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.
Global Justice in the 21st Century 
Required Reading: Noura Erakat on Palestine and Law
17 Jul[Prefatory Note: The following review was also published today by Mondoweiss, an outstanding online news and opinion service addressing important international and domestic issues, with special attention to the following: the Palestinian national struggle; Israeli denial of basic Palestinian rights; U.S. foreign policy in the Middle East; and various efforts by Palestinians to promote global solidarity initiatives, and militant Zionists and the Israeli government to discredit, and even impose punitive policies on initiatives and even advocacy critical of Israeli policies and practices.]
Justice for Some: Law and the Question of Palestine. By Noura Erakat. Stanford University Press, 2019.
I make no claim to approach this book with an open mind. Making a fuller disclosure, I acknowledge with some pride that I have endorsed Justice for Some even before it was published, and my blurb appears on its back cover. Beyond this, two months ago I took part in a book launch at George Mason University where Noura Erakat is on the faculty. My effort in this review is not to make a calm appraisal of the book’s strengths and weaknesses, but rather to celebrate it as a major scholarly contribution to the critical literature devoted to resolving the Israel/Palestine struggle in line with the dictates of justice rather than by a continuing reliance on muscular weight of subjugation as augmented by geopolitics. And accordingly, to seize this opportunity to urge a careful reading of Justice for Some by all those interested in the Palestinian struggle as well as those curious about the way law works for and against human wellbeing as revealed by its use in a sequence of historical and societal circumstances.
Erakat focuses on the deformations of militarism and geopolitics that have been inflicted on the Palestinian people as a whole, making readers aware of how ‘law’ and injustice have all too often collaborated through the decades. Erakat brilliantly offers readers this illuminating critical jurisprudential exposition, but she does not stop there. Justice for Somealso partakes of a constructivist methodology in the following sense. While Israel has cleverly deployed law to oppress the Palestinian people, Erakat’s text also explains to readers how law can and is being used on behalf of justice, serving the cause of Palestinian empowerment as integral to the ongoing emancipatory struggle of the Palestinian people.
In a sense my own partisanship on behalf of the Palestinian struggle parallels that of Erakat who makes evident from the Preface that her intention is to depict Palestinian territorial and national victimization as transparently as possible through the optic of law and human rights and to deplore the Israeli use of legal regimes, procedures, and tactics to carry forward the Zionist project at the. cruel expense of the Palestinians.
Justice for Somerepresents an important trend in scholarship, which seeks to combinge academic objectivity with undisguised ethical and political engagement. Such a combination of goals might seem appropriate when dealing with a struggle as poignant as Israel/Palestine, but it has not been so treated. In mainstream scholarship. The academic canon on scholarly writing continues to favor the posture of neutrality or supposed objectivity as to policy implications, which is but a professional mask worn by naïve or cynical academicians unwilling to own up to their own subjectivities of perspective. Worse than this, the Zionist influence over scholarly and media discourse on this subject-matter is so great that forthright writing of the sort contained in Erakat’s book is censored, self-censored, and attacked as ‘biased.’ For the mainstream, Erakat’s originality and the persuasiveness of her analysis is ignored if she is lucky, and if not, demeaned. Such authors are often attacked as representatives of the so-called ‘New Anti-Semitism,’ that is, a label used to discredit writing and writers critical of Israel’s policies and practices by maliciously merging criticism with hatred of Jews. This deformed equation offers us a definition of hate speech that amounts to a death sentence for freedom of expression. It is a national disgrace that American legislative bodies at the state and federal level are swallowing this kool aid!
It is difficult to convey Erakat’s jurisprudential originality without extensive discussion, but I will try. Much springs from her bold assertion “I argue that law is politics.” (4) By this she means, put crudely, ‘the force of law’ depends on ‘the law of force,’ that is legal rights without the capability to implement the law to some degree is without effect or its insidious effect is to give legal cover to inhumane behavior. Or as Erakat puts it metaphorically, politics provides the wind that a sail needs for the boat to move forward. At the same time Erakat when discussing Palestinian rights and tactics is insistent that the advocacy of ‘force’ does not imply a reliance on or a call for violence. Her tactical affirmation of nonviolence becomes explicit when she discusses approvingly the political relevance of the BDS campaign as well as in her emdorsement of various efforts to discredit Israel at the United Nations and elsewhere. Overall, Erakat reasons persuasively that Israel has been more adept than the Palestinians in making effective use of law, partly because the wind is at their back due to their linkages to geopolitics, especially the United States, but also because Israeli legal experts have done their ‘legal work’ better than have the Palestinians. Erakat’s book can be read as a stimulus to Palestinians to make better use of what she calls ‘principled legal opportunism.’ (19) In a larger sense, Israel due to geopolitical backing and discourse control has succeeded in having its most flagrant international crimes including the excessive use of force, collective punishment, and state terror ‘legalized’ under rubrics of ‘security’ and ‘self-defense,’ open ended legal prerogatives inherent in the very notion of a sovereign state. In contrast, Palestinians exercising an entirely justifiable right of resistance even if exercised against military targets is internationally criminalized and Palestinian behavior is characterized as ‘acts of terror.’ Israel’s most sinister ‘legal’ trick has been to defy international law repeatedly and flagrantly without suffering any adverse consequences. This dynamic of defying the law can be illustrated by Israel’s dismissal of the World Court Advisory Opinion of 2004 despite the agreement of 14 of the 15 judges (does it surprise anyone, that the lone dissenter was the American judge?) that building the separation wall on occupied Palestinian territory violated the basic norms of international humanitarian law, including the Geneva Conventions (1977).
Erakat also deserves praise by maintaining a scholarly tone while not mincing her words or becoming entrapped in the often fuzzy language of law. The question of language is crucial to her understanding of the disjunctions between law and justice that have deprived the Palestinian people, and their nation, of the basic rights for more than a century. Erakat is straightforward in a manner of very few international law scholars that the issues at stake arise can be only properly evaluated if fully contextualized historically and ideologically. Following Anthony Anghie, and several others, Erakat deems it essential to expose the roots of modern international law as reflective of a legal framing that served to legitimate European colonialism and its practices. She provocatively extends this generalization to Israel, identifying it as the last ‘settler colonial’ state to be established. I would add that Israel was established despite the powerful anti-colonial current of history that has flowed in one direction since 1945.
Erakat is equally prepared to identify the Israeli prolonged occupation of Palestine following the 1967 War as having become ‘annexation.’ She also affirms the view that Israel’s manner of controlling the Palestinian people through political fragmentation and the instrumentalities of law is a form of ‘apartheid.’ In critical and constructivist approaches the avoidance of legal euphemisms is central to the central undertaking of liberating legal mechanisms from the machinations of states. What truth-telling language does is to see through the legal masquerade so as to illuminate the moral issues at stake. This linguistic surgery is a prerequisite to elucidating the relationship of law to justice and injustice not only with respect to Palestine, but in relation to particular issues, whether involving international migrants, abused minorities, or peoples denied self-determination.
Justice for Somehelped me realize that this core sense of law as an inevitably politicized instrument of control and resistance can be at odds with the idea that I emphasized earlier in my own legal writing, that the true meaning of legal norms can only be discerned by their proper interpretation. I argued against the Vietnam War on this basis, contending that the American role entailed uses of force in violation of the UN Charter and international law governing uses of force, and that this argument was legallysuperior to the justifications being set forth by the U.S. Government and its apologists. This regulative (or hermeneutic) paradigm reflects the rhetoric of international law and the way lawyers habitually address controversy, including the modes of legal reasoning used by judges in tribunals, whether domestic or international, to explain and justify their decisions. It is especially applicable to the use of international law in statecraft to validate or invalidate contested behavior, indirectly reflecting both the intensity of the political winds filling the sails of the ship of state, but also the sophistication and motivations of whoever is doing the lawyering, and for whom.
Against the background of this understanding, what Erakat seeks and achieves is less about the emancipatory interpretation of legal norms and more about allowing us to grasp the manipulative nexus that underlies international legal discourse, and shapes political patterns of control and resistance. The regulative paradigm is complementary and backgrounded as Erakat’s overriding purpose is to develop a comprehensive rationale for a political and normative paradigm that fits the reality of the Palestinian and similar struggles for basic rights, especially that of self-determination, better than do traditional approaches. These paradigms do not necessarily contradict one another, but rest on differing functions of law and lawyers in various contexts, and from a jurisprudential perspective can be looked upon as complementary. Erakat’s undertaking is less concerned with understanding the way the world is, than how it ought to be. governed, and how law and lawyering can (on cannot) make this happen. In this sense, the defining spirit of Noura Erakat’s book calls to mind that famous remark of Karl Marx: “Philosophers have hitherto only interpreted the world in various ways; the point is to change it.” [Theses on Feuerbach.
Tags: Advocacy Scholarship, Law & Politics, Law and Justice, Noura Erakat, Palestine and the Law, two-state consensus