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.
Bolton’s Red Sky Worldview: ICC, International Law, and Iran
26 SepBolton’s Game: Not Sovereignty, Not International Law—Clearing the Path for U.S., Geopolitical Primacy
To be sure, on September 10thJohn Bolton, Trump’s National Security Advisor, pushed all the thematic buttons that might beexpected of a luncheon speaker invitedto address the Federalist Society, long known asthe ideological home of rabid advocates of the so-called ‘new sovereignty.’ The hallmark of this pre-Trump neocon law bastion of Scalia worshippers was their role in the career nurturing of such jurisprudential embarrassments as John Yoo and Jack Goldsmith. Yoo the notorious author of the torture memos and Goldsmith the public servant usually give credit forcrafting an expert approval text validating ‘extreme rendition’ of CIA suspects to notorious ‘black sites,’ known around the world as safe havens for torture, surely acrude instance ofex parte criminal legalism. It should be noted that both of these individuals are senior faculty members at two of America’s finest law schools, UC Berkeley and Harvard, both of which exhibit institutional pride in the fact of treating legal ethics as integral part of professional education.
John Bolton was the safest of choices as a featured speaker, having earned his Federalist Society credentials many times over. He seems perversely proud of leading the unprecedented effort on behalf of George W. Bush in 2002 to ‘unsign’ the Rome Statute, the treaty that brought the International Criminal Court (ICC) into force in 2002, and now has 123 sovereignstates as parties, including all NATO members except the U.S. and Turkey. At the talk, Bolton paused to boast of orchestrating this unusual move to highlight and underscore this repudiation of the ICC by the Bush presidency, and in the process, of the crusading success of a transnational civil society movement and a coalition of moderate governments around the world to institutionalize individual accountability of political leaders and military commanders for war crimes and crimes against humanity. It should be humiliating that such a global undertaking to strengthen international criminal law enforcement is regarded as posing a direct threat to Americans and governmental policy. It puts a preemptivetwist on the previous reliance on ‘victors’ justice’ to ensure that none of the Allied crimes during World War II would be subjected to legal scrutiny while the crimes of German and Japanese political leaders and military commanders were being prosecuted.
Actually, even if Bush had not bothered to have the Clinton signature removed, the U.S. would never in this dark period of anti-internationalism have joined the ICC. To become a party to the treaty would have needed the additional step of ratification of the Rome Statute, and that would require an affirmative vote of 2/3rds of the U.S. Senate. A favorable outcome would have been even more unlikely than for Donald Trump to nominate Anita Hill or Robert Mueller as his next choices for the U.S. Supreme Court. In this sense, only the up tempo language of Bolton is notable for its willingness to denigrate and even smear the ICC.
Slick Willy Clinton had his own reservations about the treaty and never took the normal step following an official signature of a negotiated inter-governmental agreement of submitting it for ratification. Indeed, it is a technical violation of customary international law that imposes a good faith obligation on governments to seek formal adherence of signed treaties in accordance with constitutional procedures of the particular state. In other words, even the supposedly liberal side of American political life has opted out of its earlier tradition of supporting the institutional development of the Rule of Law on a global level as an aspect of its commitment to the role of law and institutions as essential ingredients of a peaceful and just world order.
Congress removed any doubt as to its hostility toward the ICC when in 2002 it passed the American Service-Members’ Protection Act, authorizing the President to use all necessary means, even force, to prevent prosecution at The Hague of Americans accused of war crimes or crimes against humanity. What is especially disturbing about such a slap at criminal accountability is the absence of slightest show of concern as to whether the allegations in a particular case were well grounded in evidence or not. When Bolton alluded to this bit of ultra-nationalism he appropriately noted that the legislation enjoyed bipartisan support, which suggests that the American posture of claiming ‘lawless geopolitics’ for itself is a fixed feature of world order for the seeable future no matter who occupies the Oval Office. It is ironic that while criminality is ensured of impunity, the practice of impunity, a dubious encroachment on the logic of legality, is not only claimed but offered that most unusual feature of international enforcement.
Bolton implied that the problems of criminality in world affairs are associated with the leaders of the foreign adversaries of the United States, identifying such individuals as Saddam Hussein, Hitler, Stalin, and Qaddafi. His assertion implied that the good behavior of the United States and its allies was such as to be inherently benevolent and the bad behavior of its adversaries would require more than law to deter: “The hard men of history are not deterred by fantasies of international law such as the International Criminal Court.” We can only meekly ask, “Are the supposedly soft men of history, such as Trump or G.W. Bush, any less undeterred?” “And why should we ever expect these hard men to be deterred if the ICC and international law are but ‘fantasies.’
Getting back to Bolton’s luncheon remarks, his own summary of his feverish assault on the audacity of the ICC to consider investigating Israel’s international crimes, and the alleged crimes of the Taliban and the United States in Afghanistan reads as follows:“This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom. We will stand up for the US constitution abroad, just as we do at home. And, as always, in every decision we make, we will put the interests of the American people first.”
These are predictable sentiments, given the occasion and taking into account Bolton’s long advocacy of a militarist foreign policy that disregards the restraints of law, morality, and political prudence. It isthe ethics and politics of this disregard that is Bolton’s realmessage. We should be attentive to this real message hidden within the fiery ‘sovereignty, first’ verbiage, which is that the geopolitical practices of the United States will not be subject to legal accountability no matter how flagrant the violation of fundamental norms might be in the future. Bolton may overstep the bounds of the liberal order when he attacks the ICC as an institution, which had not been previously treated as a threat to American foreign policy. Only recently did it dawn on Washington policymakers that the ICC might at some point actually challenge what the U.S. and its allies, most notably Israel, are doing in the world.
Previously, the U.S. was a supporter of criminal accountability of foreign leaders, especially if they were adversaries of the U.S.. It should be remembered that even during the Bush presidency, the government sent dozens of government lawyers to Iraq to help prepare a war crimes prosecution of Saddam Hussein and his entourage after their capture. This capture occurred in the course of a war of aggression initiated against Iraq in 2003 without any prior provocation. The U.S. attack, regime change, and long intrusive occupation took place, it should be recalled, despite the failure of the U.S. Government to secure the support of the UN Security Council despite a feverish attempt to gain authorization.
In other words, so far as even the Boltons of this world are concerned, there is nothing wrong with criminal accountability of leaders and military personnel so long as the indictments, prosecutions, and punishments are confined to enemies of the United States. Such a self-serving geopolitical appropriation of international criminal law should not be confused with legitimate law, which presupposes that the rules, norms, and procedures apply to all relevant actors, the strong as well as the weak, the victors as well as the defeated, geopolitical wrongdoers as well their adversaries.
What is sad about the Bolton worldview, and indeed the new sovereignty ideologues that shape the public image of the Federalist Society, aside from its influence in the Trump Era, is that it completely misunderstands the relevance of international law in this period of global interdependence and planetary challenge. State-centric world order as beset by geopolitical rivalries is a blueprint for civilizational collapse in the 21stcentury, and probably represents the worst possible way to uphold core sovereign rights and national interests over time.
What is still sadder is that the Bolton/Trump worldview, which seems so outlandish and anachronistic is not that extremist, compared to Democratic establishment approaches, when it comes to behavior. It represents a surreal rhetorical extension of the bipartisan consensus that is complacent about the failures of the neoliberal international order, including especially the destructive impacts of predatory globalization on democratic forms of governance, on safeguarding of social and economic rights, and on ecological sustainability.
As many have noted Hilary Clinton’s push toward a confrontation with Russia was more in keeping with Bolton’s preferred foreign policy than the more accommodationist proposals of Trump during his presidential campaign. It is against such a background that I reach the lamentable conclusion that when it comes world peace and global justice the Democratic Party establishment has little to offer when it comes to foreign policy, and may be more inclined to initiate wars and raise geopolitical tensions than even their reactionary and militarist Republican rivals. Bernie Sanders, although international affairs is not his strong suit, at least gestured toward a less militarist and dysfunctional foreign policy. For the Democratic Party to generate enthusiasm upon American youth and the deeply discontented in the country it must reinvent itself by embracing progressive and forthcoming policies than in the recent past and positions that are more constructive and programmatic than even the Sanders foreign policy. Without such bold moves there will be a loud sigh of relief when Trump loses control of Congress in November, and even louder one when Trump leaves the White House, but the American ship of state will still resemble the maiden voyage of the Titantic.
As if to confirm the analysis above we should take account of Bolton past warmongering toward North Korea including advocating a preemptive strike, and recently articulating grossly unlawful threats of force directed at Iran. It should be appreciated that contemporary international law, as embodied in Article 2(4) of the UN Charter forbids threatsas well as uses of aggressive force.
Such a prohibition underlines the criminality of Bolton’s recent formulations of military threats directed at Iran: “I might imagine they [“the mullahs of Tehran”] would take me seriously when I assure them today: If you cross us, our allies, or our partners; if you harm our citizens; if you continue to lie, cheat and deceive, yes, there will indeed be hell to pay.” Such chilling words must be understood in the context of Bolton’s past advocacy of bombing Iran and of the Trump approach to the region that can be summarized in a few words: ‘do what Netanyahu wants.’
Even if war and aggression do not actually occur, and we must pray that they do not, this kind of geopolitical bullying by a leading official of a country that has up to one thousand military bases spread around the world should be criminalized, and not just criticized as intemperate.
Tags: Bolton, Bolton Worldview, Federalist Soceity, geopolitical bullying, International Criminal Court, Iran, Threats