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The Tangle of US-Israeli Double Standards

By       Message Marjorie Cohn     Permalink
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Reprinted from Consortium News

President Barack Obama stands with Israeli President Shimon Peres and Prime Minister Benjamin Netanyahu during the President Obama's official arrival ceremony in Tel Aviv, Israel, in 2013.
(image by (Official White House Photo by Pete Souza))

As Israeli voters went to the polls, Prime Minister Benjamin Netanyahu declared he would oppose the creation of a Palestinian state. In what The New York Times called a "racist rant," he also proclaimed, "right-wing rule is in danger" because "Arab voters are streaming in huge quantities to the polling stations."

James Besser, Washington correspondent for Jewish newspapers for 24 years, wrote that Israeli voters, "more clearly aware of Netanyahu's intent than ever," have chosen "the apartheid path."

Netanyahu's remarks were met with outrage in the United States and around the world. The Obama administration reacted by saying the United States would "reassess" its policy toward Israel. And, significantly, White House Chief of Staff Denis McDonough told a J Street conference that "an occupation that has lasted for almost 50 years must end, and the Palestinian people must have the right to live in and govern themselves in their own sovereign state."

Netanyahu's words create a golden opportunity for Barack Obama to radically transform his policy of uncritical support for Israel's ongoing violations of the law.

Israel took over the West Bank (including East Jerusalem) by military force in 1967 and has held it under military occupation ever since. Security Council Resolution 242, passed in 1967, refers to "the inadmissibility of the acquisition of territory by war" and calls for "withdrawal of Israel armed forces from territories occupied in the recent conflict." Yet Israel continues to occupy the Palestinian territories it acquired in the "Six-Day War."

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Since 1967, Israel has transferred more than a half million of its own citizens into these territories. Israel continues to build settlements in the West Bank, which is occupied Palestinian territory. A state that is occupying territory that is not its own cannot build settlements on that territory and transfer its own citizens into them.

Under the Rome Statute for the International Criminal Court (ICC), such action constitutes a war crime. Article 8.2(b)(viii) of the statute defines "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime.

The ICC can investigate and prosecute these crimes. Yet, in order to prevent such investigation and prosecution, the United States has consistently opposed Palestine becoming a party to the Rome Statute. Congress passed a law that would automatically discontinue the United States' $400 million annual aid to the Palestinian Authority (PA) if Palestine were to bring charges against Israel in the ICC. Palestine will join the ICC on April 1. If Palestine files charges in the ICC, Obama should find indirect ways to provide funding to the PA to prevent its collapse.

Under the National Emergencies Act, the president has the power to declare an emergency response to a foreign policy crisis. Obama should designate the Israeli settlements an emergency. He could then regulate or prohibit any foreign exchange transaction that directly or indirectly contributes to the expansion of the illegal settlements.

Dozens of organizations designated as 501(c)(3) nonprofits by the Internal Revenue Service (IRS) funnel tens of millions of dollars annually to illegal Israeli settlements. Funding illegal activities violates IRS guidelines. The IRS should undertake a thorough investigation of the activities of these organizations.

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War Crimes During Operation Protective Edge

In July 2014, Israel invaded Gaza and killed more than 2,000 Palestinians, the majority of them civilians. Nearly 10,000 Palestinians were wounded, more than 2,000 of them children. Tens of thousands of Palestinians lost their homes and infrastructure was severely damaged. Numerous schools, United Nations (UN) places of refuge, hospitals, ambulances and mosques were intentionally targeted.

Israel used the "Dahiya doctrine" to apply "disproportionate force" and cause "great damage and destruction to civilian property and infrastructure, and suffering to civilians populations," as defined in the 2009 UN Human Rights Council (Goldstone) report. These acts constitute evidence of war crimes under Article 8 (2)(a) of the Rome Statute.

Flavia Pansieri, the UN deputy high commissioner for human rights, said that human rights violations "fuel and shape the conflict" in the occupied Palestinian territories, adding that, "[h]uman rights violations in the West Bank, including East Jerusalem, are both cause and consequence of the military occupation and ongoing violence, in a bitter cyclical process with wider implications for peace and security in the region."

Nevertheless, the United States has opposed the investigation and prosecution of these crimes in the ICC. The United States has joined Israel in boycotting the UN Human Rights Council's investigation of international law violations during the July 2014 attack (known as Operation Protective Edge). The U.S. government should support this process and the ICC investigation.

The United States provides Israel with $3.1 billion in military assistance each year. Under the Arms Export Control Act (AECA), countries that receive U.S. military aid can only use weapons for legitimate self-defense and internal security. Israel did not act in self-defense during Protective Edge and its actions went far beyond protecting internal security. Obama should suspend future deliveries of the weapons described in the AECA.

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Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. She is author of  'The United States and Torture: Interrogation, Incarceration, and Abuse, and 

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