Barrie Sander joins JiC for this second article in a four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. The first part of the series, can be found here.

Part Two – Analogies and Comparisons

When confronted with situations of ongoing mass violence, what stories can international lawyers usefully tell? I want to begin reflecting on this question in the context of the situation in Israel-Palestine by considering analogies and comparisons. 

It was cultural thinker John Berger who famously remarked, ‘The past is never there waiting to be discovered, to be recognised for exactly what it is. History always constitutes the relation between a present and its past’. One way in which international lawyers may try to make sense of moments of crisis is to situate such events within the wider trajectory of the field – identifying continuities, contrasts, and ruptures with past situations, as well as silences, absences, and stories untold. Drawing on traditions such as the critical race theory (CRT) tactic of counter-storytelling, the Third World Approaches to International Law (TWAIL) tactic of counter-narration, and the feminist method of searching for silences, international lawyers often call particular analogies and comparisons in the field into question and create space for alternative understandings of the relationship between the past and the present.

Recent commentary on the situation in Israel-Palestine has been marked by frequent recourse to historical analogies and comparisons. Consider, for example, references made to the Allied bombing of Dresden during the Second World War seemingly in an effort to justify the proportionality of Israel’s current military campaign in Gaza. The analogy is not only highly selective but also flawed. The Allied bombing of civilian population centres was of questionable legality even at the time, with several commentators characterising such acts as a war crime. And whatever legal ambiguities may have remained during that period, the illegality of so-called ‘morale bombing’ campaigns became incontestable soon afterwards with the adoption of the 1949 Geneva Conventions. These campaigns also proved unsuccessful in their military aims, with one commentator noting how their brutality ‘far from shattering the enemy’s morale, may have even encouraged a spirit of resistance which prolonged the war’.

A counter-reading of the relevance of Dresden to the current crisis in Israel-Palestine would be to reflect on how the city may be viewed as a symbol of the tendency for the field of international criminal justice to be subservient to the balance of power between States beyond the courtroom. In the aftermath of the Second World War, not only was there a failure to investigate or prosecute the Allied bombing of Dresden, but charges concerning mass bombing campaigns of civilian population centres conducted by the Axis powers were also omitted from the indictments of Axis personnel in the criminal trials conducted in the aftermath of the Second World War. In this way, those trials were not only one-sided in solely prosecuting Axis personnel, but also selective in their substantive orientation in ways that sought to protect Allied interests and avoid embarrassment. 

Indeed, beyond these charging decisions, at times the very drafting of legal categories was structured to guard against allegations being directed towards the Allied powers. As Robert Cryer explained, when drafting the provision on crimes against humanity in the Nuremberg Charter at the London Conference, US representative Robert Jackson was aware that if the category was not restricted to circumstances connected to illegal war, ‘not only could colonialism (embarrassing for France and the United Kingdom), or the Gulags (still a secret in the USSR) be evaluated with reference to the law, but so could the segregationist policies in the United States’.

Selectivity based on the balance of power between States beyond the courtroom remains a challenge for the field of international criminal justice to this day in ways that are likely to be highly relevant to the Israel-Palestine situation. The record of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), for example, reveals a tendency to select cases that align with the interests of States on whose cooperation it depends – whether States whose territories the OTP requires access to for the conduct of its investigations or powerful States within the international community whose assistance it relies upon more generally. Consider, for example, the charges brought against members of the Lord’s Resistance Army in Uganda to the neglect of Ugandan government forces. 

The ICC OTP also reveals a propensity to prioritise cases based on ‘operational conditions’, such as the availability of evidence, the level of international cooperation and judicial assistance supporting the Prosecutor’s activities, and the potential to secure the arrest and surrender of suspects, each of which are prone to influence from State pressure. An illustrative example is the ICC Prosecutor’s decision to focus the investigation in Afghanistan on crimes allegedly committed by the Taliban and Islamic State and to deprioritise other aspects of the investigation including crimes allegedly committed by the US armed forces and the CIA. The result, as Frédéric Mégret succinctly put it, is that ‘rather than speaking truth to power, [international criminal courts and tribunals] can legitimately be suspected of having spoken a certain truth of power’. 

The sluggish pace of progress in examining the situation in Palestine under former ICC Prosecutors Luis Moreno-Ocampo and Fatou Bensouda gave reason to believe that the OTP was not eager to initiate an investigation into the situation. Whether current ICC Prosecutor, Karim Khan, will be successful in breathing new life into the investigation remains to be seen – though concerns have already been raised about his competency in investigating the Palestine situation. 

In any event, based on past experience in the field, even if cases are selected concerning both Hamas and Israeli officials, it is highly likely the ICC Prosecutor would prioritise the prosecution of members of Hamas – not necessarily because their deliberate attacks on civilians may be easier to prove in terms of legal and evidentiary considerations, but because ‘operational conditions’, i.e. the wider political environment, in terms of State cooperation and the potential to secure the arrest and surrender of suspects are likely to be more favourable. While Israel currently refuses to recognise the ICC’s jurisdiction, lessons from other situations under investigation by the OTP reveal that States can shift towards a strategy of selectivecooperation when it suits their political interests (the shifting stance of Uganda’s President Museveni offering a notable example).

Commentators have understandably characterised the Palestine investigation as ‘a make or break case study’ for the legitimacy of the ICC. Yet, based on prior international prosecutorial practices, the prospect of avoiding one-sided prosecutions seems remote. All the more so since, as Alex Whiting previously noted, ‘it seems likely that the line between prioritisation and case selection might blur over time; cases that are deprioritized because they are not feasible may never get prosecuted, meaning that they will in effect have been de-selected’. While it may be argued that some justice is better than no justice, from the perspective of neglected survivor communities, a one-sided prosecution may be interpreted as ‘a provocation, a denial of justice, and itself a cause of grievance’ – the ICC becoming, however reluctantly, instrumentalised in the service of the political interests of a particular side to the conflict. 

This is not to suggest the ICC process is devoid of value. Were the ICC Prosecutor to bring charges against Israeli officials, the latter would likely find their freedom of movement inhibited (as we have already seen with Russian President Vladimir Putin). State and corporate actors supplying Israel with weapons would likely be subject to further legal challenges, and a significant degree of stigma would hang over those charged – even if such charges proved unenforceable in practice. Moreover, such charges could also perform the didactic function of naming, bearing witness, and narrating the harms and violence with which an individual is charged. 

The analogy of Dresden, therefore, while not completely undermining the value of the ICC process, nonetheless helps to remind us of the structural limitations of international criminal justice. Based on past practices of international criminal prosecutors across different institutional contexts, a common pattern emerges: whilst operating under the cover of an idealised global community, international criminal courts have proven structurally unable to transcend, and in fact tend to reproduce and reinforce, the inequalities of the actually existing international political order at any given moment of time. Situating the current Israel-Palestine situation in this wider trajectory is important for setting expectations concerning the type of justice, if any, that an ICC investigation is likely to deliver.

There are many other examples of historical analogies and comparisons within the field of international law that have been discussed in recent months in relation to the Israel-Palestine situation. Some scholars have relied on analogies in an effort to learn lessons from crisis situations in the past. Mary Ellen O’Connell, for example, explored how the characterisation of 7 October as Israel’s 9/11 may provide a useful starting point for examining why full-scale ground invasions following terrorist attacks ‘cannot meet the conditions of lawful self-defense’. Others have sought to identify continuities between the current crisis and the historical trajectory of international law. Alonso Gurmendi Dunkelberg, for example, situated present-day contestation over Palestinian statehood within enduring racialised logics of an ‘unequal and burdened Westphalian system of integration’ as a way of shedding light on why ‘a sterile and depoliticized debate about statehood is part of the problem’.

These types of reflections are important not only for assisting our understanding of the present, but for helping us to realise that, as Janne Nijman puts it, ‘we live in a political but also a legal world, which we have constructed through thinking – and thus doing –, and to understand where possibilities lie for deconstruction and reconstruction’.