Should the Palestinians Seek Justice NOW at the International Criminal Court?
[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]
Weakening the Two-State Consensus
There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.
With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.
An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.
In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.
Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”
It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.
Recourse to the ICC: Pros and Cons
The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.
The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.
There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.
Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.
There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.
Conclusion
In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.
The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.
Erasing the UN
3 MarDonald Trump has articulated clearly, if somewhat vaguely and incoherently, his anti-globalist, anti-UN approach on foreign policy. For instance, in late February he told a right-wing audience at the Conservative Political Action Conference that “there is no such thing as a global anthem, a global currency, or a global flag. This is the United States that I am representing. I am not representing the globe.” A similar sentiment was expressed to Congress a few days later in a tone of voice and choice of words praised by media wonks as ‘presidential.’ On this occasion Trump said, “[m]y job is not to represent the world. My job is to represent the United States of America.” Such rhetoric coming from a normal American leader would probably be interpreted as an expression of geopolitical humility, implicitly rejecting the standard insistence on American exceptionalism, exemplified in recent times by the project to create and maintain the first global state in human history.
This potentially self-limiting language might even be understood as renouncing earlier claims to assert American global leadership as the keystone of world order. George W. Bush in 2002 gave this bold leadership claim a sharp edge when he insisted the that only the US model of market-based constitutionalism was a legitimate form of governance for sovereign states in the 21st century. Or even more grandiosely, in the spirit of Michael Mandelbaum and Thomas Friedman, that the United States as a consequence of its martial strength, technological prowess, democratic values and institutions, and skills of leadership provides the world with the benevolent reality of virtual ‘world government.’ Let’s face it, Donald Trump is not a normal political leader, nor is he someone disposed to embrace humility in any form, so we should take his pledge to represent American interests while leaving the world to fend for itself with many grains of salt, especially if we consider the specifics of the Trump worldview. What Trump seems to be offering is maximum disengagement from international and global arrangements designed to institutionalize cooperation among sovereign states, and that is where the UN figures in Trump’s unfolding game plan.
Even before being sworn in as president Trump engaged in UN-bashing on behalf of, and in concert with the Israeli Prime Minister, Netanyahu. His dismissive comment contained in a tweet is rather revealing: “The UN has great potential, but right now it is just a club for people to get together, talk, and have a good time. So sad!” Of course, we are not told what Trump thinks might bring into being this ‘great potential’ of the UN. Also not surprisingly, the tweet was provoked by Security Resolution 2334, adopted December 23rd by a 14-0 vote, which sharply criticized Israeli settlement expansion as unlawful and as creating a major obstacles to establishing peace with the Palestinians. The Obama presidency was sharply criticized by Trump and others, including many Democrats, for allowing passage of this resolution at the UN by failing to do what it had consistently done for the prior eight years, shield Israel from often fully deserved, and long overdue, UN censure by casting a veto. It seems that Trump, a bipartisan consensus in Congress, and the new US Representative at the UN, Nikki Haley evaluate the usefulness of the UN through an ‘Israel first’ optic, that is, the significance of UN is actually reduced to its attitude toward Israel, which is viewed through Israeli eyes, and is unmindful toward the wide spectrum of UN activities and contributions to human wellbeing.
It must be acknowledged that the Obama presidency did only slightly better when it comes to both the UN and Israel. True, Barack Obama in his annual addresses to the General Assembly affirmed the importance and contributions of the UN by concrete reference to achievements, and used these occasions to set forth his vision of a better world that included a major role for the UN. Also, Obama recognized the importance of the UN in dealing with the challenge of climate change, and joined with China to ensure a multilateralist triumph under UN auspices by having the 194 assembled government successfully conclude the 2015 Paris Agreement on Climate Change. However, when it came to war/peace issues such as drone warfare, threats of war directed at Iran, modernization of nuclear weapons, and the defense of Israel, the Obama Administration flexed its geopolitical muscles with disdain for the constraining limits imposed by international law and international morality. In this core respect, Trump’s approach, while blunter and oblivious to the etiquette of global diplomacy, appears to maintain fundamental continuity with the Obama approach.
With respect to defending Israel even when it faces responsible criticism, I can report from my own experience while serving as UN Special Rapporteur on Occupied Palestine, that the defense of Israel’s unlawful behavior within the UN during the Obama years was unconditional, and deeply irresponsible toward respect for international legal obligations, especially in relation to upholding international humanitarian law and norms governing recourse to non-defensive force. American chief representatives at the UN, Susan Rice and Samantha Power, both called for my dismissal from my unpaid post in vitriolic language without ever confronting the substance of my criticisms of Israel’s murderous periodic attacks on Gaza, its excessive use of force in sustaining the occupation, its expansion of unlawful settlements, and its discriminatory administration of the West Bank and East Jerusalem. I mention this personal experience to underscore the willingness of the Obama presidency to go all in with Israel despite the awkward fact that Obama was being harshly attacked in Israel, including by government leasers, and hence also in the US. Obama was being wrongly accused of being unfriendly to Israel as compared to earlier American presidents. Israel has high expectations that Trump will sway with the wind from Tel Aviv.
More to the point, Trump’s view of foreign policy at this stage appears to be a primitive mixture of state-centrism, militarism, nationalism, overall what had qualified until World War I as realpolitik. There was back then no UN, few international institutions, no international law prohibition on aggressive war, no Nuremberg Principles imposing criminal accountability on political and military leaders, no tradition of protection for international human rights, and no affirmation of the inalienable right of all peoples to self-determination. It was a Eurocentric state system that combined the interaction of sovereign states in the West with colonial rule extended directly and indirectly to most of Asia, Africa, and Latin America. Of course, now the colonial system has formally collapsed, China, Russia, and India have risen, Europe has declined, nuclear weapons continue to shadow human existence, and the specter of global warming dangles a sword of Damocles over the human condition. Trump seeks to restore a simpler world with his raucous rally cries of ‘America First.’ This is to be accomplished by carrying out a series of promises: to renegotiate trade arrangements, build walls, crush terrorism, terrorize undocumented immigrants, liberate police from accountability, bar Muslim immigration, and develop the world’s most feared nuclear arsenal. It is not a pretty picture, but also it involves a reckless disregard of the fragility of our interconnected and networked world order that mandates a globalizing framework for common problem-solving rather that a retreat to a glorious past that never was.
Of course, it would be misleading to leave the impression that the Trump worldview is bereft of any constructive thoughts about how to engage with the world. Trump’s controversial connections with Putin and Russia impart a contradictory impression: what is favorable is an evident interest in exploring prospects for a cooperative relationship, which goes against the grain of the American national security establishment, including several Republican heavyweights, which seemed likely in an expected Clinton presidency to be readying the country for a dangerous plunge into a second cold war. It would be ignited with reckless bravado by confronting Russia along its borders; in contrast, what is dubious about the Trump overtures to the Kremlin are the backdoor dealings with Russian officials during the presidential campaign and subsequently, reinforced by the ‘golden shower’ innuendo and unresolved concerns that Trump’s withheld tax returns might reveal awkward information about indebtedness or business dealings or both.
Whether Trump is going to abandon this effort to smooth things with Moscow under this pressure from the US intelligence and security bureaucracy will be a defining feature of whether his foreign policy gets early stuck in the Washington swamp, or risks the governmentally unsettling effects of discontinuity with the past. There are some cynical interpretations of Trump’s opening to Russia as primarily intended to set the stage for intensified confrontations with China. If this view is even partially correct it could easily generate a cold war of its own, although with new alignments. It might quickly lead to hot battlefield incidents that could further escalate, giving rise to renewed fears of nuclear war.
Trump occasionally expresses an appreciation of international cooperation for mutual benefit with other states, as well as recognizing the benefits of keeping traditional alliances (NATO, Japan, South Korea) alive and threatening those countries that menace the global or regional status quo (North Korea). What is totally absent is any acknowledgement of global challenges that cannot be met by states acting on their own or cooperatively through bilateral arrangements. It is here where the erasure of the UN from political consciousness is so troublesome substantively as well as symbolically. To some degree this erasure preceded Trump and is widespread. It has not been challenged as yet by even the Sanders’ end of the political spectrum in the US. I found it telling that Obama made no reference to the UN in his Chicago farewell speech, which can be most accurately understood as a more positive and polite version of Trump’s ‘America First’ engagement with the world.
Even better, on an abstract level, Trump expressed some sentiments that if concretized could overcome some of the forebodings being voiced here. In his speech to Congress on February 28th Trump said “[w]e want harmony and stability, not war and conflict. We want peace wherever peace can be found.” He went on to point out that “America is friends today with former enemies. Some of our closest allies, decades ago, fought on the opposite sides of these World Wars. This history should give us all faith in the possibilities for a better world.” If this outlook ever comes to inform the actual policies of the Trump presidency it would give grounds for hope, but as of now, any such hopes are mere indulgences of wishful thinking, and as such, diversions from the one true progressive imperative of this historic moment–political resistance to Trumpism in all its manifestations.
Dark lines of policy have also been set forth by Trump. The angry defiance of his Inaugural Address, the belligerence toward China, threats toward North Korea, exterminist language in references to ‘radical Islamic’ extremism and ISIS. Trump’s belligerence toward the world is reinforced by lauding military virtues and militarism, by appointing generals and civilian advisors to top positions, and by boosting the military budget at a time when the United States already spends almost as much on its military machine as is the total of military expenditures by all other countries, and has only a string of political defeats to show for it.
These contrasting Trump imaginaries create an atmosphere of foreboding and uncertainty. Such a future can unfold in contradictory ways. At present, the forebodings clearly outweigh the hopes. Although Trump speaks of fixing the decaying infrastructure of the United States and not wasting trillions on futile wars, especially in the Middle East, his inclinations so far suggest continuity in such brutal war theaters as Syria, Yemen, and Libya.
We have reached a stage of human development where future prospects are tied to finding institutional mechanisms that can serve human and global interests in addition to national interests, whether pursued singly or in aggregate. In this central respect, Trump’s ardent embrace of American nationalism is an anachronistic dead end.
What I find particularly discouraging about the present bipartisan political mood is its near total erasure of the United Nations and international law. These earlier efforts to modify and ameliorate international anarchy have virtually disappeared from the political horizons of American leaders. This reflects a loss of the kind of idealism that earlier energized the political imagination of those who spoke for the United States ever since the American Revolution. There was admittedly always much hypocrisy and self-deception attached to this rhetoric, which conveniently overlooked American geopolitical ambitions, slavery, and devastation visited on native Americans. It also overlooked imperial maneuvers in the Western Hemisphere and the ideologically driven foreign policy of the Cold War era that brought death, destruction, and despair to many distant lands, while keeping a dying European colonialism alive for many years by deferring to the warped logic of the Cold War.
Finally, I believe that the agenda of resistance to Trumpism includes a defense of the United Nations, and what its Charter proposes for the peoples of the world. We need a greatly empowered UN, not an erased UN.
Tags: America First, geopolitics, Israel First, nationalism, Trump worldview, UN, UN-bashing, US foreign policy