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States of Criminality: International (Criminal) Law, Palestine, and the Sovereignty Trap

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International Criminal Law—A Counter-Hegemonic Project?

Abstract

In this chapter we ask how and in which form international law can serve as a tool for realising Palestine’s decolonial equality. We do this by placing international criminal law and public international law in conversation to highlight what experiences of (denied) statehood are included and excluded from these legal regimes. We adopt a methodology of feminist praxis to explore the crucial role of historical factors that persist in shaping Palestine’s limited legal possibilities. Whilst this chapter sounds a note of caution about the scope for radical change from the pursuit of liberal legalist projects, it nevertheless seeks to explore the gains that could be made for Palestinian liberation by adopting the framework of decolonial equality.

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Notes

  1. 1.

    ICC, State of Palestine – Situation in the State of Palestine – ICC 01/18, https://www.icc-cpi.int/palestine. Accessed 26 January 2022.

  2. 2.

    Luxemburg 1913/2003.

  3. 3.

    Erakat, in Sterio 2019.

  4. 4.

    Gopal 2021.

  5. 5.

    Pre-Trial Chamber I ruling of 5 February 2021 recognised that the ICC has jurisdiction over the territories occupied by Israel since 1967, ICC Press Release: 5 February 2021, https://www.icc-cpi.int/Pages/item.aspx?name=pr1566. Accessed 26 January 2022. Discussed in a brief reflection in Schwöbel-Patel 2021.

  6. 6.

    This report follows two earlier reports by Israeli-based non-governmental organisations also characterising the nature of Israeli rule over the occupied territories (B’Tselem) or all of historic Palestine (Yesh Din) as amounting to apartheid. Amnesty International is currently completing its own report into apartheid as well. The reports echo previous findings of Palestinian human rights organisations, from Al Haq, to Mezan, Addameer—Prisoners Support and Human Rights Organization, and the Palestinian Center for Human Rights. See also Milanovic 2021.

  7. 7.

    Skouteris 2010, ch 4.

  8. 8.

    Sander 2019, pp. 851–872.

  9. 9.

    For a good overview of standard International Criminal Law aims, see Damaška 2008, pp. 329–368.

  10. 10.

    See The Guardian 2021.

  11. 11.

    On the limitations of liberal legalism for Palestinian activism, especially see Allen 2021, pp. 15–26.

  12. 12.

    Heathcote 2019, p. 129.

  13. 13.

    ‘Application for leave to file written observations by the Federal Republic of Germany’, ICC, Situation in the State of Palestine, ICC-01/18, para 16, https://www.icc-cpi.int/CourtRecords/CR2020_00610.PDF. Accessed 26 January 2022.

  14. 14.

    Von Bogdandy 2020, concluding an international debate on German legal hegemony. See also the aim of ‘transnational capability to communicate’ (transnationale Dialogfähigkeit), Herdegen et al. 2021, para 1, notes 7 et seq.

  15. 15.

    Ibid., para 1, note 13.

  16. 16.

    Ibid., para 9.

  17. 17.

    Obscuring the settler colonial dimension to contemporary realities silences structural and historic injustices. It is typical to begin a narrative about the Palestine/Israel ‘conflict’ by invoking the latest round of fighting or the latest (failed) ‘peace’ initiative. For international law, typically 1967 starts the story as it provides the legal framework of international humanitarian law that arose in the wake of Israel’s occupation of the West Bank, Gaza Strip and East Jerusalem (along with the Golan Heights and the Sinai Peninsula). Earlier instances of violent conquest (by the British after the First World War) and then the Nakba in 1948 can remain off the page altogether. For a reappraisal of time and the question of Palestine, see Seikaly 2019.

  18. 18.

    There is a rich literature on the neoliberal dynamics of Palestinian domination, especially since the Oslo Accords of 1993. See, for example, Haddad 2016.

  19. 19.

    ICC, State of Palestine – Situation in the State of Palestine – ICC 01/18, https://www.icc-cpi.int/palestine. Accessed 26 January 2022.

  20. 20.

    For example, although typically we tend to set the origins of international criminal law as coterminous with the fallout of the genocide against the Jews in Europe, we want to note the earlier genocide of the Armenians in the midst of a collapsing empire on the eve of the Mandate era to complicate narratives about states of criminality. The Armenian presence within the newly emerging ‘nation’-state of Turkey problematised claims about ethnic Turkish purity. Such demographic considerations would also come to haunt the Yishuv (the Jewish community in Mandate Palestine) and is an important factor in accounting for the widespread ethnic cleansing of Palestinians in 1948 and afterwards.

  21. 21.

    Public debate has concerned arguments around continuities from German colonialism to the Holocaust, recently set out in Zimmerer 2021; Moses 2021; see also Zimmerer and Zeller 2003; Zimmerer 2004, pp. 49–76.

  22. 22.

    Bonafe 2009; see also the International State Crime Initiative, http://statecrime.org/. Accessed 26 January 2022.

  23. 23.

    For a representative example of the decolonial field of inquiry, see Mignolo 2009.

  24. 24.

    On these two points and how they can be overcome through feminist collaboration, see Hodson 2018, pp. 1229–1230.

  25. 25.

    Charlesworth 1999, p. 379. On this same point as recently considered, see Heathcote 2019, p. 1.

  26. 26.

    Charlesworth 1999, p. 380.

  27. 27.

    Schwöbel 2013, pp. 169–191.

  28. 28.

    Heathcote 2019, pp. 128–129.

  29. 29.

    Mills 2020.

  30. 30.

    In particular through her conception of primitive accumulation, Luxemburg 1913/2003, pp. 349–350.

  31. 31.

    Luxemburg 1915.

  32. 32.

    German South West Africa, today’s Namibia, became known for the brutal Herero and Nama genocides of 1904 and 1908, referred to in Luxemburg’s writing as the ‘cruel destruction of ten thousand Herero tribesmen’, ibid.

  33. 33.

    Heathcote 2019, pp. 128–129.

  34. 34.

    For example, see Whitehall 2016.

  35. 35.

    Mitchell 2011, p. 79.

  36. 36.

    Reynolds and Xavier 2016, pp. 959–983.

  37. 37.

    Especially see Wheatley 2015, pp. 205–248.

  38. 38.

    Joseph Massad explores the European and Arabic etymology of ‘self-determination’, ‘liberation’ and ‘freedom’ in Massad 2018, pp. 161–191.

  39. 39.

    As well as the Ottoman Empire, which was deeply entangled in European statehood.

  40. 40.

    For example see Anghie 2005, ch 3.

  41. 41.

    See discussion on the different types of protectorates in Burgis 2009, pp. 106–108.

  42. 42.

    General Act of the Conference of the Plenipotentiaries of Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Portugal, Russia, Spain, Sweden-Norway, Turkey, the United States respecting the Congo, 26 February 1885, 165 CTS 485.

  43. 43.

    Mitchell 2011, p. 80.

  44. 44.

    Ibid., p. 91. At this time, Germany also used the term ‘protectorate’ (Schutzgebiete) for its colonies, although notably to indicate them as protecting the rights of Germans within their territorial boundaries.

  45. 45.

    Exchange of Letters between France and Great Britain respecting the Recognition and Protection of an Arab State in Syria, 9/16 May 1916, 221 CTS 323.

  46. 46.

    Sherene Seikaly reminds us of the powerful mythmaking effects around Wilson’s Fourteen Points and how they are (erroneously) remembered as promising self-determination in general. This is simply not the case and so she urges us to (re)visit foundational historical texts such as this so that we can write counter-narratives about the scope for anti-imperial struggle at this time. See her discussion on this point in the following webinar (21 June 2021): https://www.youtube.com/watch?v=fwtNSIid1Ww&t=1446s. Accessed 26 January 2022.

  47. 47.

    Especially see Massad 2018.

  48. 48.

    Luxemburg 1909.

  49. 49.

    Ibid.

  50. 50.

    Ibid., emphasis in original.

  51. 51.

    For an overview of the Palestine Mandate context and its terms, see Burgis 2011, pp. 873–897.

  52. 52.

    Fieldhouse 2006, p. 117.

  53. 53.

    Mitchell 2011, pp. 70–72.

  54. 54.

    As first iterated in the Balfour Declaration 1917.

  55. 55.

    Whilst the Mandate text clearly posits European Jews as the civilisational force in Palestine, this is not to say that Zionism itself is committed to a continued Palestinian presence on the land. The Yishuv (the Jewish community of the Mandate) increasingly eschewed cheaper Palestinian labour in the knowledge that they were building a nation separate from others. From the early 1940s, Zionism was committed to a Jewish majority on the land of Palestine. Demography has remained a key challenge for Zionism and policy responses have adapted depending on the extent to which a Jewish majority is challenged. These policies include ethnic cleansing as killing or expulsion or divided and racialised rule over conquered lands. See Zreik 2020, pp. 8–50.

  56. 56.

    Bhandar 2018, p. 147.

  57. 57.

    Wheatley 2015.

  58. 58.

    Pedersen 2015, p. 392.

  59. 59.

    Khalidi 2006, p. 107.

  60. 60.

    Ibid., p. 106.

  61. 61.

    Most significantly, the intifadas that erupted in 1987 and 2000.

  62. 62.

    UN General Assembly 1947, Resolution 181 (II) (A+B).

  63. 63.

    Kattan 2009, ch 6.

  64. 64.

    UN General Assembly 1974, A/RES/3236.

  65. 65.

    Erakat 2019, p. 98.

  66. 66.

    It is noteworthy too that coterminously, the International Court of Justice (ICJ) was considering the question of self-determination for Western Sahara. In the proceedings, the Saharawi people were not permitted to represent themselves. Instead, they had to rely on the eloquence of Algeria’s representative (key architect of the new international economic order (below) and later ICJ President) Mohammed Bedjaoui. By 2003 when the ICJ deliberated on its Wall Advisory Opinion, the Palestinian Authority was permitted to speak directly to the experiences of a people denied the realisation of self-determination.

  67. 67.

    Especially see Bedjaoui 1979 and a recent appraisal of his legacy, Özsu 2015, pp. 129–143.

  68. 68.

    Declaration on the Establishment of a New International Economic Order, UN General Assembly Resolution 3201 (S-VI), 1 May 1974; Programme of Action on the Establishment of a New International Economic Order, UN General Assembly Resolution 3202 (S-VI), 1 May 1974; and Charter of Economic Rights and Duties of States, UN General Assembly Resolution 3281 (XXIX), 12 December 1974.

  69. 69.

    UN General Assembly 1974, A/Res/3236 1974.

  70. 70.

    Erakat 2019, p. 98.

  71. 71.

    Ibid., p. 99.

  72. 72.

    Kearney and Reynolds 2013, pp. 407–433.

  73. 73.

    See e.g. Explanation of Positions on the ‘State of Palestine’ submitted by Germany, Australia, Canada and Netherlands at the Meeting of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction on 3 December 2018, APLC/MSP.17/2018/MISC.2, cited also in Germany’s position to the ICC.

  74. 74.

    ICC, Pre-Trial Chamber I 2021, paras 94–96.

  75. 75.

    For a very helpful overview on this point, see Qafisheh 2020.

  76. 76.

    ICC, Office of the Prosecutor 2019.

  77. 77.

    ICC, Pre-Trial Chamber I 2021.

  78. 78.

    ICC, Office of the Prosecutor 2021.

  79. 79.

    Interview with Professor Noura Erakat, Intlawgrrls, https://ilg2.org/2019/05/01/interview-with-professor-noura-erakat/. Accessed 1 May 2019. See also TWAILR 2019; Erakat 2019, p. 229.

  80. 80.

    Tatour 2021.

  81. 81.

    ICC, Pre-Trial Chamber I 2021.

  82. 82.

    ICC, Pre-Trial Chamber I 2020.

  83. 83.

    See e.g. Explanation of Positions on the ‘State of Palestine’ submitted by Germany, Australia, Canada and Netherlands at the Meeting of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction on 3 December 2018, APLC/MSP.17/2018/MISC.2, cited also in Germany’s position to the ICC.

  84. 84.

    ICC, Pre-Trial Chamber I 2020, p. 6.

  85. 85.

    For example, Germany did not effectively act upon the 2004 ICJ Advisory Opinion on the Wall that requested UN members not to recognise or assist the illegitimate occupation infrastructure. ‘As regards the legal consequences for States other than Israel, it was contended before the Court that al1 States are under an obligation not to recognise the illegal situation arising from the construction of the wall, not to render aid or assistance in maintaining that situation and to co-operate with a view to putting an end to the alleged violations and to ensuring that reparation will be made therefor’, see ICJ Advisory Opinion 2004, para 146. Accessed 26 January 2022. Germany is, however, deeply concerned about further settlement expansion, see Auswärtiges Amt 2020.

  86. 86.

    Ibid. The Oslo Accords between Israel and the Palestinians in 1993 and 1995 seemingly ushered in a new framework based on the two sides working towards peace and Palestinian statehood. In fact, the framework facilitated unprecedented Israeli settlement construction across the West Bank, Gaza’s near total closure and the creation of the Palestinian Authority funded by massive foreign—including German—donor monies that allowed Israel to withdraw from the quotidian burdens of occupation whilst maintaining full control over the territories, see Burgis-Kasthala 2020.

  87. 87.

    According to the German Foreign Office in 2014, ‘Germany is the ICC’s largest contributor after Japan and also contributes voluntary payments to the Court’s Trust Fund for Victims’, see Auswärtiges Amt 2014. Accessed 26 January 2022. See also Deutscher Bundestag 2018. Accessed 26 January 2022.

  88. 88.

    For a more developed discussion, see Muasher and Brown, in Djerejian et al. 2018; Lustick 2019.

  89. 89.

    Anghie 20012002.

  90. 90.

    Anonymous 2020, pp. 374–382.

  91. 91.

    Braach-Maksvytis 2011, p. 295, emphasis in the original.

  92. 92.

    Tilley 2009.

  93. 93.

    On the definition of apartheid in the ICC Statute, see Mettraux 2020, pp. 740–745. See also du Plessis 2011, pp. 417–428; Clark 2008, pp. 599–620.

  94. 94.

    Human Rights Watch Report 2021, p. 207.

  95. 95.

    Erakat and Reynolds 2021. The title of the article echoes the ‘We Charge Genocide’-petition submitted by the Civil Rights Congress to the UN in 1951.

  96. 96.

    Gopal 2021, p. 12.

  97. 97.

    Ibid., p. 20.

  98. 98.

    Ibid.

  99. 99.

    Tatour 2021.

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Many thanks to Swann Jin for her research assistance.

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Correspondence to Michelle Burgis-Kasthala .

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Burgis-Kasthala, M., Samour, N., Schwöbel-Patel, C. (2023). States of Criminality: International (Criminal) Law, Palestine, and the Sovereignty Trap. In: Jeßberger, F., Steinl, L., Mehta, K. (eds) International Criminal Law—A Counter-Hegemonic Project?. International Criminal Justice Series, vol 31. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-551-5_6

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