ICC and Palestine Symposium: ‘Injustice Anywhere is a Threat to Justice Everywhere’ – Palestine, Israel, and the ICC

[Mark Kersten is the founder of the blog Justice in Conflict. He is a Senior Researcher at the Munk School of Global Affairs and Public Policy and a student at McGill University’s Faculty of Law.]

You would think it was reason to celebrate: there is a distinct possibility of an international court investigating alleged international crimes in a region of the world where such atrocities are well-documented, yet accountability scant. Then again, we are talking about a subject that gets many people’s knickers in a knot: the possibility of the International Criminal Court (ICC) investigating crimes committed in Palestine. Even respected proponents of international justice have lined up to proffer reasons as to why an ICC investigation should be thwarted. In doing so, they project a vision of international criminal justice that should only be available some places, some of the time. There are major costs to this view – for both Palestine and Israel, for the ICC, and for the project of international criminal justice. The ICC route has its limitations, but efforts to achieve even a modicum of accountability for Palestinians and Israelis deserve support.

Is it really that complicated?

There continues to be a debate among international lawyers and scholars as to whether Palestine is a state. The ICC Prosecutor herself acknowledged that “the question of Palestine’s Statehood under international law does not appear to have been definitively resolved.” Some observers are genuinely interested in this debate. Others pipe up when there is a possibility of accountability in the region and instrumentalize the debate to foment uncertainty about whether Palestinian and Israeli victims deserve international criminal justice.

But it may not actually be all that complicated for the ICC. As the ICC Prosecutor has explained:

there are sufficient indicia of statehood to enable the ordinary operation of the ICC Statute… [M]y office has analyzed as relevant — the assessment conducted by a number of different competent and informed bodies, such as the International Court of Justice, the UN General Assembly, the UN Security Council, the Secretary-General and several UN coordinators, rapporteurs and committees.

The real question before judges isn’t whether Palestine is a state for the purposes of an ICC investigation, but where, exactly Palestinian statehood starts and stops. There are good arguments to suggest that a criminal court is not best placed to determine the territorial boundaries of states. For those concerned and interested in being productive, however, energy would be better spent in finding an appropriate forum to determine the territory of Palestine, rather than pretending that it somehow isn’t a member-state of the Court.

Today, the majority of the world’s states (137 in total) recognize Palestine statehood, including most ICC states. The only major regional outliers in are states in Europe and North America. The Court itself not only recognizes Palestine as a member state for the purposes of the Rome Statute, but spelled out to Palestinian authorities exactly what was needed to be recognized as such. It would be unimaginable now for the Court to tell Palestine that, while it followed every step required of it, it doesn’t matter because judges have decided now that it’s not enough. As Prosecutor noted, “it would be strange to permit Palestine to join the court, but to deny to it the natural consequence of its accession, which is to exercise the court’s jurisdiction on its territory.” It wouldn’t just be strange, though. It would be insulting and unjust.

Any decision by ICC Judges to deny Palestinian statehood (for the purposes of the Rome Statute) would also have devastating political consequences for the Court’s relations with key constituencies. There are states, state actors, as well as critics expecting the ICC to keel before the political bullying of powerful states. It will only fulfil their view that the Court only works against the weak and bows before the strong.  

Netanyahu’s bumbling and bullying campaign to discredit the Court

Palestine became a member-state of the ICC in January 2015. Israeli Prime Minister Benjamin Netanyahu, who also held the same position then, had over five years to organize an effective campaign to preclude the Court’s Prosecutor seeking to investigate atrocities in Palestine. He has failed to do so but has, incidentally, raised the costs of opposing an ICC investigation into Palestine.

Part of Netanyahu’s failure is evidenced by his recent and vocal bout of almost paranoid hysteria. He has admonished the ICC as “anti-Semitic” which is both unhinged and non-sensical, as evidenced by a complete lack of evidence backing up this assertion and his own cozying up with anti-Semitic political leaders to undermine the Court. He has encouraged citizens of democracies to pressure their governments to issue sanctions against the Court, “its officials, its prosecutors, everyone.” Along with Israeli President Reuven Rivlin, Netanyahu stooped to the depths of politicizing the anniversary of the liberation of Auschwitz and the World Holocaust Forum in order to (unsuccessfully) lobby world leaders to criticize the Court. The cruel irony of using the 20^th century’s worst mass atrocity in order to undermine the only permanent international court capable of tackling such atrocities appears completely lost on Netanyahu.

It’s not just the Israeli Prime Minister, though. Israeli diplomats (including in Canada) have attacked the integrity of respected journalists who have reported on Netanyahu’s campaign to organize anti-ICC sentiment. One diplomat even refused multiple offers from this author engage in a dialogue over the facts behind the ICC’s potential investigation. 

Unsurprisingly, Netanyahu’s campaign has only borne the most modest of fruit. Only a few right-wing and actually anti-Semitic figures like Hungary’s Viktor Orban and The Netherlands’ Geert Wilders have joined the Trump administration, Australia, and a muted response from Canada, to offer Netanyahu some degree of support.

Ironically, Netanyahu’s hysterics make it harder for moderate states to side with the Israeli government over an ICC investigation. Some may legitimately believe that it is a bad idea for the ICC to embroil itself in the region or may be concerned about the consequences of such an investigation, but few want to insult a Court that they helped set up or lend credence to political hissy-fits against international justice.

Relatedly, while Netanyahu and those who support his anti-ICC campaign may be focused on their domestic audiences, they are also likely doing damage to Israel’s international reputation. The country engages in various focus groups with students around the globe (and especially in the US) in order to ascertain which issues facing Israel resonate with them and how they can be used to bolster international support for the country and its government. Increasingly, such studies have shown that global public opinion views Israeli behaviour against Palestine as oppressive and unjustified. Outside of supporters of Trump, Wilders, and Orban, or other violently irresponsible demagogues, it’s very unlikely that those watching Netanyahu will look approvingly on efforts to undermine the world’s only permanent international criminal court. Indeed, like the bombastic anti-global justice rhetoric from Trump’s White House, Israel may impugn its reputation and bolster that of the Court.

Stop Fighting for Selective Justice

Of course, there remain concerns about whether the ICC can effectuate justice and accountability in the situations in which it investigates. Its record is poor and selective. But undermining an investigation by the ICC doesn’t help. At all. It doesn’t only communicate the view that the Court shouldn’t investigate alleged atrocities committed against Palestinians; it also says that Israelis should not benefit from an international investigation of crimes committed Hamas and other Palestinian terrorist organizations. The ICC Prosecutor has found that international crimes have been committed not only by Hamas and other armed groups, but also by Palestinian security and intelligence services in the West Bank. It is an absurdity of the highest order when senior Israeli officials call the Court a “tailwind” to terrorism, when the ICC – and not Israeli forces or courts – may present a real opportunity to investigate, marginalize, and prosecute Palestinian forces that have committed atrocities against Israeli citizens.

It would almost be excusable if, in advance of arguments against pursing ICC justice for alleged atrocities committed in Palestine, observers exclaimed that ‘all Palestinians and Israelis deserve justice and accountability for any and all alleged atrocities committed against them – and there is heaps of evidence from independent sources that such crimes have been committed.’ Such an argument might productively and constructively then lay out a case that the ICC isn’t the best option to achieve such justice: that its record is weak or, more persuasively, that its role should be to galvanize Israeli and Palestinian action on crimes. Sadly, that’s virtually never the case, though. 

How Selective Do We Want Justice to Be?

It should be but isn’t trite to say that an ICC investigation into Palestine isn’t about being for or against Israel. The debate over an ICC investigation in Palestine is about much more than whether the ICC will actually bring perpetrators in Israel or Palestine to account for alleged atrocities. It is about where we stand, what we think is right, and whether or not we are willing to use legal vagaries to insist that justice should stay selective and remain rested in the control of the powerful.

Let me be clear: I am not saying that ICC justice for Palestine will ‘work’. After debacles and failures in other contexts, no one can honestly promise that justice and accountability will be served if and when the ICC opens an investigation into the situation in Palestine. But it is worth trying, because there simply are no other realistic promises for justice and accountability. At the very least it would signal that, like victims and survivors in Darfur, Kenya, Uganda, and in other contexts where the ICC has intervened, that someone is working towards justice; that someone is on the side of those who suffer atrocity and political violence.

Martin Luther King famously said that “injustice anywhere is a threat to justice everywhere.” International criminal justice isn’t available anywhere or everywhere. But it could be on offer to at least some victims and survivors in Israel and Palestine. Thwarting it, frustrating it, and opposing it entrenches selective justice, undermines the ICC, and shackles international criminal justice to its most limited self.