Doing Justice to History Symposium: Judicializing History in Jenin? Reflections on the Possibilities of Imagining Palestine Otherwise at the ICC

[Michelle Burgis-Kasthala is a Senior Lecturer in Public International Law, University of Edinburgh]

It seems that history is repeating itself. Yet again Jenin refugee camp is under attack by Israel’s occupying forces. As in 2002 when the International Criminal Court (ICC) began sitting, the justification for this recent resort to lethal force centres on alleged Palestinian militant activity and the Palestinian Authority’s unwillingness or inability to reign it in. Amidst these spectacles of contemporary and historical violence, a range of actors have been quick to invoke human rights remonstrations alongside their stronger condemnatory variant of ‘war crimes’ allegations. The predominance of such legalist vernaculars indicates how a range of actors have come to rely on the rhetorical potential of international criminal law after decades of failed ‘peace’ processes. 

Yet there is one significant difference between these two episodes: only the second falls within the jurisdictional purview of the ICC. After being blocked in 2009 from joining the Rome Statute, Palestine was admitted as a State Party in 2015. After a number of incidental hearings over its prosecutorial remit, the Pre-Trial Chamber determined in 2021 that it could exercise territorial jurisdiction over Palestine delineated as the West Bank (including East Jerusalem) and the Gaza Strip which Israel occupied in 1967. Although the potential parameters of prosecutorial strategy remain somewhat unclear, key proponents hope that future trials will focus on the crime of apartheid along with allegations of a range of war crimes relating to conduct of hostilities by Palestinian and Israeli fighters as well as Israeli settlement policy. 

While the opening of any criminal trial is still far from assured, I suggest here that reading these two episodes in Jenin through Barrie Sander’s book, Doing Justice to History, offers a productive way to think through the historical possibilities of (criminal) judgment on Palestine at the ICC. What role has history played thus far in framing the ICC’s (highly limited and limiting jurisdictional) approach? What type of history could we expect to be written in any future judgment and how might this serve as a way to heal the wrongs of the past? In this short reflection, I consider some key points from this wonderful book before reading them alongside the ICC’s 2021 decision and an imagined judgment that could be written in the wake of broken homes and lives lost in the legal limbo of a territory occupied that the ICC has nevertheless framed – for the purposes of its criminal jurisdiction – as constitutive of a state. 

According to Sander, historical considerations are crucial for international criminal trials whether as 1) histories of international criminal justice (ICJ), 2) ICJ as included in historical accounts or 3) the use of history in ICJ trials and judgments directly (pp.26-28). It is this third aspect in particular that intrigues Sander as he suggests that the ‘inescapability of the historical function of international criminal courts is reflected in the close association between adjudicative justice and establishing the truth’. Yet given that international criminal law (ICL) trials tend to examine the very worst atrocities arising from fierce interpretative contestations, Sander shows how courts generally end up constructing highly restrictive and partial renderings of the past. He notes that international criminal courts cannot avoid the contexts of their creation and perpetuation, and tend to rely greatly on states and especially great power interests. While the criminal trial can open up a degree of pluralism by allowing ‘narrative entrepreneurs’ to present their own historical accounts, ultimately, these actors are seeking validation through the court’s own authoritative account of the past (p.43). In rendering such a judgment, criminal courts are not only providing their own circumscribed and legalised interpretation of (certain) harms suffered, but their institutional impetus is always shaped by the imperative of justifying and legitimising their own expressive power. Recognising the overweening importance of state interests then is crucial here and thus tends to produce apologist decisions favouring both the contemporary agendas of powerful states as well as state-centric historical interpretations. 

Sander suggests that we can understand the way criminal courts employ the legal categories of admissibility, crime and sentencing as malleable ‘narrative grids’ that provide structure for their final judgment (p.9). While it is far too soon to consider specificities of sentencing in our example here of Jenin, an analysis of admissibility and types of crime perfectly illustrates Sander’s broader point about the apologist and narrowing confines of criminal judgment that has emerged and would most likely emerge from any future criminal trial on Palestine. 

Before launching a pre-trial investigation, the Prosecutor sought a determination on the territorial jurisdiction of the ICC as she was ‘mindful of the unique history and circumstances of the Occupied Palestinian Territory’. This story of territorial contestation began over a century ago under British colonial rule that encouraged increasing divisions between the majority (Christian and Muslim) indigenous Arab population with a growing (largely migrant) Jewish population. While not sending its own citizens as settlers, the period of the British Mandate (1922-1948) nevertheless set up a pattern of preferential policies for its Jewish population that would transform into full-blown settler colonialism once Israel was created in 1948. For the purposes of ICC jurisdiction, most palpable was the way in which Israel’s 1967 occupation of the remainder of historic Palestine began very soon to take on settler colonial dimensions. Many Palestinians whether those displaced in 1948 or those local to the newly occupied lands, would find themselves pushed into smaller enclaves while the Israeli army and civilian settlers moved in. This general structural context of foreign rule whether understood through the (partially inter-related) lenses of settler colonialism, occupation or apartheid provided the conditions for increasingly radical inter-communal conflicts that have become ever more destructive in their intensity. 

As the occupation has become more entrenched, so too has been the reliance on framing Israel’s rule through the language of international law. Once the majority of Palestinians recognised that armed struggle, negotiations and regional settlements were failing, the idiom first of human rights and then ICL became ever more prominent whether as cognitive frames, advocacy tools or ways of imagining alternative futures. We see this clearly in the large number and range of civil society actors submitting amicus briefs to the ICC in 2021. They had to work within the limits of the Court’s narrow jurisdictional remit in their quest not only to support the possibility of future trials, but ultimately, an independent Palestine. While the Pre-Trial Chamber was at pains to remind its direct interlocutors that it could not pronounce on the statehood of Palestine per se, its decision in support of territorial jurisdictional over 1967 territories, indirectly did just that. Thus, for those Palestinians seeking other ways of imagining a Palestinian state – such as a bi-national state from the Jordan River to the Mediterranean Sea – their participation in ICC proceedings has helped to legitimise the foreclosure of such a future. 

Given the fierce intensity that debates over Palestine/Israel garners in a range of fora, it was not surprising that the ICC too faced fierce opposition and support to its jurisdiction. The high stakes of these debates did not deter the ICC as it argued that ‘potential political outcomes alone should not pose any restrictions on the exercise of the jurisdictional activity’. As Sander has also shown in his book, what the ICC found more troubling, was its relationship with states. The Pre-Trial Chamber deferentially noted that seven states had pushed for a finding of no jurisdiction in the case. The only way the ICC could overcome such concerns was by countering with a stronger state-based argument. First, it pointed out that an even larger number of states (as members of the Arab League) had supported its jurisdiction in the hearings and that secondly and more crucially, it could rely on Palestine’s official designation by the UN as a ‘non-member state’. This instance of UN General Assembly validation of Palestine’s status as a state in 2012 allowed the Court to sidestep tricky questions about its lack of control over occupied territories. Thus, through a highly apologist construction of its jurisdiction, the Court could set up a (liberal) legal fiction of Palestinian sovereign equality – even in the face of sustained and long-term belligerent occupation. 

Surely this is one of the greatest risks for Palestinians in coming to the ICC: not simply that false equality will entail the possibility of Palestinians on trial, but that Palestinian statehood will be rendered hollow and truncated before it can even begin if a finding of (individual) Israeli criminality finally brings Israeli belligerent occupation to an end. 

Where does this leave Jenin? The city and particularly its refugee camp were the epicentre and symbolic heart of the Second Intifada that followed in the wake of the failed Oslo Peace Process. After the Israeli army’s wholesale re-invasion of the West Bank in 2002 and its withdrawal from Gaza in 2005, its recalibrated settler colonial policy is now one of deliberate neglect interspersed with instances of spectacular violence as endured especially by Gaza’s majority (1948) refugee population in 2008/2009 and  2014 and most recently, Jenin. Such episodes readily lend themselves to ICL framings that would trigger the ICC’s judgment on a range of targeting questions in particular by both Palestinian and Israeli actors. Yet to fixate on these crimes would do a profound violence to the promise that Palestinians glimpse when speaking of Israeli apartheid and settlement practices. Not only do these longer-term policies call for deep and nuanced historical considerations about territorial claims, attachments and violations, but they also cannot be limited to the territorial state of Palestine as constructed by the ICC for the purposes of its jurisdiction. Many of Israel’s highly discriminatory policies rely on British-enacted laws that provided the impetus for racialized and bifurcated registers of settler colonial rule across the territory of Israel and the occupied territories. Jenin refugee camp’s population had fled 60 kilometres south-east from Haifa in 1948 and are now doubly blocked from return on account of their status as non-citizens and the construction of a massive concrete wall nearby. Any future criminal trial whose jurisdiction is limited to the occupied territories for crimes committed since 2014 seems wholly incapable of speaking to these historic and yet ongoing harms. While there is scope for some creative ways of thinking with and beyond the crime of apartheid for instance as a way to capture a more complicated context supportive of the right to ‘self-determination’, this seems highly unlikely.

This does not mean that Palestinians should abandon the ICC or the possibilities of the criminal trial per se. Instead, Sander suggests a politics of circumspection when looking to international criminal trials, ‘whether by looking backwards to the process through which such narratives were constructed, forwards to their ongoing contestation both within and beyond the courtroom, or sideways to other societal mechanisms tasked with constructing atrocity narratives about particular episodes of mass violence’. Rather than mechanisms of narrative closure, international criminal courts should be viewed in more modest terms as at best a discursive beginning for individuals and communities to engage with and debate the past’ (p.323). Any future reconciliation in Jenin and beyond could include historical judgment, but Sander’s book suggests it is unlikely to provide creative and expansive ways to render justice for Palestinians and Israelis.