Mahmoud Abbas at the UNGA.
It came as no big surprise that the United Nations General Assembly voted to upgrade Palestine to non-member observer status. But, reflecting the reality that international criminal justice now goes to the very heart of Middle East politics, many are left wondering whether Palestine will join the International Criminal Court and request (once again) that the ICC investigate its conflict with Israel. Pondering this issue has left me deeply frustrated.
While it may not be wise to box oneself into a particular moral outlook, I consider myself to be a liberal cosmopolitan. Very briefly, that means that I believe in a politics where all human beings share fundamental individual rights and that when those rights are blatantly violated we, as a global community, have some obligations to respond. This political ethos, I believe, is also what guides most proponents of the ICC, not to mention other liberal cosmopolitan projects such as the Responsibility to Protect.
It is through this liberal cosmopolitan conviction that I view the ICC as inherently political but embodying the potential for fundamentally good politics. I criticize the decision-making of the ICC as well other actors in international relations, such as the UN Security Council, when they move the Court away from its liberal cosmopolitan premise and promise. Of course, this does not mean that I believe that the ICC should be deployed as a blunt instrument, forced down the throats of populations who legitimately seek alternative paths towards accountability and justice. That is far too hegemonic for my taste. But it seems to me, in the case of Palestine at least, that the citizens themselves want to see justice done and see the ICC as an institution through which they can achieve at least some degree of it.
Yet there is a rather convincing political argument to be made that the ICC should not investigate Palestine. In a recent post Kevin Jon Heller deftly covers this argument. Heller writes (in the comments):
I have no doubt that both Israel and the Palestinians have committed serious international crimes. But I also believe it would be suicidal for the ICC to wade into the most politicized conflict in history — virtually guaranteeing that the US would revert to its previous hostility and that all of the Court’s other work would be ignored by the media and the international community. The Court’s long-term legitimacy is more important than any individual investigation, no matter how deserving of investigation a situation might be.
In my view, Heller is absolutely correct in noting that an ICC investigation of Palestine would seriously complicate the Court’s standing in international politics, likely undermine its legitimacy, and consequently hamper its ability investigate other situations in the future. And this exposes a serious and rather frustrating dilemma: it may be necessary to protect the institution that furthers liberal cosmopolitan aims (ie. international criminal justice) by undercutting its ability to achieve those liberal cosmopolitan aims in some cases.
The vast majority of states in the UN General Assembly voted in Palestine’s favour.
Risking poor taste in quoting a previous blog post of mine, I re-read a piece I wrote on the potential of the ICC investigating Palestine in October 2011. I stand by these comments even more firmly today:
Justice in Palestine has less to do with justice than it has to do with 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.
And therein lies my frustration – in the apparent reality that in some cases it is necessary not only that power politics wins over liberal cosmopolitanism but that the victory of power politics may actually propel the aims of liberal cosmopolitanism. Indeed, in such cases, it may be that international criminal justice has to be saved from itself. For the time being, that means that those states who will do everything they can to prevent Palestinians and Israelis from seeing justice are likely to succeed. For many, this is nothing new; this is the ‘selectivity’ and the ‘real’ politics of international criminal justice. Still, that doesn’t make it any less frustrating. And it leaves a bad taste in my mouth.
Justice in Conflict 
I think you should trust the “bad taste” in your mouth. What good is an international justice system if it only applies to some? If those with power can rise above the law? We already see the effects of this. There would be no occupation if the rule of law meant something. When institutions are protected at the expense of certain groups of people they lose all legitimacy. The fear of those who hold power is what gives them power. Israel and the U.S. (and Canada!) betrayed their own weakness in doing everything they could to prevent the Palestinians from achieving UN status (and now I shudder at the thought of the punishment they’ll dole out) – no matter how limited this status is. This should tell us something. If the ICC is impotent in this case – one of the world’s most egregious – then it is worthless.
Mark, I understand that you are frustrated by this whole situation. I am too.
But I’m not sure you’ve articulated why you’re frustrated beyond one reference to Heller’s post on Opinio Juris. You provide us with the theoretical foundations of your frustration, but it’s based on an assumption that we all understand what underlying concerns drive your frustration. It would be good to hear more about those underlying concerns.
For my part, I find this whole situation completely disarming. Holland and the UK conditioning their support to Palestinian observer status on Palestine promising it wouldn’t grant the ICC jurisdiction. Holland? The country that hosts the ICC and reaps all the awards of that? Personally, I think this merits stark condemnation from the ASP. For me, Holland’s moral standing is completely gone. How can such hypocrisy be at the heart of the international justice project?
As for the US, I am not really sure I share Heller’s or your – presumably – concerns. For me, all this hullabaloo about US engagement with the ICC, which is being repeated sans cesse at all the ICC at Ten commemorations, is completely overblown. US engagement is shot through with hypocrisy. It’s not real engagement, which would entail sharing the universal values underlying the IJ project, but rather short-term profiteering and steering the Court in a direction that’s least harmful to US interests. Refraining from actively opposing the ICC is not engagement, and it would be nice if commentators like yourself took a more critical stance toward Rapp’s bland agenda. Rapp, of course, is not to blame personally, but let’s stop hailing US engagement – and, conversely, fearing what may happen if it disappears again because of this Palestine issue – as if it was truly some kind of moral partnership with the ICC. It’s not.
Anyway, there would be much more to say if you could more concretely state your concerns regarding potential Palestine membership of the ICC.
Thanks Mark for one of those posts that cuts through the rhetoric and gets to the heart of the matter. I think you reasonably express your frustration in broader terms of the dilemmas of liberal cosmopolitanism and I think you would not be off base to go even further. First, we are pretty clearly still living in a world where the dominant strain of political philosophy accepts the inequality (in terms of enjoyment of ostensibly universal rights among many other things) inherent in a system that still views states – boundaries and all- as the most naturally suited level of political organization to ensure the realization of human potential.
This represents a dilemma, and one that is being chipped away at in both bottom-up ways (through human rights advocacy within states based on appeals to universal norms) and top-down (as state sovereignty is required to accommodate international norms and institutions across a broad range of activities). But the fundamental arbitrariness of the fact that each individual’s level of enjoyment of human rights being linked to the happenstance of where one is born remains.
In human rights terms, the prominence of the right to self-determination in the foundational human rights treaties represents the extent to which belonging to a state was seen – in the context of decolonization – as a precondition for human rights enjoyment. And this is where we get to the double arbitrariness of the situation of the Palestinians – e.g. the region is already full of examples of states with a history of failing to respect the human rights of their citizens, while the Palestinians have been denied even the fundamental precondition of self-determination.
But this is where I think it is important to keep in mind that even if the Palestinians are the most prominent example of this phenomenon, they are not the only one. What about the Sahrawis, for instance (http://wp.me/pNZgJ-zO), let alone the West Papuans. And as demonstrated by Myanmar’s deplorable treatment of the Rohingya minority, God help you if the rest of the state you find yourself in decides that you are not a part of the “self” it is busy determining.
I think it is important to continue to grapple with the historical antecedents that create many of the conditions for the arbitrary denial of rights and sovereign prerogatives that people such as the Palestinians still suffer. Decolonization was a significant, if long overdue achievement, but it has not only failed to deliver self-determination at all in some cases, but also solidified a system in which enjoyment of rights varies arbitrarily by nationality in the rest. It is probably still an improvement on what came before but there are few grounds for complacency.
Thanks to all of you for your insightful and thoughtful comments.
@Maya – I think Rhodri’s comment also captures the dilemma that I am talking about. But in case it’s still not clear, the dilemma is perhaps deceivingly simple. I believe that if alleged international crimes have occurred in Palestine and the citizens of Palestine want to see international justice done, those crime should be investigated. However, if Heller is right, then it may be best for the ICC’s long-term viability – and thus ability to investigate crimes in other contexts – not to open an investigation into Palestine, at least for the time being. This would mean those states, especially the US, who are looking to block any access to justice on the part of Palestine will win. But, again, if Heller is right, then that may be of long-term benefit to the Court. Put another way, this is a dilemma of a moral imperative (doing justice) against a consequentialist argument (doing justice in this case may undermine the Court’s capacity to do so in the future). The solution – and what I’m struggling with – is how to make the moral imperative and the consequences fit more closely so that this isn’t a dilemma and so that doing justice doesn’t undermine the overall aims of a more liberal cosmopolitan world.
Thanks for the reply, Mark. I guess my point is that I would like to hear in more concrete terms what the consequences would potentially be. Heller and yourself allude to this general notion of ‘negative implications’ and ‘US disengagement’ but I am still not clear as to what specifically that could translate into. I suppose one could retort that this is an invitation to speculate, to which I would simply respond that you are engaging in speculation yourself by assuming that… “an ICC investigation of Palestine would seriously complicate the Court’s standing in international politics, likely undermine its legitimacy…”
Quite why and how an investigation of Palestine would undermine the ICC’s legitimacy is what I fail to understand. In concrete terms. What are the specific repercussions that you and Kevin are so worried about?
With regards to legitimacy, what I see is most of the world openly sympathizing with Palestinian observer status, as evidenced by the world map you included in your post. If legitimacy, as opposed to legality, is now also determined by five – or a handful of – countries, then this Court really isn’t worth fighting for.
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