Steven J. Rosen, director of the Middle East Forum's Washington Project and former foreign-policy director at AIPAC, addressed the Middle East Forum on December 17, 2012, via conference call. Steven Rosen and MEF President Daniel Pipes recently met with Israeli officials to discuss strategy and policy in the wake of Israel's Operation Pillar of Defense in Gaza and the Palestinian Authority's (PA's) upgrade to a non-member observer state by the UN General Assembly. Mr. Rosen shared some insights and conclusions of these discussions.
Hamas in Gaza:
Israel's deterrence has been partially restored following the Gaza fighting. Israeli national security doctrine espouses a clear preference for adversaries that exercise strong central control over their constituents and can therefore be held accountable for hostile behavior emanating from these territories. This now appears to be the case with Hamas as evidenced inter alia by its swift enforcement of quiet after the ceasefire agreement.
Future Israeli efforts to prevent Hamas from rearming are likely to focus on enlisting Egypt, which has a vested interest to avert another conflagration in Gaza. Unlike President Mubarak who turned a blind eye to Sinai weapons smuggling in the hope of driving Israel to weaken Hamas for him, President Morsi cannot afford such an eventuality for the simple reason that Hamas is the Muslim Brotherhood's Palestinian offshoot.
The UN vote and the Palestinian Authority:
The PA's move was a transparent attempt to rally the international community behind an imposed, rather than negotiated, solution. By codifying the 1967 borders in a UN resolution the PA has effectively predetermined the outcome of future negotiations.
A more malevolent goal of the initiative is to enable the PA to bring criminal charges against Israeli military personnel and state officials at the International Criminal Court (ICC), a body comprised of judges from non-aligned countries largely hostile to the Jewish state. This option, however, has some clear limitations:
- Israeli military operations are defensive and governed by the principle of proportionality;
- The ICC is restricted by the principle of complementarity (i.e., complementary to national criminal jurisdictions), and given Israel's position as the most independent judiciary in the Middle East it has no need to act in lieu of its courts;
- Israel could bring counter claims of war crimes against the PA and Hamas.
There is one possible ICC action of concern to Israel: litigation concerning "settlements." Were the ICC to rule that the Fourth Geneva Convention applied to the disputed territories, thus making them legally "occupied," this would enable the prosecution of current and past members of government involved in the establishment of settlements for war crimes.
The US, like Israel, has not recognized ICC jurisdiction because of the likelihood of politically motivated prosecutions. The ICC could just as easily be used to bring cases against U.S. soldiers in Iraq and Afghanistan as well as Predator drone counter-terrorism strikes. Yet although it is in America's self-interest to avoid submitting to ICC rulings, the Obama administration has softened Washington's opposition to the ICC to a policy of re-engagement.
Summary account by Marilyn Stern, Associate Fellow with the Middle East Forum.