02 Oct Handcuffed by Statehood: Justice and Palestine
Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas’ polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night.
It really wasn’t supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn’t still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is as a result of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established.
The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible…stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.”
To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC’s Rome Statute, after all, was negotiated by states and nations only come under the Court’s jurisdiction if they refer themselves or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light.
In 2009, Palestine filed an official declaration at the Court recognizing its jurisdiction. However, despite having accepted arguments on the question of Palestinian statehood, ICC Prosecutor Luis Moreno-Ocampo has simply decided to sit on the case. There are those who argue that the US, whose relationship with the ICC has moved from outright hostility to open engagement, has quietly instructed Moreno-Ocampo not to proceed on the file. It is hard to dismiss such claims – the US would have much to lose with yet another international actor complicating peace in the Middle East and it would be a shock to no one if they had quietly expressed such sentiments to the Court. Further, how can it possibly take two years for the Office of the Prosecutor (OTP) to come to a verdict as to whether it can open an investigation in Palestine or not? It is possible that the Office of the Prosecutor deemed deciding on the issue and potentially rocking the boat to be too costly. If this is the case, however, then the ICC is practising some form of political pragmatism where it calculates that the only politically feasible action is to remain silent.
Justice in Palestine has less to do with justice than politics. Recent events and reactions regarding Palestine’s application to the UN for recognition make it clear that we are nowhere near delivering justice on the basis of our responsibility to some abstract global citizenship. If we take our liberal cosmopolitan obligations and responsibilities seriously, then we should look at ourselves in the mirror and realize that some of humanity’s citizens have more rights than others. Some citizens are not just worse off but simply treated as being worse, as being less.
The case of Palestine perhaps exposes the hidden power inequalities within global liberalism and liberal cosmopolitanism. Those people in the most sensitive geopolitical regions would receive the benefits of a liberal cosmopolitan world last and not because they wanted it, but because, in some way they were “granted” it. Neither Palestinians, nor, frankly anyone in the world should be granted the ability to achieve justice. They should already have it.
Liberal cosmopolitanism is, in the end, an attractive political and moral trajectory. It may be the best we’ve got and this post is by no means intended to discard it. On the contrary, only by understanding the work that remains to be done can a truly ethical global community emerge, one that would allow all of those international criminal justice dreamers to sleep just fine.
Exactly. The central claim of my master thesis was that “individuals should have the possibility to bring claims against states, their own or foreign, at international courts, enabling them to compel states to do, or refrain from doing, certain things, or to compensate them for damages, or for violations of their rights.” If Palestinians could sue Israel at an international court, and force Israel to leave the occupied territories and stop the human rights violations, we would have justice by now.
By the way, what Abbas did was the smartest thing he could do, and the last resort. Otherwise the settlers would build the whole West Bank full with settlements, making the existence of a Palestinian state almost impossible.
If Palestinians could sue Israel at an international court, and force Israel to leave the occupied territories and stop the supposed human rights violations, they might have to face the fact that their problems are mainly the result of their own behavior. But they could always distract themselves by trying to “liberate” the remainder of “Palestine” not in their grasp.
@Edward
When the British arrived in Palestine in 1917, the Jewish minority was about 10% of the population. Palestine was an Ottoman colony and therefore, according to international law, the majority of the population had the right to external self-determination, meaning the right to a state of one’s own. During decolonization the principle of uti possidetis was applied, meaning that the administrative borders of the colony would be the borders of the new state. Minorities had to accept to live in the new states. Therefore the Arab majority in Palestine had the right to a state of their own and the Jewish minority had to live the new state. That means that what happened next was an invasion of European Jewish colonists that created a state where others had the right to have a state. Therefore the problems of the Palestinians are not “the result of their own behavior” but the result of the behavior of their invaders.
At the time the Mandate for Palestine was set up there was no established right of self-determination. The Mandate was not in violation of international law. The Balfour Declaration did not create a Jewish state in the Palestine territory but merely promoted settlement there, and the land for the settlements was purchased from Arab owners who were willing sellers. The problem was that the Palestinian Arabs did not want Jews from Europe there at all, not one of colonization, and Jewish settlements were attacked even though they posed no harm to the Arabs. It’s hardly surprising that it became difficult for Jews and Arabs to live together. Partitioning the territory was the only way out.
“In December 1917, when the British Army occupied Palestine, the Arabs could not independently invoke a right of self-determination in general international law even though they had long been numerically preponderant in Palestine, owning most of the land, and even reaching high political office under the Turks. This is because at that time self-determination was, at best, a political principle. It did not exist as an independent legal right, which all peoples could invoke. However, the Arabs were represented at the Paris Peace Conference. Emir Feisal was given a right of audience by the Great Powers and in his speech before them he did assert a claim to Palestine. Moreover, President Woodrow Wilson invoked the principle of self-determination in a speech he gave to a joint session of the two Houses of Congress five weeks after his Fourteen Points speech when he said that self-determination was not a mere phrase, but ‘an imperative principle of action which statesman will henceforth ignore at their peril’. He added: ‘… peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited of the… Read more »