feel something of a wimp in this respect, waiting nearly 30 years to publish – as Melbourne University Publishing will in August – my own diary potentially offending my colleagues in Hawke-Keating cabinet in the mid-1980s, rather than the less than 30 weeks it has taken Bob to potentially offend his colleagues at home and abroad.
I don’t think Bob has much to be apologetic about in this respect. No confidences of any consequence are revealed, and certainly nothing of any security sensitivity. Some of the exchanges he details have the potential to be slightly embarrassing to the participants – and go further by way of revelation than I might have been prepared to as foreign minister 20 years ago.
But times have changed and much more is out and about in the media, and social media, than ever used to be the case. I don’t believe that any of our relationships will be prejudiced, or future dialogue made more difficult, by what he has recorded.
On the question of Bob’s and my approaches to the job, there are some evident differences between us, partly reflecting the difference in the circumstances in which we held office and partly just because – although we have a number of literary/historical and other nerdy interests in common, have been friends for a long time, and he is kind enough to describe me as his mentor in this book – we really are very different kinds of people, with very different personal and political styles.
As to the circumstances in which we held office, I knew, like most of my predecessors, that in the absence of catastrophe I would have at least three years in the job, and hopefully rather longer. Bob knew that only a political miracle would give him longer than 18 months. And having a longer time horizon certainly enables you to be patiently proactive in creating and building diplomatic initiatives, rather than essentially just reacting, however deftly, to events.
The other contextual difference was that I had the enormous good fortune of working to two prime ministers, Bob Hawke and Paul Keating, who each in their different ways had fine instincts for the issues and dynamics of international relations, and who instinctively understood the nature of the relationship that must exist between prime minister and foreign minister if things are not to end in tears. They were mutually respectful, highly communicative and interactive, and always willing to find common ground on sensitive issues and not to resolve them simply by the prime minister pulling rank.
Bob, by contrast, had much more difficulty in all these respects with Julia Gillard. However, she did have many admirable prime ministerial qualities, including great professionalism in mastering complex briefs, and very effective interpersonal skills, evident in her international as well as domestic dealings, as I can personally testify.
Bob Carr had occasional difficulties in dealing with prime minister Julia Gillard.AAP/Alan Porritt
But beyond the very different contexts in which we operated, we have also been very different in other ways. And I’m not just talking here about my total lack of interest in knowing what “steel-cut oats” are, let alone eating them, and my total lack of ambition – as will be apparent – in achieving “a concave abdomen”, let alone one “defined by deep-cut obliques”, whatever they might be.
There’s a relentlessly pragmatic cast to Bob’s approach to the world which comes through regularly in the diary which I don’t completely share, never having abandoned my belief that you can marry necessary pragmatism with a quite strong commitment to liberal, and indeed idealistic, principles.
One example is the enthusiasm with which he embraced as a “masterstroke” Kevin Rudd’s Papua New Guinea solution to the asylum seeker problem. We could all understand the need for a deterrent dimension to stop the deaths at sea of boat people. But I for one think that this needed to be accompanied by a huge diplomatic effort in the region to address the problem at source, which we never saw.
Another example is Bob’s willingness to be, I think, much too kind – again for reasons related to stopping the flow of asylum seekers – to the Rajapaksa regime in Sri Lanka, which was responsible for some horrific violence against civilians in the course of its (otherwise entirely legitimate) military response to the terrorist Tamil Tigers, and has never made an atrocity-accountability commitment it hasn’t breached.
I guess Bob would go along in this respect with my friend Jim Baker, who said to me once when he was US Secretary of State, in that inimitable Texan drawl of his:
Well, Gareth, I guess you sometimes just have to rise above principle.
Moving to less fraught differences between us, an obvious one is that Bob is and remains – as he cheerfully acknowledges – a “media tart” of the first order who absolutely revels in today’s twittering 24/7 news cycle madness, and is never happier than when contributing soundbites to it. I, by contrast – while not exactly, in my prime, a media recluse – can’t help but regard today’s environment as closely approximating Dante’s ninth circle of hell.
There is a more substantive dimension associated with this differing preoccupation of ours with the media. I saw set-piece foreign ministerial speeches, which I probably spent an inordinate amount of time developing, as really important tools of advocacy, record and instruction. They were crucial vehicles for articulating ideas about Australia’s place in the world, and getting other opinion leaders at home and abroad to understand and wrestle with its complexity.
Bob, by contrast, as he frankly acknowledges throughout the book, saw his speeches in less highfalutin terms: primarily as vehicles for communicating his very engaging personality. Recognising, with his intimate knowledge of media attention-span, that no more than a few lines or soundbites would ever be widely retailed, he took the view that there was not much point in taking substantive discussion much further than that. I think that was a missed opportunity, and that there is another one in this respect in this book, but it was an understandable call.
I think it’s probably fair to say, while on the subject of presentation, that we also seem have rather different senses of self-referring humour – albeit in neither case of a kind sufficient to keep us out of trouble. I have always leaned to self-deprecation in this respect (“Whatever you do don’t call me Biggles”, the “Streakers Defence” and so on), being very slow to learn that this is very dangerous politically.
This is not only in the case in the world’s irony-free zones like the US, but also locally, because there is always the risk that you will be taken literally, and regarded as being as big a dill as you say you are.
Bob, by contrast, learned early on that self-deprecation is for dummies, and there is plenty of evidence of his education in this respect in this diary. His preference now is for laying on his mastery of the universe so thick that the comedy (“I sing, I dance, I fly … I am the master entertainer”, “the wonderful one-legged Romanian deadlift” and all the rest) will be seen, as one commentator described it last week, as that of “a true satirist, a self-made grotesque”.
The trouble is of course, again, that even in the world’s irony-receptive zone – in which Australia usually counts itself – there will be a lot of people out there who don’t get the joke. But if he’s cheerfully prepared to take that risk, that’s his call.
All these differences duly noted, there is plenty on which Bob and I have agreed, and for which his efforts as foreign minister deserve attention and recognition, albeit not discussed in his book in the degree of detail I for one would have liked.
There was the new approach he pioneered to dealing with Myanmar, recognising that isolation and sanctions had largely run their course and there needed to be some greater international engagement with the military regime to edge it toward change.
There was the careful way in which he picked his way through the competing imperatives, in a rapidly evolving strategic environment, of keeping the US alliance alive and well but at the same time staying close friends with our major economic partner China.
There was the role he played in overseeing the crucial last phase of the UN Security Council campaign, projecting an image of Australia as engaged with Africa and the developing world generally, committee to generous international assistance, and committed to global public goods like managing climate change and achieving arms control.
And there was what I regard as perhaps his signature achievement, his leadership role in ensuring, in November 2012, that Australia did not vote “No” on the UN General Assembly resolution to give Palestine observer status there.
As Bob records me saying at the time, a No vote “would have been the worst Australian foreign policy decision for a generation”, being not only wrong in principle, but leaving us totally isolated from every friend we had in the world apart from the US and Israel, and mortally wounding our credibility and effectiveness on the Security Council to which we had just been elected.
Bob Carr’s views on the so-called ‘Jewish lobby’ in Australia have caused some consternation.EPA/Abir Sultan
It’s important to appreciate that while questions of eroding Labor support in Sydney’s western suburbs was a relevant factor in the debate for some NSW members, the argument in Bob’s eyes – as in mine – was wholly about doing the right thing for Australia – and at the same time not acting against Israel’s real interests but in fact very much in support of them.
We had both come to share Bob Hawke’s strong view – and no Labor leader had ever been a firmer friend of Israel – that the Netanyahu government, along with its rusted-on supporters in Australia who were lobbying fiercely for a No vote, was shooting itself in the foot with its intransigence.
On the question of those rusted-on supporters, in particular in the Victorian Jewish community, I don’t think we should get as excited as the press has been in the last few days. This is a lobby group like any other, which wins some and – notwithstanding all the donations and duchessing – loses some. It influenced me to campaign vigorously against the Zionism as Racism resolution when I was foreign minister, which I was proud to do because the cause was just.
But it also lost me – and my fellow Victorian Bob Hawke – when it lost its way, as it has continued to do to this day, on the larger Palestinian issue. It certainly very strongly influenced Gillard, but I am sure she made the judgements she did – cloth-eared they may have been – on what she believed to be a principled basis.
Bob Carr took the view, as Bob Hawke and I had before him, and with the overwhelming majority of the cabinet and caucus agreeing, that pressure had to be mounted to achieve once and for all, and sooner rather than later, a two-state solution – without which Israel will be condemned either to lose its Jewish identity, or to maintain it at the price of ceasing to be an equal-rights-respecting democracy. And the UN vote was simply a legitimate way of increasing that pressure. It left full membership of the UN to be determined and final status issues to be negotiated, and contained no language remotely offensive to Israel.
Forcing the issue in the cabinet and the partyroom, and ensuring that the majority view prevailed – even if Gillard was deeply embarrassed in the process – was not about crude local electoral politics. It was about ensuring that Australia was not seen internationally as being on the wrong side of history.
The treatment of the Palestinian issue is about as detailed as the analysis and argument gets in this diary about the great substantive issues of foreign policy with which Bob and the government – and indeed the region and the world – were wrestling during this period. And whether or not he felt constrained by the rules governing cabinet secrecy so close to the event, you won’t find in the book anything very secret, and previously unsuspected, being disclosed.
But what you will find is, again, a wonderfully engaging account of what it’s like to be there¸ where and when it’s all happening, written with great flair and obviously huge enjoyment of life. This is a book which should fly out of the stores and on to the shelves of anyone with even a passing interest in politics and public affairs. And so it should. It’s a great read.
This is an edited version of Gareth Evans' speech given at the launch of Diary of a Foreign Minister on April 14, 2014.
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But some explanation is necessary.
Come on - explain, in a way that makes sense.
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For me personally it makes me even more convinced that the invasions of Iraq and Afghanistan and Libya etc not only should not have happened, but could have been prevented with diplomacy. What are those guys doing turning to the gun every time?
Thanks for the read, it adds to Carr's statements nicely. I look forward to your book in August. I'm being educated (more than I deserve perhaps), but it's nice for the cat to have the opportunity to not just look at, but listen to the Queen.