Abbas' real "nuclear option" is in Washington, not Rome

Abbas' real "nuclear option" is in Washington, not Rome
America’s antipathy to the ICC leaves Palestinians with few supporters among a military establishment otherwise increasingly wary of Israel. Potentially far more effective would be legal action under US law, analysts suggest.
11 min read
13 January, 2015
Operation Protective Edge left around 2,200 Palestinians dead [Pacific Press/LightRocket]

General Martin Dempsey is filled with surprises. Noted for his cautious approach to US military policy (he famously stood up to conservative John McCain in July of 2013 when the powerful senator argued for US military intervention in Syria), America's senior officer and the chairman of the US Joint Chiefs of Staff (JCS) rarely makes himself the subject of public attention. Until recently.

In early August of last year, as Kurdish fighters engaged in a slugfest with the forces of the Islamic State group (IS, formerly ISIS), outside of the Iraqi

     "Every time Israel jumps into the Gaza puddle we get splattered with the mud."
- Senior US military officer

city of Irbil, the normally sceptical Dempsey not only urged Barack Obama to commit the US military to degrading and destroying the terrorist movement, he argued that the US should assume responsibility for training the badly mauled Iraqi army.

Dempsey's position came as a surprise to senior Pentagon officers and high ranking civilian officials who feared the JCS chairman's position would lead to a full-scale re-intervention of the US on the side of the Baghdad government – and at a time when defence officials were struggling to maintain a military establishment hit hard by Congressionally mandated budget cuts.

"Dempsey's views on this were kind of shocking, actually," a senior US military officer told me several weeks ago. "We were prepared to help the Iraqis with new weapons and air strikes on ISIL [IS] strongholds, but Dempsey wanted to go further. Here was a guy who really banged the table in opposing new overseas deployments arguing for us to put boots back on the ground in the Middle East. It wasn't like him. We just couldn't believe it."

Why Palestinians should join the ICC. Read Salma Karmi-Ayyoub here

But nothing was more surprising to this same senior military officer than Dempsey's public statement defending the Israeli army when the JCS Chairman spoke at a forum held by the Carnegie Council for Ethics in International Affairs in New York City in early November. In response to a question from the audience, Dempsey argued that the Israeli military took admirable steps to limit civilian casualties during its summer offensive against Palestinians in Gaza. Dempsey praised Israel's controversial policy of "roof knocking" (warning Palestinian civilians of an impending attack by exploding a shell on the roof of a Gaza home) and, as Dempsey specifically noted, dropping leaflets "to warn the citizens and population to move away" from areas of high combat.

Dempsey's defence

"I actually do think that Israel went to extraordinary lengths to limit collateral damage and civilian casualties," Dempsey said, and went on to explain that "in this kind of conflict, where you are held to a standard that your enemy is not held to, you're going to be criticised for civilian casualties."

"He should know better," this senior military officer said, when asked to comment on Dempsey's claim, "as he'd seen the reports we'd done on the IDF's tactics in Gaza."

In particular, this officer pointed out, Dempsey had been fed a steady diet of intelligence reports of tactics the Israeli army had taken "on a real time basis" since the first days of the Gaza incursion in July of 2014. The details of one of those reports, on the military's fight against Hamas militants in the Gaza City suburb of Shujaiyah during the late evening and early morning hours of 19 July, had been leaked by a senior military officer to an American journalist in early August. As was reported on the website of Al Jazeera America on August 27, US monitoring of the Israeli army's Gaza operation in Shujaiyah showed that the military had used 258 artillery pieces in firing "at least 7,000 high explosive shells" which included "a barrage of some 4,800 shells during a seven-hour period" at the Gaza community at height of the operation. Senior US officers were stunned by the use of such massive firepower, the Al Jazeera America report noted. 

In fact, the report was so damning that it prompted Secretary of State John Kerry to scoff at Israeli claims that its Gaza incursion was calibrated to dampen the loss of civilian life. His comment on the Israeli army's Shujaiyah operation was inadvertently caught by a live-mic just prior to his appearance on a high-profile Sunday television talk show on July 20. "It's a hell of a pinpoint operation,” Kerry bitterly noted, shaking his head. "It's a hell of a pinpoint operation."

But the Shujaiyah operation was not the only part of "Protective Edge" – the Israeli army’s name for its assault – that concerned US officers monitoring the Gaza conflict. According to a senior US military officer familiar with the JCS monitoring programme, the military team provided what this officer called "general monitoring" of the conflict with "regular updates on the fighting," but also focused on Israeli ground and air tactics during specific operations – including the IDF's 8 July operation in Khan Yunis which killed six children and the 30 July strike on a UN school that took the lives of 17 Palestinians, many of them children

Such reporting is not unusual. The US senior command regularly designates teams to track military operations of foreign forces with an eye towards compiling a "lessons learned" summary that will guide US forces in their own operations. In the case of Protective Edge, US military officers were specifically attempting to glean information on how best to fight insurgent forces in highly populated areas.

ICC application hits a nerve

"Fighting in a highly populated urban area is extremely difficult," retired Colonel David Johnson of the Rand Corporation, America's premier think-tank on military affairs, told me, "and few militaries have overcome the difficulties." Johnson, who wrote a highly praised monograph on the 2008 US fight for Sadr City, in Iraq, refused to characterise the Israeli army's operations in Gaza, but pointedly noted that the tactics the US has followed in such battles combine "precision and restraint" – two qualities that, as one member of the JCS's monitoring team noted, were not in evidence during Protective Edge.

Under normal circumstances, the American military's reporting on the Israeli military's tactics this last summer would be consigned to the past – as were the controversies that followed Israel's two previous operations against Gaza, in 2008-2009 (Operation Cast Lead) and in 2012 (Operation Pillar of Defence). But President Mahmoud Abbas's December 30 decision to sign the Rome Treaty which established the International Criminal Court has revived Israeli fears that it could be held accountable for what happened in Shujaiyah, and elsewhere in Gaza, last summer.

US will ensure its troops don't stand trial in an international court [AFP]

Abbas's decision, what officials have termed the PA's "nuclear option", has been met with a flurry of anti-Palestinian activity, with Israeli officials and their American supporters warning Palestinian leaders that their action will be met by "a strong response" – the usual code for an announcement of increased settlement activities.

But in this case, at least, Israel's worries over the PA's decision on the ICC go much further. Israel has announced that it will freeze upwards of $125 million in Palestinian tax revenues due to the PA's decision, an initiative that was criticised by the State Department as "counterproductive", and US Senator Rand Paul has introduced legislation in the Senate the would cut off all US aid to the PA – some $400 million.

While the PA's actions on the ICC have hit a nerve, providing public evidence of Israeli sensitivity to claims about what it did in Shujaiyah last July, senior military officers who have been among the first to criticise Israel's actions in Gaza (at least in private), believe the ICC initiative is a bad idea – primarily because of the controversy the ICC generates in military circles.

"You won't find support for the court among the military," one now-retired Army general notes, "because no one in an American uniform would turn an American soldier to an international body for trial." Additionally, this retired officer says, supporting the PA's decision on the court leave the US vulnerable to similar actions by non-state parties.

"The [US] government's claim that the PA doesn’t have standing in the court because it’s a non-state actor isn't just some kind of excuse,” this officer notes, "it's a very real concern. If the PA can bring a claim against Israel at the ICC, then other non-state actors can do the same thing – and target the US."

Israel's splatter

What this officer meant, without precisely saying it, is that if the PA can bring a case against Israel, then a group like IS or al-Qaeda can bring a claim against the United States – which US officials see as a perversion of an institution designed to hold state actors responsible for their military actions. While US worries about the ICC are often exaggerated (the US has, in fact, worked diligently with the court to ensure that it does not "supplant sophisticated legal systems"), senior US policymakers view the PA's appeal to the ICC as an example of how the jurisdiction of the court can be abused.

Which is not to say that large numbers of senior US military officers, and at the most senior levels, remain some of Israel's most outspoken critics. Ever since then-Centcom commander David Petraeus told a Congressional committee in March of 2010 that the failure of the US to resolve the Israeli-Palestinian conflict "foments anti-American sentiment, due to a perception of US favouritism for Israel", scepticism about Israeli intentions have become a common theme. This scepticism has deepened, the result not simply of Israeli actions in Gaza, but also of the widespread perception that Israeli military and US military tactics are indistinguishable. That perception rankles US warfighters who, at the height of Israel's actions in Operation Protective Edge, were quick to tell reporters that Israel's actions in Shujaiyah – and throughout Gaza – were viewed at the Pentagon as counterproductive, disproportionate and a threat to America's already shaky standing in the Arab world.

"We didn't sell Israel Hellfire missiles in order for them to bomb population centres in Gaza," a Pentagon officer told me at the height of Israel's Gaza operation this summer. A second officer was even more outspoken: "Every time Israel jumps into the Gaza puddle," this officer says, "we get splattered with the mud."

That view seems to confirm what many observers of the PA's ICC actions believe – that holding Israel accountable for what happened in Gaza this last summer means holding the US accountable. In an article posted by the Brooking Institution this last week, Khaled Elgindy, a fellow at Brookings' Center for Middle East Policy, noted that "Abbas' decision to join the ICC is part of a broader strategy of internationalising the conflict in order to increase pressure not only on Israel but on the United States as well."

But if the PA's actions are meant to "splatter" the US with Israel's mud, it is not only unlikely they will not succeed, they reflect a basic misunderstanding of how large sections of the US military, and the American public, now view Israel. A far more effective policy would recognise the growing disenchantment among senior military officers (despite General Martin Dempsey's November remarks), with Israeli tactics. A handful of senior military officers confirm this view – noting Israel's vulnerability to negative reports in the State Department's "Blue Lantern" programme (which tracks "end use" compliance of nations and individuals of US-manufactured defence articles), as well as possible Israeli violations of the "Leahy Law", named for US Senator Patrick Leahy, which bars US aid to foreign militaries suspected of human rights violations.

The real nuclear option

For a number of policymakers intent on signalling Israel that the US views Israeli military operations as undermining America's status in the Middle East, the Leahy Law provides a more credible alternative to holding Israel accountable than the PA's decision to bring Israel to account under the terms of the Rome Treaty.

"Israel's centre of gravity [its vulnerability] is in Washington, not in Rome," a senior currently serving military officer told me last week. "There's already growing scepticism about Israel in the Pentagon, so why not take advantage of that?"

A number of influential Americans agree, including large numbers of Jewish Americans who view Israel's military actions sceptically. Last October 6, for example, "Jews Say 'No'" and "Jewish Voice for Peace/New York" wrote to New York Senators Charles Schumer and Kirsten Gillibrand requesting that they take actions against the Israeli military for its actions in Gaza.

"We believe that there is undeniably credible evidence that military units of the Israel Defence Forces committed gross human rights violations during their military operations in Gaza from July 7 to July 29," the group said in its letter. The groups noted that it is "up to the Congress to do whatever possible to ensure the law is obeyed. We urge – we demand – that you call for prompt Senate hearings to investigate this matter."

Of course, neither of New York's senators (both of whom are strong supporters of Israel) have called for such hearings - or are likely to. But that's not the point. For while Mahmoud Abbas is intent to bring Israel to account in an international tribunal, US officials are much more worried that Israel's Gaza actions makes the Israeli military vulnerable before an American tribunal. Israel has surely been "unnerved" (as the Brookings Institution's Khaled Elgindy notes), by the PA's ICC initiative, but Mahmoud Abbas’s real "nuclear option" remains an appeal to US law.