The International Criminal Court released a statement on Tuesday rejecting Palestine’s petition to investigate allegations of Israeli war crimes in the 2009 Gaza war, known as Cast Lead. With the fairly predictable decision, Israel avoids another round of international opprobrium. But there is also a symbolic meaning: another failure for Palestine’s unilateral statehood bid. The decision is a clear political signal, not just a purely legal decision reflecting “objective” international norms.
The Palestinians appealed to the Court over three years ago, immediately following the war, based on a provision that even states that are not members of the ICC can petition. But as noted in an informative Foreign Policy article, the ICC was stuck for over three years about what to do.
Now, following the practically-defunct Palestinian unilateral statehood bid, the Court has ruled that it does not have jurisdiction – and its reasoning hinged on whether Palestine could be considered a state at all.
“The issue that arises,” the document reads, “is who defines what is a ‘State’ for the purpose of article 12 of the Statute?”
Who indeed? The general international criteria for statehood, such as the 1933 Montevideo convention, is one guide: a permanent territory, a defined population, a government and the ability to enter into relations with other states. Palestine has all of these, although the first one is compromised by Israeli land grabs and the occupation in general. However, the Palestinian government can’t really claim the traditional monopoly on the legitimate use of force, given highly unstable Hamas-Fatah relations even despite the attempts at reconciliation. So international norms don’t provide a clear answer.
What about outside actors? The ICC acknowledged the recognition of international actors: “The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organizations, including United Nations bodies.” But the Court chose to decide based on the General Assembly’s definition of Palestine as an “observer,” instead, rather than a state and thus waived jurisdiction.
Given these uncertainties, I have argued that even without UN admission, the unilateral bid could have triggered a process of the international community – and the Palestinians – de facto treating Palestine like a state.
A spate of international recognitions prior to September, then Palestine’s acceptance into UNESCO in October 2011 sent just such a signal: that if the normal route to statehood was blocked by politics, history would still take its course.
Then the momentum died. Now the centrality of the Palestinian state is wavering even among Palestinians; instead of being an overriding, unifying national goal, the state concept is increasingly seen as another policy option among others, associated with a specific political leadership about whom the population has grave complaints already.
In this environment, a favorable decision by the ICC could have had been a meaningful statement of legitimacy for the faltering State of Palestine.
There is a precedent. Even when international norms are stacked against a disputed state entity, an international court can rule in its favor when the zeitgeist is right.
When Kosovo seceded from Serbia in 2008, though secession is generally seen as a violation of international norms, hardly anyone could blame the battered province. Still, leveraging the power of states, Serbia initiated a request for the International Court of Justice (ICJ) to rule on the legality of Kosovo’s secession, through the UN, where Kosovo was not (and still isn’t) a member. The initiative was overwhelmingly supported by UN member states. Yet historic sensibilities favored Kosovo. The ICJ ruled that the declaration of independence did not violate international law (stopping short of ruling on the concept of secession). The ICJ’s decision gave Kosovo a boost of international legitimacy that has solidified its position.
De facto Palestinian statehood, as I’ve repeatedly argued, would have its benefits. It would have helped portray Palestinian statehood is an historic inevitability. That would make it harder to roll back the two-state solution, and the two-state solution in turn could hold off the prospect of a one-state apartheid, or a new Palestinian strategy of demanding one-person, one-vote in Israel.
While it would be terribly painful for me personally to see Israel face an international tribunal, it’s worth considering that accepting the petition could also have left the Palestinians open to investigations of war crimes for firing rockets at civilians, putting both sides under scrutiny. Further, it might have been a small victory for the Fatah’s policy of non-military strategies to oppose the occupation, in terms of internal politics.
Instead, the ICC’s decision is a stance against the logical historic progress towards Palestinian statehood. Israel used the opportunity to showcase its pick-and-choose approach to international authority by accepting the decision, with “reservations.”
One small (albeit symbolic) step against two states is becoming one large step towards a totally different paradigm.