Contemporary International Criminal Law After Critique Symposium: Carceral Internationalism in the Situation of Palestine After Critique

[Michelle Burgis-Kasthala is Professor of International Law and Governance at the University of Edinburg and Adjunct Professor at IE Law School.

Barrie Sander (@Barrie_Sander) is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs.]

As contemporary international criminal law (ICL) enters its fourth decade, carceral internationalism has become normalised within the international community to a degree few thought imaginable. Such has been the permeation of carceral sensibilities within the international sphere that, as Engle reminds us, nowadays ‘expressing opposition to any particular international prosecution is sometimes seen as anti-human rights’. At the same time, to participate within the field of ICL today is to operate within a far more self-reflexive and circumspect anti-impunity space where ICL’s failings are readily acknowledged while often still called upon in a reconstructiveposture.

In our recent symposium in the Journal of International Criminal Justice, we suggest that the field of ICL has not only moved beyond its inception phase, but is also beginning to emerge from its critical phase towards a ‘post-critical’ phase. By ‘post-critical’, we do not mean to suggest that the task of critique is over or in decline; rather, we now witness a phase where critique is becoming or has become normalized within the field, with both reformist and assumptions-based reappraisals more readily acknowledged within the field’s imaginary. In this climate, we ask whether the vocabulary and institutions of ICL may be productively (re-)engaged in the pursuit of emancipatory ends in this period ‘after critique’. We identify three overlapping avenues for (re-)engaging with the field of ICL in this ‘post-critical’ moment – critical; tactical and strategic; and decolonial and abolitionist.

Building on the analysis in our article, in this post we reflect on these avenues for (re-)engaging ICL by examining carceral internationalism in the specific context of the International Criminal Court’s (ICC) more recent involvement in the situation in the State of Palestine – a situation that has been characterised as a litmus test for the ICC in particular and ICL in general.

Critical Engagement

Endeavours to expose and to understand the role of international law in global patterns of injustice are never complete. The persistence of cognitive and social psychological dynamics that render the world seemingly just tend to sustain faith in international law’s emancipatory potential, demanding that, as Venzke puts it, ‘critique be repeated, rubbed in’.

Often, the turn to ICL amongst international lawyers results from a need to ‘do something’ in the midst of mass violence and suffering. At such moments, quiet and patient reflection about the longer arc of strategy may seem indulgent and hard to justify. Who would endorse alleged war criminals not being called to account? Yet, following the ICC Prosecutor’s application for arrest warrants against Hamas leaders and Israeli officials in May 2024, critical engagement remains crucial for revealing not only the discontinuities that may mark particular crisis situations, but also the continuities – guarding against our collective amnesia of prior critical junctures both in the field and on the ground.

Critically reflecting on the ICC Prosecutor’s application for arrest warrants reveals well-established structural biases of ICL institutions, in particular a tendency to foreground certain types of violence, actors, and geographies to the marginalisation and exclusion of others. For example, the arrest warrant applications foreground certain spectacular harms – a narrow set of highly visible and shocking displays of physical, direct and immediate forms of violence – which constitute the ‘dominant aesthetic’ of ICL. Omitted are categories such as the crime of genocide and apartheid as a crime against humanity, which have the expressive potential to address fast but also slower forms of violence that may unfold over years or even decades, such as the everyday subordination of Israeli occupation and the concomitant denial of peoplehood and self-determination. In addition, before the escalation of hostilities in Gaza since late last year, supporters of the Palestine ICC brief had been pushing two key concerns: alleged conduct of hostility crimes in Gaza since 2014 and Israel’s settlement policy across the West Bank (including East Jerusalem). While the sheer scale of Israel’s recent destruction of the Strip and its people certainly demands a response, given that the ICC’s jurisdictional remit begins in 2014, overlooking structural harms such as settlements attests to the continuing sway of spectacular violence for the ICC Prosecutor.

The individualised and highly selective nature of arrest warrant applications also privileges a reductionist account of responsibility – casting a narrow net in relation to pain and suffering in the region that derives from actors and processes that extend far beyond the frame of ICL’s individualism. Nor do the ICC arrest warrants offer much in terms of directly targeting the political economy of ‘business as usual’ with Israel beyond what Reynolds recently termed ‘performative condemnations and symbolic initiatives’. This is in line with a long-standing reticence amongst international prosecutors to scrutinise the economic dimensions of mass violence, including the provision of arms and other resources that fuel mass atrocities.

As the ICC Prosecutor continues to conduct investigations into the situation of the State of Palestine, sustained critical engagement remains crucial both to challenge the embedded biases and blind spots of the institution and to resist the vocabulary of ICL from dominating the discourse of global justice to the exclusion of vocabularies that seek to address political imaginaries, the material dimensions and structural features of the situation as broadly conceived.

Tactical and Strategic Engagement

Yet, while critical work is vital, there is also a risk that it may prove inadequate in and of itself in inspiring pathways towards emancipatory change and may even contribute towards a climate of ‘fatalistic despair’ – serving to stabilize rather than challenge the status quo. Across a range of critical traditions, this dilemma has tended to be characterised in the form of a tension between reform and resistance – between seeking to foster transformative change through reformist efforts within the system of international law or resisting existing normative structures in ways that seek to reimagine and move beyond them.

By shifting perspective to the concrete struggles that marginalised groups are engaged in, we suggest that it becomes possible to think through the ways in which reform and resistance ‘flow into one another’. Thinking with the work of socialist internationalist Rosa Luxembourg, for example, Schwöbel-Patel suggests that ‘reforms are not incompatible with revolution, but the reforms must be directed towards the ultimate aim of anti-imperialism and socialism’.

From this perspective, Palestinian efforts to harness the expressive power of the vocabulary and institutions of ICL, however unavoidably imperfect they may be, can be understood as one tactical component that forms part of a broader mobilisation to advance their longer-term strategic agenda for emancipation. In this regard, it is particularly significant that ICL is not being mobilised in isolation; it is but one part of a broader series of advocacy struggles – ranging from engagement with various adjudicatory mechanisms (including the International Court of Justice in its occupation and genocide cases) and investigative bodies (such as the Committee on the Elimination of Racial Discrimination and the United Nations Commission of Inquiry) to various forms of direct action and protest (such as the Boycott, Divestment and Sanctions campaign and related student-led encampments around the world). These mobilisations of multiple overlapping and sometimes contradictory vocabularies as part of a broader strategic struggle is what O’Connell has termed ‘emancipatory or critical multilingualism’.

In this vein, we agree with Edelbi, who argues that rather than abandoning international law, ‘we need to make use of legal tools in more creative, subversive and contrapuntal ways that enable us to reclaim and reimagine what law should be and what it should look like from the standpoint of the oppressed’. With this in mind, although institutions, such as the ICC, may ultimately prove to be very limited outlets for justice, the vocabulary of ICL may still have value both within and beyond the courtroom – for capturing some of the injustices of the world and moving the needle, however slightly, towards the world as it should be – particularly when mobilised imaginatively and resourcefully in conjunction with wider struggles for Palestinian emancipation.

Palestinians, Palestine and the ICC ‘After Critique’: Futures Unknown

Reflecting further on tactical forms of engagement with ICL in the region, we also suggest that the turn to ICL for many is unlikely to be driven by an idealised view of the emancipatory potential of international law, but rather, a sense of frustration and, as Reynolds and Xavier suggest, ‘a product of the limited avenues available to a self-determination cause some 50 years after the heyday of Third World national liberationism’.

In this context, it is important to think critically about how differently situated Palestinians – whether at the elite or grassroots level – engage with ICL and the extent to which it can be a language of liberation. This is especially so for those Palestinians formally excluded from the purview of the ICC. In its 2021 interlocutory decision, the Pre-Trial Chamber held that solely for the purposes of its own jurisdiction, Palestinian statehood equated to the Gaza Strip, the West Bank and East Jerusalem. Such a finding is in line with established UN practice which accepts Israel’s presence on 78% of historic Palestine as uncontested. In doing so, the possibility of a decolonial approach to (disordered) Israeli statehood are precluded. Palestinians as ‘citizens’ of Israel or the many millions in the diaspora cannot directly inform the ICC’s investigative remit whether as victim participants or more broadly as constituents of any case initiated by the Court. Thus, broader considerations about the nature of Israel’s founding through the Nakba and ongoing settler colonial erasure persist as harms in a state of liminality.

In recognising these constraints within an already carceral frame, it is imperative that our scholarly critiques do not slide into criticism of Palestinian choices about their own engagement with ICL. Instead, scholars can simply provide a range of analyses to inform Palestinian debate and decisions about ICL engagement, whether as tactical and strategic engagement or more abolitionist preferences. As scholars we would also benefit from reflecting on our own particular standpoint in the world, especially given our privilege to think and to write in the midst of Gaza’s generalised destruction and the specific phenomenon of scholasticide. In this vein, we endorse the recent reflections of Lea Ypi, who posits that:

“The people who suffer from injustice, who withstand daily insults to their dignity, who are marginalised, silenced, exploited, left to die or killed cannot afford to ask themselves if they have hope. They cling on to life, they try to cope, they fight. Their continuing struggle, whatever form it takes, cannot afford the loss of faith. The least the rest of us can do is to avoid questioning the grounds for hope, indulging ourselves even more. Perhaps this is the real political meaning of the Enlightenment: whether there is hope or not is only a relevant question for those who have the privilege to doubt it. That is a small fraction of the world.” (emphasis added)

Thus, when thinking about the remit of ICL for Palestine and for Palestinians, scholars can only play an incidental role in informing a spectrum of struggles. We hope that this blog symposium building off our JICJ symposium at least provides a space for reflection during a time that is after critique, but during a genocide.