Palestine and the ICC


 [This was submitted to a critical legal blog, but I haven’t heard from them so I expect it didn’t make the cut. So here it is, a couple of months old.]

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, according to Gaza human rights groups, after the suspected capture by Hamas fighters of 2nd Lt. Hadar Goldin’;


Operation Protective Edge: Rafah under attack

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, did 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.


The Bethlehem checkpoint – daily life under 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. (as a long-term enforcer for Israel and the United States) and the ICC (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 Antony 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 subject nations; the powerful, from Gaza to Afghanistan, Pakistan and Yemen, benefit from impunity.[1] Now, however, some 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-Aulaqi (Obama and Panetta); but without an approach to the ICC these courts are the only recourse available and the broad definition of ‘political’ considerations which prevails in the U. S. makes any challenge to authority almost impossible.[2] Still, other states (including the United Kingdom) have been involved in similar crimes; some are members of the ICC; and some of their crimes may eventually be justiciable.


For its part, 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 (ignored by the Western media) violent repression and settler provocations are increasingly a daily feature of life in Gaza, in the West Bank and in the flashpoints of East Jerusalem. To quote the well-known independent spokesman Mustafa Barghouthi (speaking in London):

It’s totally unacceptable to keep accepting Israel’s claim of self-defence. This is not self-defence. This is offence. Israel shouldn’t be allowed this level of impunity. Enough is enough. We have to take them to the International Criminal Court. The PLO must immediately sign the Rome Statute and take Israel to the ICC… Israel bombed, then they let ambulances and journalists come to the site, then they bombed again and again.

Feeling that they have finally nothing to lose, it could be that the P.A. have created (in the words of al-Haq’s Shawan Jabarin) ‘a moving snowball that can’t be stopped’.


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’. 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 P.A. 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. But see actions in the Pakistani courts against drone strikes


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