With the International Criminal Court’s (ICC) Pre-Trial Chamber I ruling of 5 February 2021, a path is paved for the investigation of war crimes committed in the West Bank, East Jerusalem and the Gaza Strip in 2014. By recognising that its jurisdiction extends to the territories occupied by Israel since 1967, the ICC has also recognised Palestine’s sovereignty over these areas, albeit incidentally. The ruling should not, however, be read as a victory of law over violence. Rather, it is a humble victory in which law’s violence is momentarily suspended in favour of the legally oppressed.
Law and violence are intimately entwined in international law, but perhaps nowhere so clearly as in the Israel-Palestine conflict and the resulting legalised and violent oppression of Palestinian life. Palestinians have frequently found themselves in a legal bind. In her book Justice for Some, Noura Erakat demonstrates this legal bind through a series of historical-legal junctures, with perhaps the most evocative being the legal question of Israeli settlements. When Palestinians in the mid-20th century were driven off of their territory and property, their land was claimed as abandoned property for the purpose of establishing Israeli settlements. Palestinian refugees who later attempted to return to their land found that they were making illegal claims at the same time as the Israeli state had enacted a right of return for Jews. The question of Palestinian statehood has been in a similar legal bind. Those states aligned with Israel (like the US and Germany) insist that a recognition of Palestinian statehood can legally, historically, and morally not be justified. The state of Israel may protect its territorial integrity under the United Nations Charter, but the Palestinians may not.
On the seeming other end of the spectrum are those who recognise that certain Palestinian territories are occupied. While appearing more progressive, this has also caused Palestinian exclusion, as an occupied territory cannot itself be a state. Like the Palestinians who had been made refugees and could not legally reclaim their land, the Palestinian struggle for statehood has meant that the status of being regarded as stateless precludes recognition. This appears particularly ironic against the background that Palestine was recognised as a state party of the ICC in 2015 and that it gained state recognition (albeit non-Member observer status) at the United Nations General Assembly in 2012. The discussions at the ICC have shed light on the impossibility of this bind for Palestinians. More importantly, they have offered a way out of this bind by recognising that Palestinian statehood, for the purposes of the ICC, extends to the Palestinian Occupied Territories. From the perspective of the Palestinian struggle for self-determination it is a minor success if one puts the decision into plain English: Palestine has been incidentally recognised as a state after already having been recognised as a statewhen it acceded to the statute. More than anything else, it demonstrates the legal violence that Palestine is subjected to rather than demonstrating a victory of law over violence.
From here on, it is important not to place too great hopes into the potential of the ICC. Anything else would be disingenuous to the victims of the violence in 2014, before then, and ever since. The ICC itself does not bear the promise of emancipation. It has demonstrated its allegiance with political and economic power in multiple ways in the past. The most obvious of these is that its successful prosecutions have so far focused on only African individuals – most notably ‘warlords’. By indicating that these are the preferred defendants, the ICC has deepened racialised stereotypes of black violence. In its interventionist narrative, it has also incorporated the infantilising notions of African states. But its lack of emancipatory potential runs far deeper than this. By focusing on individual criminal accountability of atrocity crimes (genocide, crimes against humanity, war crimes), it also signals the relative inferiority of structural crimes. The focus on individual guilt of a few bad people almost entirely excludes, for example, institutional coercion and private corporate power. Think of the IMF’s structural adjustment programmes that left entire countries in a position of servitude to international capital; or think of private corporate power and the environmental harms caused by their extraction of resources. Furthermore, the ICC’s commitment to incarceration of individuals as a means to achieve peace should, even on the face of it, cause concern for those committed to an anti-imperial struggle. This is quite aside from the more practical aspects of ICC investigations in this particular case, namely that Israel controls access to the Occupied Palestinian Territories and therefore may hamper any efforts of ICC investigators to collect evidence. The US’s economic sanctions against ICC officials has recently illustrated how effective such restraint of access can be.
As we learn from Erakat in her work on Palestine, the law is invoked by lawyers, and although it is structurally and politically destined to benefit powerful states, it can also occasionally be operationalised as a counter-narrative. Why Palestine would want to be introduced into the so-called ‘family of nations’ that has systematically undermined it and legalised its oppression is a good question. Importantly, it is a discussion that Palestinians in the international legal order can only be a part of if Palestine is recognised as having a voice. In international legal terms having a voice is equated with being recognised as a state. Here lies the tactical decision of some lawyers to struggle for Palestinian self-determination, as occasionally political movements can mobilise law on behalf of the oppressed. The victims of the 2014 violence must take heart in the political movement, not in the workings of the ICC.
Christine Schwöbel-Patel is Associate Professor at Warwick Law School