With international law under siege, can the ICC bring justice to Palestinians?

Palestinian demonstrators stand before the images of Benjamin Netanyahu and other Israeli leaders during (Nasser Ishtayeh - Flash90)

Amjad Iraqi

+972 Magazine  /  January 13, 2020

As the ICC prosecutor’s investigation awaits a green light, Palestinian experts reflect on what the legal battle portends for their struggle.

In a surprise statement last month, Fatou Bensouda, the chief prosecutor of the International Criminal Court at The Hague, announced that there is legal basis to probe Israel and Palestinian groups over war crimes in the West Bank (including East Jerusalem) and the Gaza Strip, and that her office was ready to investigate the matter.

While Israeli and U.S. officials condemned the news, Palestinians praised it as a major step in the fight for accountability and justice. Yet many remain concerned by one caveat: the prosecutor asked the ICC’s pre-trial chamber to “confirm” that Palestine was indeed a “state,” a status it has held since it was officially recognized by the UN General Assembly in 2012. Without that approval, the ICC may not have the jurisdiction to carry out its work. The chamber has till April to give its answer.

The announcement has stirred many questions and mixed reflections among Palestinians. Why is Palestine’s legal statehood still in question? What does this mean for the Palestinian struggle moving forward? And why did it take so long for the prosecutor to support an investigation, despite an abundance of evidence?

“The court should have dealt with the question of Palestine’s jurisdiction and permissibility in the very first stages of the preliminary examination, in line with the Rome Statute,” says Rania Muhareb, a legal researcher and advocacy officer at Al-Haq, a Ramallah-based human rights organization. Given that the prosecutor herself greenlit Palestine’s eligibility as a state, “It’s surprising that this question is still being raised after five years.”

The preliminary examination is the initial stage to find “reasonable grounds” that war crimes or crimes against humanity were committed in the occupied territories since Jun. 13, 2014 (the starting date requested by the Palestinian Authority when it acceded to the Rome Statute, the court’s founding treaty). The full investigation, if commenced, could lead to indictments and eventual prosecutions of senior Israeli and Palestinian officials, commanders, and other key figures.

Diana Buttu, a political analyst and former legal advisor to the PLO, acknowledges the possibility that Bensouda, whose term ends in June 2021, may be “kicking the can down the road” to avoid personally delving into the controversial politics of the conflict — a tactic that her predecessor, Luis Moreno Ocampo, was accused of during his tenure. But Buttu thinks that Bensouda is in fact trying to move things forward because the prosecutor recognizes the conflict’s worsening trajectory.

Palestinians check the destruction following an Israeli air strike, in Khan Yunis in the southern Gaza Strip, on November 14, 2019. (Abed Rahim Khatib/Flash90)

“She could have just sat on the case for years,” says Buttu. “But I think the reason she’s not doing so is because she sees just how extreme things are becoming around Palestine and wants to send a signal to Israel and the international community that if they don’t want something to be done at the level of the ICC, then they’re going to have to do something at the political level.”

In this respect, Muhareb and Buttu agree that the “confirmation” could simply be a way to make Palestine’s statehood as ironclad as possible so that it would no longer be a subject for debate — an area that Israeli authorities have hoped to use to bog down the process, and which Bensouda alluded to by citing the case’s “unique and highly contested” issues. Even so, stresses Muhareb, it should not justify further delays while crimes are ongoing and victims are left without redress.

Political interference

Even with the legal proceedings going forward, the experts warn that heavy political pressure against the court could prolong the process, interfere in the investigation, and block the arrest of indicted suspects in the future. This pressure is principally coming from Israel and the U.S. — neither of which are signatories to the Rome Statute and both of which are openly undermining the court (the Trump administration has denied visas to Bensouda and other ICC personnel for investigating U.S. war crimes in Afghanistan).

European reactions have also been apprehensive, if not antagonistic, toward the ICC campaign. Despite proclaiming their commitment to international law, European governments have discouraged Palestinian efforts to actually enforce that law, including through sanctions and accountability measures. Having invested nearly three decades in the comatose “peace process,” they are largely opting to “maintain business as usual,” says Buttu — to criticize the occupation while preserving their close relations with Israel.

As such, the Palestinian Authority would have to be firmly committed to the ICC process to withstand these pressures. But for some observers, the PA has not yet proven up to the task. “The legal team is handling this as they should be,” says Noura Erakat, a Palestinian-American legal scholar. “My concern is about who oversees the legal team — the political leadership — and they’re handling it poorly.”

Erakat explains that there is a divergence in the way that Palestinian actors are approaching the ICC. For the past three decades, grassroots and civil society groups like the BDS movement have foregrounded international law in the Palestinian discourse “as an alternative to the political train wreck being led by the Palestinian Authority,” after it signed the Oslo Accords and effectively facilitated the Israeli occupation through security coordination, economic arrangements, and more.

The PA, she says, has since adopted the same legal discourse, but for different agendas. “For the leadership, it’s a politics of acquiescence, to assert its authority and political positioning. For the people, it’s about fighting for their full rights.”

Buttu is similarly sceptical about the Palestinian leadership’s ability or willingness to withstand foreign pressure. “They’ve been told that the ICC is a red line, and that if they go forward, it will incur consequences on the PA.” This, for Buttu, threatens to repeat the PA’s failure to launch stronger political and diplomatic actions after the International Court of Justice issued an advisory opinion in 2004 that labelled Israel’s separation wall — and its occupation as a whole — as illegal. Then as now, she says, the PA was told by foreign sponsors that “It’s okay to highlight things as illegal, but to hold Israel to account is a completely different matter.”

This, argues Erakat, is precisely why the political strategy should be at the forefront of the Palestinians’ legal activism at the ICC. “If Israel is being investigated, then every Palestinian embassy or mission should be holding teach-ins, speaking on university campuses, and doing 101 courses… You want to secure political victory even in the event of a legal defeat — that should be the guiding principle.”

Palestinian public engagement

The political price of legal action is internal as much as external, as the ICC is also examining Hamas, Islamic Jihad, and other Palestinian groups for suspected war crimes, including rocket attacks aimed at Israeli civilians and torture of Palestinians. While their inclusion ensures accountability for all crimes across the board, it is unclear how it will affect Palestinian national politics, given that the Fatah-led PLO and Hamas have failed to reconcile nearly 13 years after the latter took control of the Gaza Strip.

Ironically, Hamas has welcomed Bensouda’s announcement as “the start of the penalization of the occupation” — without mentioning that her sights were set on the organization as well. This is also despite the fact that, based on the experts’ impressions, the prosecutors’ statements appear to be drawing “parity” between the actors to the point that it “looks like the first people to be prosecuted are going to be Hamas officials,” observes Erakat, and thus threatening to gloss over the asymmetric nature of the conflict.

For now, the ICC does not appear to be a make-or-break matter between Hamas and the PLO — though that may eventually be put to the test. “Does the PLO want to see Hamas convicted for war crimes? I’m not sure,” reflects Buttu. “It’s a slippery slope if one party that is viewed as fighting for freedom is put on par as an actual state actor.” Either way, she says, reconciliation does not seem to be approaching any time soon: “If the various attacks on Gaza didn’t bring the parties together, then nothing will.”

Compounding this political fracture is the absence of engagement with the wider Palestinian public around the legal battle at The Hague. In Erakat’s view, the community “has not been educated about the details of the Palestinian submissions to the ICC. There’s no media campaign, grassroots activity, or peoples’ tribunals, to learn how the law is going to intersect with a mass grassroots movement.”

This lack of engagement, Erakat argues, is undermining the purported purpose of the legal activism. “The ICC process is so disempowering to the affected population. If anything, it should rehabilitate the survivors, but they’re not being part of the conversation. This should be an opportunity to share their stories, to speak to the rest of the world, to challenge the illegality of the siege, to lift movement restrictions.” It cannot simply be a “specialized task for the lawyers,” she stresses.

Muhareb points out that the ICC has in fact created an outreach mechanism for Palestinian victims to file their complaints, which civil society organizations are helping to facilitate. Strategies are also being developed to disseminate information about the ICC to the wider public, though these will not go into full force until a full investigation is officially opened.

Still, Muhareb agrees that there are serious misunderstandings among the public and in the media about the ICC, “to the point that we are having unrealistic expectations about what the court can actually do for Palestinians.” For example, the fact that the ICC’s scope is limited to the occupied territories, and specifically to crimes committed only after 2014, means that many policies and practices committed in the past, including against Palestinians inside Israel and refugees in exile, will be excluded.

Muhareb adds that while the prosecutor recognizes that war crimes have been committed in Palestine, she has said nothing about “crimes against humanity,” such as the crime of apartheid, which the PA and civil society groups have also charged in their submissions to the ICC. This threatens to erase the context behind Israeli violence on Palestinians: “We know that there’s a systematic policy driving against us, so to only look at war crimes without their institutionalized character is a problem.”

Making international law matter

Despite its limitations, the experts agreed that the work at the ICC does have a significant impact. At first glance, the Israeli government is publicly defying the court, with officials disparaging the prosecutor’s decision as biased and even as “pure anti-Semitism,” in Netanyahu’s words. However, the threat of prosecution and the pariah status it brings does “have reverberations inside Israel,” argues Buttu.

One indication of this is that the Israeli government has so far refrained from demolishing the West Bank hamlet of Khan al-Ahmar, despite repeated threats to destroy it with the stamp of approval from the High Court (Bensouda herself explicitly warned Israel that doing so could be considered a “war crime”). Moreover, for all of the Israeli government’s talk of de jure annexation of the West Bank, it has yet to officially act on its words; even Israel’s attorney general has warned that such moves will expose it to investigation. Though limited, the fear of the court is having a “deterrent effect,” says Buttu.

Erakat adds that these legal actions can further serve as an energizing agent for Palestinian activism on the ground. “It’s a reminder that Palestinians are not powerless. They sit in the driver’s seat and can represent an entire international community that is also fighting for the principles of the rule of law.” That delivers an important message to the world: “If anyone thinks that the Palestinians are dormant, then they’re not paying attention.”

All three experts also agreed that there was something much larger at stake in Palestine’s case: the very value of international law. With rising authoritarian and right-wing movements worldwide, international law has become increasingly cast aside and crippled by disillusionment over what it can achieve for oppressed groups.

Muhareb acknowledges the public’s pessimism, yet emphasizes that it is not a lost cause. “I understand that Palestinians are losing faith in the international system. But the problem isn’t international law itself — it’s the lack of enforcement. By tackling Israeli impunity, we can protect Palestinian rights.” Israel’s own backlash demonstrates this: “It means the process we’re seeking is effective. It tells us that we’re heading in the right direction, and that it can make accountability possible.”

“Our mistake,” recognizes Buttu, “has been to focus exclusively on international law because it is one of the few tools we have to cry out to the world that what Israel is doing is wrong. But do we actually need a law to say it’s wrong to demolish a home? To steal people’s lands?”

Nonetheless, for Buttu, Muhareb, and Erakat, Palestine stands as a microcosm of what the abandonment of international law could portend. The U.S.’s brazen support for Israel’s annexationist goals — including the relocation of its embassy to Jerusalem and recognition of Israeli sovereignty in the Golan Heights — are glimpses into the future.

“If we go back to the system whereby states are allowed to steal land and more, the result is that we’re all living in a world where only might is right,” says Buttu. “If we don’t push for accountability, then this is the path we’re going down — one of lawlessness and the undoing of the international legal order.”

Amjad Iraqi is an editor and writer at +972 Magazine;  he is also a policy analyst at the think tank Al-Shabaka, and was previously an advocacy coordinator at the legal center Adalah; he is a Palestinian citizen of Israel, based in Haifa