Guest Post: A Response to Kevin Jon Heller

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.