DAY 123: Skunk and the ICC

March 9th, 2015 § 0 comments

I expect you, like me, were mesmerized by the recent spectacle of Jon Snow on skunk and his admission that he found it more scary than being in Gaza.

A propos, I’ll just – after a few more words on skunk, which has been on my brain (as they say) lately – insert my recent thoughts on the P.A.’s accession to the International Criminal Court, and the implications for international humanitarian law. It may never see the light of day in any more respectable forum. There should, of course, be dozens of hyperlinks in the text, but I can’t be bothered to supply them.

(Note to the IDF: I’d forget the idea of dumping skunk, skunkor let’s say THC, in the Gaza water supply – I’m thinking of the old urban myth about the CIA and LSD - on the hypothesis that the Gazans, like Snow, would OD on skunk and be scared out of their skulls. For one thing, they are’t that easily scared, since they have the ‘Snow experience’ of extreme bombardment every day. For another, there would need to be a water supply in the first place, and Israel isn’t about to supply that.)

[Begin article:]


(aimed at submission to some critical legal forum)

Are the rules of the game changing with regard to war crimes and impunity – and could the Palestine Authority’s accession to the ICC be the engine of change? There were enough war crimes committed during the Israeli ‘Operation Protective Edge’ in Gaza during last July and August to lead to such a hope.  Hanan Ashrawi set out the Palestinian Authority’s position back in July:

’We want to ensure that the people of Gaza have…a minimal level of a decent life. We cannot go back to the status quo ante. This is a unanimous position adopted by all Palestinians – that the conditions giving rise to this Israeli impunity and use of violence and recurrent pattern of closing down Gaza and then shelling and bombing it, that this has to stop.’

To recapitulate some notorious examples: the events of August 1st  and 2nd in Rafah, when , acting under the so-called ‘Hannibal Protocol’, ‘an artillery barrage and torrent of airstrikes killed 190 Palestinians in two days, hannibalaccording to Gaza human rights groups, after the suspected capture by Hamas fighters of 2nd Lt. Hadar Goldin’; and the eight attacks on family homes in Gaza, selected by Amnesty International, which caused the deaths of at least 104 civilians, including 62 children – Amnesty’s comment was that they were ‘grossly disproportionate and under international law they should have been cancelled or postponed as soon as it was evident that numerous civilians were present in the houses’.

The P.A. has finally signed up for the Rome Statute, and set in motion an action before the ICC. After what appeared a long delaying action, the P. A.’s accession was ratified (over strong American opposition) on the 2nd of January. On the 16th, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, 533950-bensoudadid indeed open a preliminary examination into the situation in Palestine. This will not be restricted to ‘Operation Protective Edge’; the P.A.’s legal team mean to raise –for example – the gross breach of the Fourth Geneva Convention involved in Israel’s illegal settlement programme over forty years, and the whole repressive structure of the occupation.

In fact, there is much more involved than the long-standing question of Israeli contempt for international law. Setting aside the cynicism which many readers of these pages may feel both about the P. A. image002_0(as a long-term enforcer for Israel and the United States) and the I.C.C. (as, so far, myopically obsessed with African crimes), the possible effects of bringing Israel before the Court raise the whole question of the reach of international humanitarian law. The TWAIL school represented by Anghie – and not only they – assert that the whole apparatus of IHL (of which  the ICC is a particular representative) is by its nature and history designed to define as ‘crimes’ only the massacres committed by colonial subject nations; the powerful, from Gaza to Afghanistan, Pakistan and Yemen, benefit from impunity.[1] Now, however, campaigners have turned to the crimes of the Middle East’s drone warriors and torturers, and they hope to gain a legal hearing in the ICC. In 2013 Amnesty International and Human Rights Watch combined to use the term ‘war crimes’ in relation to a catalogue of drone strikes. If Israel could face the ICC, might the U. S. Administration? The question is in the air. ‘Impunity’ has come under increasing attack through a series of cases in the U. S. courts, from Hamdan v. Rumsfeld to the two cases concerning Al-AwlakiAbdurrahmanal-aulaqi

Abdurrahman al-Awlaki

(Obama and Panetta); but without a serious approach to the ICC these courts are the only recourse available and their broad definition of ‘political’ considerations makes any challenge to authority almost impossible.[2]

The P.A. faces considerable risks in proceeding. While in the complex and rickety post-Oslo relationship of the two parties, Israel has no interest in undermining security cooperation with the P.A. or causing it to collapse, there are a raft of financial sanctions which could be applied both by Israel and by the U.S. – so effectively plunging the West Bank deeper in economic misery. In particular, a recent US law states that economic aid to the P.A. must be cut off in the event of a case being brought against Israel at the ICC – and the law contains no option for a waiver. On the other side, there is a new post-Gaza spirit of popular resistance, at a time when (outside the documentation of the Western media) violent repression and settler provocations are increasingly a daily feature of life on the West Bank. To quote the well-known independent spokesman Mustafa Barghouthi:

‘Nothing harms peace more than impunity for the war crimes that characterise the conflict, be it settlement expansion, indiscriminate attacks, collective punishment or the blockade of Gaza, to name but a few. By acting as a deterrent to such crimes, the ICC could discourage major impediments to a peace agreement.’

Feeling that they have finally nothing to lose, it could be that the P.A. have created ‘a moving snowball that can’t be stopped’[3].

In the terms coined by Amy Bartholomew (2006), any such action could be seen as an important round in the unequal contest between Empire’s Law and Law’s Empire – empire’s law being ‘those attempts by the U.S. to undermine the regime of “law’s empire”, that is the post World War II development of human rights and international law that foreshadowed (however imperfectly) a future order of democratic cosmopolitan law’.

This use of legal action as a ‘strategy of the weak’ was recognized as a danger by the U.S. Government; and it is attacked as ‘lawfare’ both in Israel and by the U.S. conservatives of the ‘Lawfare Project’; and indeed such a strategy could hardly aim higher than to bring world leaders before the ICC. It’s worth quoting an anonymous Israeli ‘expert’ (from the Jerusalem Post (2005)) whose claim is roughly that law is what you (that is, ‘Empire’) say it is:

‘International law is the language of the world and it’s more or less the yardstick by which we measure ourselves today. It’s the lingua franca of international organizations. So you have to play the game if you want to be a member of the world community. And the game works like this. As long as you claim you are working within international law and you come up with a reasonable argument as to why what you are doing is within the context of international law, you’re fine. That’s how it goes. This is a very cynical view of how the world works. So, even if you’re being inventive, or even if you’re being a bit radical, as long as you can explain it in that context, most countries will not say you’re a war criminal.’

Can the lawyers who oppose ‘Empire’ use the ICC as a forum to counter this strategy?

The next few months will give more clues about the Palestinian approach’s prospects for success – and, by extension, about the chances of other victims of Empire. Ali Abunimah of Al-Jazeera, a well-known sceptic about both the P.A. and the ICC, had some grudging words of encouragement following Ms Bensouda’s announcement:

‘A danger is that the PA will continue to use ICC membership as a tactical bargaining chip and will halt or withdraw proceedings in exchange for a resumption of the moribund “peace process.” But given the total impunity Israeli politicians and military leaders have enjoyed to conquer, destroy, settle and kill at will, many Palestinians are likely to welcome any development, however modest, that could eventually help them find justice.’




[1] The argument was fully rehearsed in Andersson et al. International Justice and Impunity, Clarity Press 2007.

[2]  The U.S. of course has walled itself off from the ICC by a series of legal instruments (acts of Congress and bilateral agreements), which remain a keystone of U.S. engagement in overseas operations.


[3] Al-Haq spokesman Shawan Jabarin,

[End of article]

Anyway – following on a previous discussion, I was watching Mr Snow on the couch with some friends in a rather glazed state (I mean me and my friends, Snow was pretty animated). And the subject came up of whether skunk was prohibited, haram, kosher, or whatever in Lent; or whether, whatever it was, one should give it up. This subject has inevitably been exhaustively discussed on the internet, of course: ‘I usually try and give something up, but i don’t think i’d give up weed. Lent is depressing enough already’ says a contributor on A non-rigorous analysis of these fora suggests that a large number of weed smokers are lapsed Catholics – can this be true, and what are the implications? Perhaps we should tell Jon Snow.

Greece has been much in the news, as we all applaud the efforts of the democrats to overcome the clutches of the German barbarians. For encouragement, here’s an early Greek account (Metrodorus) of a dinner party which ended badly.

Shed a tear as you pass by, for we here are dinner guests,
whom the house of Antiochus slew when it fell,
and to whom God gave this place as both
a banquet hall and a grave. Four from Tegea lie here;
twelve from Messene; five from Argos.
Half of the dinner guests were from Sparta,
plus Antiochus himself. A fifth of a fifth of those who perished
were Athenians. And you, Corinth, cry for only Hylas.

How many dinner guests?

For those who need cheering up – and who doesn’t? – here is Blondie’s ‘The Tide is High’ with the original Darth Vader video.Shame that all those guys are hanging around in the street instead of helping Debbie mop up.


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