Palestine and the ICC
At the close of 2014, Mahmoud ‘Abbas, head of the Ramallah wing of the Palestinian Authority (PA), announced that he would sign the Rome Statute, the 2002 treaty establishing the International Criminal Court based in The Hague. This move opens the possibility that the Palestinians could ask the Court to investigate Israeli military operations and/or occupation practices as violations of international law. ‘Abbas accepted Court jurisdiction retroactive to June 13, 2014, when Israel began the raids that developed into Operation Protective Edge, the seven-week bombardment and invasion of Gaza. The meaning and efficacy of the PA’s maneuver are subjects of considerable debate. We asked five legal scholars and Palestine watchers for their views on the matter.
Finally, after years of consultations and endless statements, the Palestine Liberation Organization (or the Palestinian Authority, or the State of Palestine as it calls itself now) has joined the International Criminal Court. Mahmoud ‘Abbas has played his trump card, hoping to force Israel to negotiate in good faith. He is trying to send a message to Israeli leaders: It’s either the negotiating table, with results in the near future, or a cell in The Hague. While it is a welcome step, I suspect that the high expectations built up by the PA over the past few years will soon start to fade.
Legal questions arising from the possibility of taking Israeli leaders to the ICC have been widely discussed among academics and in the blogosphere. While optimists believe that joining the ICC can bring about justice, Israel apologists maintain the line that “Israel can do no wrong,” and that even if it did, the ICC could not deal with the wrongs. There are a lot of gray areas, and the debates about them are fraught with politics. Despite its characterization as a court, the ICC is essentially a political institution, and international criminal justice is essentially a contested political framework. Blind faith in international law, with no attention to its origins and history, is a dangerous kind of naiveté.
Does this mean that the Palestinians should abandon legal routes? Of course not. International law is part of the fabric of international relations, and to ignore it would be to forfeit a potentially useful tool. At the same time, a national liberation struggle cannot be fought only in the ICC and the UN. It is useful to turn to this phrase, which has grounded the Palestinian cause at its high points, to parse the limits of the ICC-as-strategy.
- National. The Palestinian struggle is an anti-colonial struggle of a nation, and without a mobilized nation, struggle is impossible. Since the beginning of the Oslo process, however, the Palestinian leadership has neglected Palestinian refugees and frozen the PLO institutions that represent them, contributing to the demobilization of the displaced. In the West Bank, years of failed PA policies designed mainly to impress the West with “how civilized” Palestinians are (which generally meant imprisoning, torturing and sometimes killing those engaged in armed struggle, silencing and intimidating anyone who disagrees with the official line, and hyper-neoliberal economics) have left the Palestinians more fragmented and demobilized than ever.
- Liberation. The PA has replaced this goal with repeated talk of “President Bush’s vision of a two-state solution,” as laid out in the 2003 “road map” that was to have led to Palestinian statehood within two years. Such ideas are expressed with great fanfare, but many questions are left without satisfying answers, especially with regard to the right of return of Palestinian refugees displaced in 1948. In other areas, such as democracy and human rights, if the past actions of the PA are a sign of what the future state will look like, there is much left to be desired.
- Struggle is a very broad category. On the spectrum of tactics, the Palestinian leadership sticks to those that make the most noise but the smallest impact, such as the failed attempt in December to persuade the UN Security Council to grant Palestinian statehood by 2017. Other tactics, such as boycott, divestment and sanctions, are not on the leadership’s agenda, illustrating their ideas about grassroots struggle and representational structure.
Neither joining the ICC nor acrobatics in the Security Council will yield significant results as long as the leadership suffers from crippling myopia about the options for resistance and as long as the main constituency is demobilized and unsure of the ultimate goal. Only after revisiting all of these points and developing a truly national strategy can the potential of international law be explored. Law and legal tactics cannot replace strategy, but they can play a role in a strategy -- one that enjoys a high level of support, mobilizes the grassroots, employs a range of tools and is guided by a clear vision.
Can the International Criminal Court deliver the justice Palestinians have struggled to realize for well over a century? The pursuit of accountability at the ICC is one venue for this struggle. But any sustainable vision of Palestinian liberation must account for the confines of the courtroom and, more broadly, international law. As should be clear to all observers of international law, the odds are stacked against Palestinians in that courtroom. The challenge ahead is to innovate not simply litigation strategies but to put them in conversation with radical popular mobilization.
The State of Palestine has now committed itself to the Rome Statute’s provisions, making the entirety of the situation in Palestine subject to potential review. This development is positive in that it opens Israel’s structural violations, and not simply its engagement in armed conflict, to scrutiny. It also means that the ICC can investigate Palestinian armed groups. The Palestinians are at several disadvantages in all scenarios.
The most difficult crimes to investigate are those committed in wartime because their legal character is not self-evident. The ICC would have to examine each Israeli attack on Gaza during Operation Protective Edge, for example, to determine whether the harm caused outweighed the military advantage gained. If so, the attack is considered a war crime; if not, it is an unfortunate example of war’s cruelty. To make such determinations, the Court would need access to military intelligence that both Israel and Palestinian armed groups would be loath to make available.
Moreover, as a matter of law, the behavior of Palestinian groups is simpler to decipher. Their rockets lack the capacity to distinguish between military and civilian installations, making them ipso facto illegal. In contrast, Israel insists that it seeks to avoid civilian casualties. Although Israel has provided no compelling evidence to this effect, should it choose to participate in ICC proceedings it will be eligible to make a case. The Palestinians will not.
A further disadvantage: Article 17 of the Rome Statute says that the ICC has no jurisdiction over a “situation” (in the Court’s parlance) that is “being investigated or prosecuted by a state that has jurisdiction over it, unless the state is unwilling or unable to genuinely carry out the investigation or prosecution.” Palestine cannot claim such independent jurisdiction. In contrast, should Palestine refer a situation to the ICC and should Israel not boycott, Israel can make a case that with the five criminal investigations it has opened into Operation Protective Edge, for example, it is making a genuine effort to police itself. While Israel’s dismal investigations of Operation Cast Lead put the adequacy of such claims into question, demonstrating that inadequacy involves a separate and lengthy legal process. The principle of complementarity would at worst shield Israel from investigation and at best delay the process so severely as to thwart justice.
The ICC, finally, could simply choose to avoid the political landmines of the Palestinian-Israel conflict. The Office of the Prosecutor exercises significant discretion in deciding which cases to investigate. Should the Prosecutor find that a criminal investigation would not serve “the interests of justice” because it would hamper an ongoing political process or fail to satisfy any party, thus exacerbating conflict, she could simply delay the review process again and again, or as Kevin Jon Heller puts it, “slow-walk the preliminary investigation into oblivion.”
At present, Palestine has not referred a situation to the Office of the Prosecutor. It would not be unwise if Palestine goes no further. Such a holding position is forward-looking and serves as a deterrent to any future attack Israel may launch against the Gaza Strip. If, however, Palestine chooses to refer a situation, then it is best to refer the situation in the West Bank where the focus would be of structural substance, such as settlements. This move is in contrast to referring the entire situation of Palestine, which would take years, or the latest war on Gaza, which exposes the effort to the vulnerabilities discussed.
In order to maximize the ICC’s benefit, Palestine must be prepared to wage a multi-faceted campaign outside the court aimed at leveraging popular and diplomatic support for its cause. The extra-legal strategy includes seeking diplomatic partners to resist and withstand US sanctions, as well as turning to civil society, primarily but not exclusively the global BDS campaign. It also necessitates achieving a more realistic unity government with Hamas -- one that envisions the possibility of ICC prosecution against Palestinian groups and prepares for the attendant fallout. This approach is a fundamental pivot away from the Palestinian strategy of undue, and exclusive, faith, in the US-led peace process.
Submitting a case for review to the ICC should serve as a catalyst for reorienting the Palestinian liberation movement: to rehabilitate the Palestinian national body; to extricate the Palestinian leadership from the debilitating terms of Oslo; and to seek new diplomatic alliances. The worst-case scenarios are abundant, while the best-case scenarios require diligence, resourcefulness and a tremendous amount of good fortune. Most of all they require the PA to turn away from its limited pursuit of self-interest. Such a dramatic shift among the Palestinian leadership offers much more promise for the pursuit of justice than any court could deliver.
(See the full version of Erakat’s commentary, “Who Is Afraid of the International Criminal Court?” now at Jadaliyya.)
Just when skeptics (including me) thought we had seen the last of the Palestinian Authority’s “Ending the Occupation, Building the State” program, launched by Salam Fayyad in 2009, its proponents have proven us wrong in thinking it had become a relic.
As the PA failed to achieve both of those goals promised under its liberal economic program and iron-fisted internal security policy, Palestinians have been wondering what comes next. If PA good governance certificates issued by the international community, three devastating wars against Gaza and daily confrontations with expanding colonization in the West Bank and Jerusalem are not enough, what do the Palestinian people have to do to be able to exercise their right to national self-determination, as guaranteed by the (in)famous international legitimacy to which they so stubbornly cling? Surely 30 years of armed struggle, and 20 years of peace negotiations and soft diplomacy since 1994, not to mention the last years of economic peace and institution building, should have been able to undo the ravages of what in most twentieth-century colonized countries took a few decades, at most, to reverse. But no, apparently not. Enter the PLO’s latest and perhaps ultimate weapon -- lawfare.
The critique of Palestinian neoliberal state building that Sobhi Samour and I elaborated in the winter 2011 Journal of Palestine Studies focused partly on the perils of adopting liberal economic policies in a situation of colonial dependency, thereby undermining strategic development prospects. Of no less concern to us was the manner in which the free-market, state-building agenda as espoused by the PA inevitably and necessarily detracts from the potential for, and practicality of, the struggle for decolonization, self-determination and sovereignty. In the glare and bounty of the Ramallah good life, it is sometimes hard to remember that this daily struggle of the Palestinian people has yet to be concluded or to see that the fruits of economic peace have been unequally distributed.
Beyond its usefulness as a training exercise for future sovereign government, the PA’s steady acquisition of the trappings of statehood amounts to little more than biding time until a political settlement may be possible, entrenching its own legitimacy and power, and allowing capital to move freely across the borders that economic peace has so adeptly erased. While the PLO has adopted the label “State of Palestine” since 2012, it has done nothing to assert the sovereignty of that state in the economic, legal or security domains. If anything, for all the good intentions of those responsible for recent PLO policy, conditions on the ground mean that the establishment of a sovereign, independent Palestinian state is a more improbable prospect today than in 2007, when PA reform efforts accelerated, or in 2002 when the UN Security Council first affirmed the right of the Palestinian people to an independent state.
PLO diplomats have embarked since 2014 on a not dissimilar strategy of declaring adherence to international conventions on the assumption that the world will ultimately deal with it as the government of an occupied state and intervene to ensure its liberation. If the UN Security Council rejection of the Palestinian statehood bid was not clear enough, then likely Israeli (and US) sanctions, especially financial, against the indebted, subservient PA will test the resolve of the PLO to pursue a strategy whose success depends more on the good will of strangers than on realities on the ground and the balance of power, which is deeply skewed to the advantage of the colonial power and the dictates of its old and new allies, from Europe to the Americas and Oceania, even to Africa.
The past decade has been largely one of doing everything possible to limit direct confrontation on the ground with the occupation, not only in the areas under PA jurisdiction, but equally in those areas under Israeli control like Area C and Jerusalem. Consequently, the Palestinian national liberation movement has lost some of the opportunities and wiggle room it had retained in previous incarnations -- in terms of its path of economic development, its political independence and national security. It remains to be seen how the swell of diplomatic and public support for the Palestinian cause in the wake of the latest Gaza war may be exploited to enable the PLO to withstand punitive measures, not to mention enforcing the state. This will become clearer if the PLO actually tries to wield the legal instruments it has begun to amass, in particular if it chooses to pursue Israel at the ICC after April 1 when adherence to the Rome Statute takes effect.
Furthermore, the implications have yet to be comprehended of today’s non-sovereign State of Palestine actually trying to implement any of the several dozen conventions to which it has already adhered, not to mention being held accountable for their application in areas under its jurisdiction. Israeli officials have been swift to remind the PLO that its leaders and institutions will also be fair targets for international lawfare, if that is to be the name of the game. So, it is hard to see how the advantages of adherence to the Rome Statute amount in the geopolitical balance of power to much more than imparting a sense of international legal correctness to the eventual state of Palestine.
However limited the outcomes of the PLO diplo-legal strategy might be, in truth the PA should not be criticized for pursuing this “doomsday option,” especially since many of its left-liberal critics and NGOs worldwide have bemoaned its delay in acting in this arena. But nor should great expectations be held as to the feasibility of evicting Israel from the Occupied Territories through legal instruments or by asking nicely and at no cost. And it can only be hoped that the efforts to be engaged in this battle will deliver more in terms of actual liberation of long-suffering Palestinians than the past years of building a phantom state that is there in all respects except reality, all the while keeping the peace with and for Israel.
The decision to join the International Criminal Court may represent a desperate attempt by the Palestinian leadership to salvage some of its tattered credibility. Ironically, it has done so by gambling on a project with its own uncertain legitimacy -- post-Cold War international criminal law.
Since the early 1990s, liberal interventionists in the West have strongly supported the establishment of international courts for mass atrocities, invoking the legacy of the post-World War II Nürnberg trials as a moment of accountability in the service of reconciliation, while promising to eliminate the unseemly one-sidedness and procedural short cuts of “victors’ justice.” The record has been mixed.
Successfully concluded international criminal trials over the past two decades have always depended on Western military intervention, as with special courts for ex-Yugoslavia and Sierra Leone, or been conducted in support of sitting regimes, as with the ad hoc tribunal for Rwanda or the ICC’s two convictions to date, both of rebels from the Democratic Republic of the Congo. The accusation that the ICC unfairly singles out Africans -- all of its active cases at the moment arise from the continent -- is correct but also obscures the fact that it is often African states themselves that are using the Court to extend and bolster their own authority against opposition forces, such as Uganda’s request that the ICC investigate Joseph Kony’s notorious Lord’s Resistance Army. As for governing elites, the ICC has so far failed to bring any to account on its own. In recent months, prosecutor Fatou Bensouda “hibernate[d] investigative activities” against the Sudanese president, Omar Bashir, for atrocities in Darfur and formally dropped charges against the Kenyan president, Uhuru Kenyatta, after witnesses withdrew or recanted their testimony. Without a strong political mandate -- provided either by a local consensus or dominant external players -- international criminal trials are essentially a non-starter. The hapless Special Tribunal for Lebanon shows that insofar as international courts are toys of the West, they are expensive, slow-moving ones whose masters tire of them rather easily.
Trials, however, are not the only metric for assessing the ICC’s performance. Recognizing its limited powers, the Office of the Prosecutor has instead launched prolonged inquiries – “preliminary examinations” that must precede opening formal investigations -- in a broader set of situations outside Africa, including the conduct of British forces in Iraq and the situation in Afghanistan, which potentially includes the US military. Critics decry the slow pace as foot dragging, but the Prosecutor probably regards keeping these inquests open as a way of prodding powerful states to mitigate their behavior -- threatening them not so much with actual criminal trials (which would never happen), but with the prospect of embarrassment.
The Prosecutor is likely to treat Israel in a similar fashion, to drag out proceedings as a way of showing that the Court is not focused solely on Africa and pressuring Israel to investigate crimes by its own forces. (The previous prosecutor, Luis Moreno Ocampo, basically did just that by taking his time to decide whether to investigate the 2008-2009 assault on Gaza.) But once Israel gets over its (racialized) outrage at the prospect of being grouped with African dictatorships rather than regarded as an upstanding member of Western civilization, it may eventually realize that the ICC is no sword of Damocles after all and call the Prosecutor’s bluff. Absent an effective mobilization by the Palestinian national movement and its allies, the Prosecutor will then be stuck with an unenviable choice -- either to let the case languish as yet another victim of the global double standard against weak African states, or to go ahead and issue indictments that will likely go unheeded, antagonizing the United States in the process. Either way, the Court’s credibility will suffer further. Mahmoud ‘Abbas will have reluctantly given over many of his chips to a player holding an empty hand.
Within the past fortnight the Palestinian leadership has undertaken several initiatives that, taken together, could spell the beginning of the end of Palestinian participation in the Oslo framework.
The most important of these is the apparently successful application to join the International Criminal Court in The Hague. The combination of Israeli, American and perhaps European retaliatory measures will, in the absence of energetic Arab support that is unlikely to materialize, paralyze the ability of the Palestinian Authority to manage indefinite occupation on Israel’s behalf and may lead it to collapse altogether. Alternatively, Israel may either conclude that the PA has outlived its usefulness and engineer its implosion or, in the wake of the upcoming Israeli parliamentary elections, offer the PA some of the powers revoked since 2000 and a new diplomatic initiative in exchange for a moratorium on internationalization.
Under normal circumstances, it would be reasonable to conclude that the Palestinians are finally emerging from the persistent vegetative state that has been the hallmark of the ‘Abbas era and are slowly but surely retaking the initiative.
These, however, are not normal circumstances. The Palestinian national movement no longer exists. What remains of the political system is hopelessly divided, fragmented and either in conflict with or entirely dependent upon its erstwhile allies. Perhaps most importantly, there is no strategy -- not even a bad one -- for reaping the minimum benefits of these initiatives. Under such circumstances, recent Palestinian moves in the international arena are more likely to be used as a battering ram by enemies of Palestinian self-determination than instrumentalized by Palestinians to weaken the stranglehold of occupation.
To be sure, anything that undermines Oslo and continued Palestinian participation in the occupation of Palestine is an absolute and unambiguous good. But in the absence of credible and unified leadership, a coherent national movement, and a dynamic and effective national strategy it is going to pose greater challenges than experienced heretofore.
The means of dealing with this conundrum and overcoming the potentially existential risks lurking around the corner are no different today than yesterday. As an absolute priority, Palestinians must compel their various leaders to commence the long-overdue process of national reconciliation. Absent that, it is difficult to be optimistic, or to take any of what is transpiring seriously.