{"id":186556,"date":"2021-06-07T12:01:57","date_gmt":"2021-06-07T11:01:57","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=186556"},"modified":"2024-06-12T21:24:22","modified_gmt":"2024-06-12T20:24:22","slug":"we-charge-apartheid-palestine-and-the-international-criminal-court","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2021\/06\/we-charge-apartheid-palestine-and-the-international-criminal-court\/","title":{"rendered":"We Charge Apartheid? Palestine and the International Criminal Court"},"content":{"rendered":"

Noura Erakat<\/a> & John Reynolds<\/a> reflect on Palestinian efforts to engage the International Criminal Court, in the context of Israeli settler-colonialism and both its spectacular and structural violence. Conscious of the limits of international criminal law, they think about Palestinian activist legal tactics \u2013 and the charge of the crime of apartheid in particular \u2013 in relation to political strategy.<\/em><\/p><\/blockquote>\n

\"\"<\/a><\/p>\n

TWAILR Reflections<\/em> #33\/2021<\/em> – At the end of 2008, Israel went to war on the Gaza Strip on a scale not seen in Palestine for decades. The Israeli military\u2019s International Law Department had spent months prior crafting \u2018legal advice that allowed for large numbers of civilian casualties<\/a>\u2019. This heralded the starting point of formal Palestinian interaction with the International Criminal Court, with an initial\u00a0failed attempt<\/a>\u00a0by the Palestinian authorities to trigger ICC jurisdiction over crimes committed in occupied Palestine. It would be a long\u00a0twelve years<\/a>\u00a0before eventually, in February and March 2021, the ICC\u2019s Pre-Trial Chamber\u00a0ruled<\/a>\u00a0that the Court does indeed have jurisdiction and the Prosecutor\u00a0confirmed<\/a>\u00a0that an investigation will now proceed. Through these years, the Office of the Prosecutor often appeared at pains to draw out the wrangling over the preliminary question of whether it could accept jurisdiction. In the meantime, Gaza was besieged and bombarded, again and again: \u2018sky of knives\u00a0\u2026\u00a0reincarnation of metal, children limp grey dust beneath buckled buildings\u2019, as captured by\u00a0Hala Alyan<\/a>.\u00a0This materialised most devastatingly in Israel\u2019s 2014 war on Gaza. Its modalities of lethal force were also adapted in 2018 to\u00a0maim and execute<\/a>\u00a0Palestinians demonstrating in the Great March of Return.<\/p>\n

\n
\"\"<\/figure>\n<\/div>\n

Joe Sacco, \u2018Footnotes in Gaza\u2019, p. 256<\/p>\n

This hot violence of intense and spectacular military assault \u2013 airstrikes and\u00a0\u00a0artillery shelling, sonic booms and white phosphorous, home demolitions and shoot-to-kill sniping, plus the resistance of Palestinian armed groups (of a decidely lesser scale and \u2018gravity<\/a>\u2019 in its reach) \u2013 will be an obvious focus for the ICC investigation into events from June 2014 onwards. But \u2018not all violence is hot\u2019, as\u00a0Teju Cole<\/a>\u00a0succinctly surmises. The slow, cold violence of Israeli apartheid has continued to plough its furrow ever-deeper. This encompasses the settlement project and\u00a0economic exploitation<\/a>\u00a0of Palestinian land and labour in the West Bank, the blanket denial of Palestinian\u00a0refugee return<\/a>, and the Israeli state\u2019s\u00a0exclusionary constitutionalism<\/a>. As Hassan Jabareen\u00a0shows<\/a>, it transcends the partition lines and permeates through a single legal order of Israeli racial domination over the Palestinians. All of these elements are ongoing, all are pillars of what Lana Tatour\u00a0emphasises<\/a>\u00a0as the overarching\u00a0settler-colonial structure<\/em>\u00a0of apartheid \u2013 and all are potentially within the remit of the ICC.<\/p>\n

And so our purpose here is not to dwell on the technicalities around jurisdiction, but rather to take the ICC conjuncture\u00a0as grounds for reflection on the politics of Palestinian legal engagement. We situate this reflection in the larger context of Israeli colonial-apartheid, thinking about Palestinian legal tactics \u2013 and the charge of the crime of apartheid in particular \u2013 in relation to political strategy. Conscious of the limits of international criminal law, we are at the same time animated by the question of whether the turn to international criminal justice as a site of struggle can feed into the more radical transformations of social, economic and ecological relations that are needed for settler-decolonisation<\/span>1<\/sup><\/a><\/span>\u00a0and liberation of Palestine.<\/p>\n

Warfare, Lawfare and the Limits of International Criminal Law<\/strong><\/h3>\n

Many may consider criminal investigation and prosecution for purposes of accountability and deterrence to be sufficient ends in themselves. Our particular concern is the potential of the ICC bid, precipitated as it was by the hot violence of the Gaza wars, to foment a rupture whereby an international tribunal contends with the cold violence of Israeli apartheid.\u00a0We are clear that law itself, especially international criminal law, is \u2018insufficient to lead Palestinians to emancipation<\/a>\u2019. Beyond the general incapacities of individualised responsibility to produce social transformation, we agree with and are\u00a0engaged in<\/a>\u00a0particular critiques of international criminal law that have come from\u00a0TWAIL<\/a>\u00a0and\u00a0Marxist<\/a>\u00a0perspectives: of international criminal law as \u2018reproduction of the civilizing mission<\/a>\u2019 and \u2018capitalism\u2019s victor\u2019s justice<\/a>\u2019.<\/p>\n

The ICC itself is a political institution which \u2018operates ideologically<\/a>\u2019 as part of our contemporary global order to \u2018sustain\u00a0prevailing constellations of power<\/a>\u2019. Kamari Maxine Clarke has shown how the Court reifies white supremacy and\u00a0helps mask and perpetuate<\/a>\u00a0core-periphery relations of economic exploitation and inequality. If the institutional dynamics at the UN were different, we would certainly be directing all arguments and energies towards the necessity of political and economic sanctions against Israel itself rather than criminal prosecutions of some officials. As things stand, however, the ICC is the institutional door that has been forced ajar, and so it is imperative to think about what space it may open for anti-colonial forms of \u2018principled opportunism<\/a>\u2019.<\/p>\n

With this in mind, we support the sentiment that the jurisdiction decision was a victory for Palestinian legal activists and a testament to their tireless work. The functional question of\u00a0whether the ICC could accept jurisdiction over a situation in Palestine under the Rome Statute\u00a0should have been straightforward \u2013 if not in response to the initial request in 2009, certainly\u00a0after Palestine was admitted as a full member of the Court in 2015.\u00a0Yet there was a very real possibility that the ICC would have found a way to reject jurisdiction as advocated by the \u2018strained arguments and conspicuous hypocrisy<\/a>\u2019 of Israel-supporting ICC members, or to continue to drag out any decision indefinitely. And so the victory, such as it is, was hard-fought. It is\u00a0a victory for Palestine over major ICC member states such as Germany, Canada, Brazil and Uganda who actively intervened to advocate that the Court refute jurisdiction (with Brazil and Uganda taking \u2018manisfestly incoherent<\/a>\u2019 positions against their own pre-existing recognition of Palestine, in favour of new-found neocolonial alliances). It is vindication for Palestinian rights organisations over the Israeli Attorney-General<\/a>\u00a0and the self-proclaimed \u2018leading experts on international law\u2019 who feature on a mock \u2018ICC Jurisdiction\u2019\u00a0website<\/a>\u00a0sponsored by Israel\u2019s\u00a0Ministry of Strategic Affairs<\/a>.<\/p>\n

At the same time, the victory is very much provisional. Political hurdles, in the form of Israeli and US opposition backed up by quintessential European\u00a0duplicity<\/a>, have been surmounted for now but will redouble in the higher-stakes contestations to come. Such external pressures will compound the particular technical and logistical challenges of prosecuting Israeli personnel in a context of staunch formal non-cooperation from Israel, and the potential for jurisdiction challenges to arise again in individual cases. Funding and basic administrative challenges are also an ongoing material issue for the Court. In her statement\u00a0confirming<\/a>\u00a0that an investigation will now be initiated, the Prosecutor was careful to temper expectations in terms of the priority and pace of proceedings, as well as striking an almost contrite tone to convince Israel to trust the ICC.<\/span>2<\/sup><\/a><\/span>\u00a0Still, Israel\u00a0confirmed<\/a>\u00a0it does not recognise the Court\u2019s authority and will not cooperate with the investigation. Israeli Prime Minister Benjamin\u00a0Netanyahu characterised the Court\u2019s decision to accept jurisdiction as \u2018pure antisemitism<\/a>\u2019. This absurd claim fits the Israeli playbook. Israel and its Ministry of Strategic Affairs have spent the last fifteen years trying to undermine the Boycott, Divestment, Sanctions (BDS) movement, and are now deploying similar tactics to delegitimise the ICC. The\u00a0appointment of an army Major General<\/span>3<\/sup><\/a><\/span>\u00a0rather than a lawyer to \u2018lead the battle against the ICC<\/a>\u2019 highlights, as observers have\u00a0quipped<\/a>, that Israel\u2019s \u2018lawfare<\/a>\u2019 is \u2018getting increasingly literal\u2019. In this context, questions of strategy and tactics are crucial.<\/p>\n

Tactics and Strategy<\/strong><\/h3>\n

In the\u00a0New Left Review<\/em>\u00a0in 1971, Palestinian intellectual and PFLP spokesperson Ghassan Kanafani\u00a0emphasised<\/a>\u00a0the need for anti-colonial struggle not to be dictated by \u2018bourgeois moralism and obedience to international law\u2019. There is a legitimate critique that, over the decades since, the Palestinian liberation project has become overly dominated by legalism and, more generally, has functioned to assuage power structures rather than disrupt them. Mezna Qato and Kareem Rabie\u00a0make the case<\/a> persuasively that organising around international law involves a reduction of the original and higher aim of \u2018until liberation and return\u2019 to a less ambitious and ultimately self-defeating resort to liberal legalism. Conscious of international law\u2019s own colonial entanglement, they argue that law-based advocacy ends up being geared \u2018towards a better colonial\u00adism rather than the end of colonialism\u2019. By fixating on Israel\u2019s excesses\u00a0and not Zionism\u2019s essence, legalist advocacy elides\u00a0the state\u2019s settler-colonial nature and the underpinning structures of imperialism and capitalism. In this sense, it is \u2018problematic to pivot movement strategy on bodies of law that emerged in order to regulate imperialism, and that often function to legalize Israeli colonization\u2019.<\/p>\n

The reference to strategy here is key. Strategy cannot hinge on law. But in certain conditions, legal tactics may work to support transformative strategy. What is needed most in the Palestinian context, as we have both argued previously drawing on the work of\u00a0Duncan Kennedy<\/a>,\u00a0Robert Knox<\/a>\u00a0and others, is \u2018a coherent political strategy<\/a>\u00a0towards which appropriate legal tactics are thoughtfully deployed\u2019 and\u00a0\u2018a robust political movement<\/a>\u00a0to inform legal advocacy and to leverage tactical gains\u2019. In this sense, engagement through law\u00a0requires an acute understanding of international legal institutions as a field of political struggle.\u00a0Knox and Ntina Tzouvala trace the lineage of such thinking in anti-colonial movements back to the Bolshevik theory of imperialism, which had\u00a0\u2018a certain\u00a0irreverence<\/em>\u00a0for international law<\/a>, and an explicit sense that it needed to be subordinated to the wider anti-imperialist project\u2019.<\/p>\n

There is a rich\u00a0and growing tradition of Palestinian scholars and activists today who are thinking deeply about these dynamics in various iterations as well, including\u00a0George Bisharat<\/a>,\u00a0Lana Tatour<\/a>,\u00a0Mazen Masri<\/a>,\u00a0Nimer Sultany<\/a>,\u00a0Samera Esmeir<\/a>,\u00a0Yara Hawari<\/a>,\u00a0Rafeef Ziadah<\/a>,\u00a0Suhad Bishara<\/a>,\u00a0Victor Kattan<\/a>,\u00a0Nahed Samour<\/a>,\u00a0Nadija Samour<\/a>,\u00a0Emilio Dabed<\/a>,\u00a0Ardi Imseis<\/a>,\u00a0Ata Hindi<\/a>, Hadeel Abu Hussein<\/a>,\u00a0Reem al-Botmeh<\/a>,\u00a0Hassan Jabareen<\/a>,\u00a0Munir Nuseibah<\/a>,\u00a0Reem Bahdi and Mudar Kassis<\/a>, and many more. Certain core threads run through their work: Israel\u2019s settler-colonial essence; its oppression of the Palestinians\u00a0as a whole<\/em>; the one-state reality over the fictions of partition; law as often central to these problems;\u00a0and the necessity of political strategy in relation to law, rights, development, recognition, and so on. Masri\u2019s\u00a0articulation<\/a>\u00a0is illustrative: \u2018law and legal tactics cannot replace strategy, but they can play a role in a strategy \u2013 one that enjoys a high level of support, mobilizes the grassroots, employs a range of tools and is guided by a clear vision\u2019.<\/p>\n

In this sense, there is scope for principled anti-apartheid legal tactics to trigger transformational possibilities, if harnessed effectively under the right conditions in service of a cogent political strategy. However, given the current state of the Palestinian leadership, and the disconnects between Palestine\u2019s political institutions, popular movements and global solidarity campaigns, such conditions and strategy remain distant. Following the PLO\u2019s abandonment of the single democratic state strategy and its \u2018pragmatic revolutionary<\/a>\u2019 tactics, and especially since the collapse of the Camp David talks signalling the putative death of the Oslo peace process, the Palestinian leadership has pursued a politics of acquiescence. They have placed faith in the idea that good native behaviour will be rewarded with imperial benevolence, despite consistently damning evidence to the contrary. Palestinian foreign policy is, of course, subject to larger systemic coercive forces, and the \u2018sovereignty trap<\/a>\u2019 that presently incapacitates it is constructed by international relations and international law.\u00a0But Palestinian officialdom has also sacrificed vital opportunities over the past two decades to reconstruct a serious anti-colonial political strategy and to channel available legal mechanisms accordingly.<\/p>\n

The 2004 ICJ\u00a0Advisory Opinion<\/a>\u00a0on the Wall offered a major opening for the Palestinian official leadership to build an alliance towards pushing UN members not to recognise or assist the illegitimate occupation infrastructure \u2013 to divest from and sanction Israel. Palestinian civil society played its part by launching its\u00a0BDS call<\/a>\u00a0in 2005 on the first anniversary of the ICJ opinion. This was inspired by the struggle to abolish apartheid in South Africa, and sought to build upon and expand the growing global anti-apartheid movement for Palestine. The Palestinian leadership should be mirroring this at an institutional level. It could have formulated an expansive, proactive strategic vision of decolonisation with which the BDS tripartite goals (ending occupation and colonisation, full equality, refugee return) align. The Palestinian leadership has instead been preoccupied with\u00a0\u2018preening like a state<\/a>\u2019 \u2013 even if that means a limited Bantustan state \u2013 and its legal iniatives have been haphazard and reactive.\u00a0Rather than lead an anti-apartheid freedom struggle, the Palestinian Authority has been implicated in\u00a0neoliberal apartheid<\/a>\u00a0and\u00a0unequal capital accumulation<\/a>.<\/p>\n

\n
\"\"
<\/figcaption><\/figure>\n<\/div>\n

Mohammad Sabaaneh, \u2018Lives interrupted\u2019, from \u2018White and Black: Political Cartoons from Palestine<\/em>\u2018<\/p>\n

This context has underpinned ongoing debates among Palestinian legal practitioners and scholars that consider what Palestinians can realistically obtain in court settings, versus what Palestinians need to do in order to catalyse fundamental paradigmatic shifts at the real cost of losing legal contests along the way. We are sympathetic to the school of thought that favours pragmatic and legalistic advancements over more radical tactics. But in the absence of an institutional strategy to harness any such incremental advances, we find this approach uncompelling.<\/p>\n

How then does a more radical tactical approach overcome the debilitating lack of a visionary programme from above? It doesn\u2019t. It is, rather, a bet placed on the capacity of movement to develop strategy in the course of what will be an explicit and pitched political contest. This approach seeks to propel strategic coherence from below in the course of fervent but fluid struggle and provocation, based on historical evidence that societies can be prepared for transformative social justice movements but cannot dictate them. This approach may be fraught, but in light of the current status quo and uninspiring alternatives, there is little to lose.\u00a0Thinking about this in the context of the ICC\u00a0\u00a0involves acceptance of the limits of the process on its own terms and places focus on how it is harnessed tactically in the \u2018legitimacy war<\/a>\u2019, regardless of victory or defeat in the courtroom. Criminal prosecutions, even if they happen, will not deliver justice for the Palestinians in the larger sense of the settler-colonial structure that shapes their lives. The struggle will remain political.<\/p>\n

With that\u00a0in mind, what tactical opportunities can be located in the ICC\u2019s exercise of jurisdiction? Michael Kearney has done important analysis on both the\u00a0war crime of transfer of settlers<\/a>\u00a0and\u00a0denial of the right to return as a crime against humanity<\/a>, while Palestinian organisations have\u00a0flagged<\/a>\u00a0the pillage, extraction and destruction of Palestinian natural resources. These are all essentially forms of colonial crime within the jurisdiction of the Court, and offer avenues into unsettling certain facets of Zionism through their prosecution. The larger structural framework within which these crimes are all committed, however, is the Israeli apartheid regime over Palestinians. Exposing the crime against humanity of apartheid itself can potentially work in tactical service of broader\u00a0anti-apartheid political strategy and grassroots organising. It can also operate as a crucial bridge on a number of fronts: linking together the\u00a0hot violence of Israel\u2019s war crimes with the cold violence of its legal structures of dispossession, exclusion and persecution; reconnecting the partitioned but shared realities of occupied, exiled and citizened Palestinians under Israel\u2019s constitutional order; and mapping the trail from individual responsibility for crimes of apartheid to state responsibility and sanctions for maintaining an apartheid regime.<\/p>\n

\n
\"\"<\/figure>\n<\/div>\n

Al-Shuhada street, Hebron, West Bank<\/p>\n

We Charge Apartheid?<\/strong><\/h3>\n

The\u00a0controversy<\/a>\u00a0which engulfed the UN\u2019s 2001 Durban anti-racism conference was precipitated by the insistence of social movements from around the world on calling Israel out as an apartheid state. This was a political and moral argument to challenge institutionalised racism against Palestinians in the context of global anti-racist action. The anti-apartheid framework became increasingly central to political organising and global solidarity through the Palestinian BDS call and initiatives like\u00a0Israeli Apartheid Week<\/a>. More recently it has informed\u00a0renewals of Black-Palestinian solidarities<\/a>\u00a0and the Black Lives Matter\u00a0demand<\/a>\u00a0for divestment from apartheid Israel. While Palestinians had\u00a0diagnosed<\/a>\u00a0and\u00a0detailed<\/a>\u00a0Israeli apartheid conditions for many decades prior, the concomitant international legal arguments had only started to be developed in the 1990s by\u00a0individual scholars\u00a0<\/a>and\u00a0Palestinian rights organisations<\/a>. More concerted legal analyses likewise began to follow after Durban. Palestinian organisations like\u00a0Badil<\/a>,\u00a0Al-Haq<\/a>,\u00a0Adalah<\/a>, and\u00a0Stop the Wall<\/a>\u00a0applied the prohibition of apartheid as part of their deconstruction of Israeli law and policy. International legal\u00a0studies<\/a>,\u00a0scholarship<\/a>\u00a0and\u00a0reports<\/a>\u00a0steadily\u00a0mounted<\/a>. The\u00a0Russell Tribunal on Palestine<\/a>\u00a0deliberated the issue in Cape Town and concluded that\u00a0\u2018Israel\u2019s rule over the Palestinian people, wherever they reside, collectively amounts to a single integrated regime of apartheid\u2019.\u00a0The UN\u00a0Special Rapporteurs<\/a>,\u00a0CERD Committee<\/a>\u00a0and\u00a0ESCWA Commission<\/a>\u00a0made similar findings in their own spheres.<\/span>4<\/sup><\/a><\/span>\u00a0There is clear momentum.<\/p>\n

\n
\"\"<\/figure>\n<\/div>\n

Palestine Human Rights Campaign poster, 1982<\/p>\n

After Palestine joined the ICC in 2015, a collective of Palestinian rights organisations began to file submissions to the Prosecutor detailing crimes committed by\u00a0high-level Israeli civilian and military officials. The first three submissions related to the hot violence of the\u00a0wars<\/a>\u00a0and\u00a0siege<\/a>\u00a0on Gaza. The fourth, a 700-page brief\u00a0submitted<\/a>\u00a0in 2017, covered war crimes and crimes against humanity in the West Bank \u2013 including the crime of apartheid. Following the Pre-Trial Chamber\u2019s February 2021 jurisdiction decision, the organisations\u00a0reiterated<\/a>\u00a0the charge, albeit limited in this context as it is to the manifestations of apartheid in the West Bank:\u00a0Israel\u2019s systemic segregation and subjugation of the Palestinians constitute \u2018an institutionalised regime of racial domination and oppression, and amount to the crime of apartheid; it is imperative that the Prosecutor include acts of apartheid in the scope of her investigation\u2019.<\/p>\n

While Palestinian rights organisations filing submissions to the ICC today are more legalistic in their approach and less radical in their politics, we understand their \u2018charge\u2019 of apartheid as carrying some echoes of the\u00a0We Charge Genocide<\/em><\/a>\u00a0petition<\/a> submitted by the Civil Rights Congress to the UN in 1951. Knox and Tzouvala\u00a0recount<\/a>\u00a0how the Black radicals behind that petition were informed by Marxist conceptions of imperialism and political economy as much as by the Genocide Convention itself. The petition represented a \u2018tactical deployment of international law in order to serve broader purposes of radical social transformation\u2019, and was consciously aimed at \u2018connecting US racism at home with structures of US imperialism abroad\u2019. It was \u2018invoked tactically to strengthen those forces who were opposing racism and imperialism\u2019 more than in expectation that an international legal process would itself resolve deep racial injustice in the United States. Coming at a crucial transitional moment for the Black freedom movement, UN institution-building processes, Cold War manoeuvring, and Third World liberation struggles alike, the petition was significant in mobilising internationalist support and damaging US delegations at the UN. Eleanor Roosevelt lamented that the petition was so \u2018prominently featured in the papers\u2019<\/span>5<\/sup><\/a><\/span>\u00a0during the UN General Assembly in Paris and\u00a0admitted<\/a>\u00a0that \u2018we were hurt in so many little ways\u2019 by it. It also had lasting ramifications within the US, both on the back of its submission to the UN and its wide circulation in book<\/a> form. It exposed the extent of ongoing racial violence, \u2018whipped up the kind of necessary pressure that led to the final cracking of the spine of Old Jim Crow\u2019,<\/span>6<\/sup><\/a><\/span>\u00a0and charted a more radical course for equality struggles that\u00a0continues to reverberate<\/a>.\u00a0William Patterson, primary architect of the petition, was forthright in response to criticism of his organisation\u2019s \u2018politicisation\u2019 of civil rights by conservative and anti-communist elements of African-American leadership: \u2018The attitude of using only the legal approach had something of the Booker T. Washington in it. The NAACP leadership did not understand the gravity of the situation\u2019.<\/span>7<\/sup><\/a><\/span><\/p>\n

Though coming in a very different moment and political context,<\/span>8<\/sup><\/a><\/span>\u00a0the Palestinian activist charge of Israeli apartheid is a comparable vanguard assertion of institutionalised oppression as international crime beyond what mainstream representatives of the oppressed group have articulated. It is likewise one which the offending state goes to great lengths to undermine as beyond the pale. Crucially, it is also the legal claim that most directly feeds into the mass popular mobilisation of Palestinian and global social movements over the last twenty years, which have emphasised the racialised legal structure of settler-colonial dispossession.<\/p>\n

Even with this relatively radical approach, the distinct tactical risks in engaging the ICC generally and the crime of apartheid specifically must be acknowledged. Most obviously, it is a tactic without control over the agenda when compared with other forms of civil or inter-state litigation. The Prosecutor may choose to ignore apartheid entirely and focus the investigation on more discrete war crimes, irrespective of Palestinian interventions.<\/p>\n

Warning signs are already there in the scope of the investigation. In the Prosecutor\u2019s\u00a0summary of preliminary examination findings<\/a>, several crimes are identified as likely to have been perpetrated. The document refers to five categories of war crimes committed by Israel \u2013 four specific to Gaza, plus transfer of settlers into occupied territory \u2013 and six categories of war crimes when it comes to Palestinian armed groups. There is no reference to apartheid or any other crimes against humanity. That said, the document emphasises that the crimes mentioned are \u2018illustrative only\u2019 and the \u2018investigation will not be limited only to the specific crimes that informed the assessment at the preliminary examination stage\u2019. A new Prosecutor will take over before any investigation gathers pace, adding another variable to this mix.<\/span>9<\/sup><\/a><\/span><\/p>\n

For Israeli officials to be indicted for apartheid, the prosecution needs to show an intention to maintain systemic racial oppression. There is a perception that this element of intent makes it more difficult to prove than some other categories of crime. But the intentional nature of the regime is what underpins the significance of the crime of apartheid, and the concerted design and maintenance of Israel\u2019s oppressive regime is well-documented. As a structural crime, it demands prosecution of its political architects at the highest level. Because of this, combined with \u2018the racial politics of international criminal law<\/a>\u2019, there has never been a prosecution of the crime of apartheid in any court.\u00a0In this sense, we see the charge of Israeli apartheid as being also an indictment of, and challenge to, international criminal law itself.\u00a0If\u00a0the ICC cannot bring itself to investigate and prosecute apartheid crimes in the most widely-analysed instance of apartheid since South Africa \u2013 after it has been presented with documentation and asked to do so by those subjected to the apartheid regime \u2013 that will say a lot about the politics of international criminal law.<\/p>\n

The very fact of Palestinians submitting the claim of apartheid to an international tribunal can make its own tactical contribution to anti-colonial strategy, as global consciousness of the cold violence of Israeli apartheid continues to grow. All too often,\u00a0cold violence<\/a>\u00a0\u2018takes its time and finally gets its way\u2019 and so, against that, a sharper focus on the strategic horizons ahead is essential. We see a place for legal contestations in that vista, though we should be under no illusions about the prospects of seeing Netanyahu and his counterparts on the stand, or the likelihood of big courtroom \u2018victories\u2019 for Palestinians. And, ultimately, the law cannot serve as a substitute for \u2018what<\/a>\u00a0only a critical mass of people are capable of achieving\u2019.<\/p>\n

NOTES:<\/strong><\/p>\n

    \n
  1. <\/span>Settler-decolonisation here exceeds the international legal understandings of colonialism and decolonisation that began to crystallise in the aftermath of the First World War. It evokes Indigenous Studies literatures which have clarified that land and territory remain central elements of settler-colonial domination and its unravelling. It also challenges time as a linear continuum whereby the Indigenous body stands in as a primordial figure and therefore an anachronistic possibility of becoming. Relevant works include Nick\u00a0Estes,\u00a0Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance\u00a0<\/em>(Verso, 2019); Audra Simpson,\u00a0Mohawk Interruptus: Political Life Across the Borders of Settler States\u00a0<\/em>(Duke University Press, 2014); Eve\u00a0Tuck & K Wayne Yang, \u2018Decolonization is not a Metaphor\u2019 (2012) 1:1\u00a0Decolonization: Indigeneity, Education & Society<\/em>;\u00a0Rana Barakat, \u2018Lifta, the Nakba, and the Museumification of Palestine\u2019s History\u2019\u00a0(2018) 5:2\u00a0NAIS: Journal of the Native American and Indigenous Studies Association<\/em>\u00a01;\u00a0Lana Tatour, \u2018The Culturalisation of Indigeneity: the Palestinian-Bedouin of the Naqab and Indigenous Rights\u2019 (2019) 23:10\u00a0International Journal of Human Rights<\/em>\u00a01569; Raef\u00a0Zreik, \u2018When Does a Settler Become a Native? (With Apologies to Mamdani)\u2019 (2016) 23:3\u00a0Constellations\u00a0<\/em>351.<\/li>\n
  2. <\/span>On the question of pace and priorities, according to the Prosecutor\u2019s statement:\u00a0\u2018How the Office will set priorities concerning the investigation will be determined in due time, in light of the operational challenges we confront from the pandemic, the limited resources we have available to us, and our current heavy workload.\u00a0\u2026\u00a0To both Palestinian and Israeli victims and affected communities, we urge patience\u2019. On the point about appealing to Israel, the Prosecutor goes out of her way to emphasise that in the other situation previously referred to the Court regarding Israel \u2013 the Israeli military attacks on the Mavi Marmara humanitarian flotilla \u2013 she declined to pursue any charges. The statement\u2019s references to complementarity and continuing scope for domestic investigations, as well as to the Court\u2019s commitment \u2018to investigate incriminating and exonerating circumstances equally\u2019, also appear designed to placate specific concerns that Israel has raised previously.<\/li>\n
  3. <\/span>Previously this general, Itai Virob [also transliterated Veruv], was a brigade commander placed under investigation between 2009 and 2011 \u2018when he admitted he encouraged his soldiers to use violence against Palestinians they were questioning\u2019.\u00a0Israel\u2019s Military Advocate-General concluded that Virob had not been advocating \u2018violence for the sake of violence\u2019 but rather \u2018violence which was necessary for the mission\u2019. So Virob was absolved in 2011, promoted straight away by then Israeli military Chief-of-Staff, Benny Gantz, and continued to rise up the ranks. See\u00a0+972 Magazine<\/em>\u2019s report\u00a0here<\/a>.<\/li>\n
  4. <\/span>Most recently, Israeli human rights organisations\u00a0Yesh Din<\/a>\u00a0and\u00a0B\u2019Tselem<\/a>\u00a0have also adopted the apartheid framework \u2013 albeit based on somewhat more \u2018liberal readings of Israeli apartheid<\/a>\u2019 \u2013 and international human rights organisations are expected to follow.<\/li>\n
  5. <\/span>Gerald Horne,\u00a0Communist Front? The Civil Rights Congress, 1946\u20131956<\/em>\u00a0(Associated University Presses, 1988) 172.<\/li>\n
  6. <\/span>Ibid, 167.<\/li>\n
  7. <\/span>Quoted in Carol Anderson,\u00a0Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955<\/em>\u00a0(CUP 2003) 210. The NAACP is the National Association for the Advancement of Colored People. Booker T. Washington was an early 20th<\/sup>\u00a0century moderate Black leader who was seen by many contemporary and subsequent strands of civil rights activism as too accommodating of white supremacy.<\/li>\n
  8. <\/span>Even physically submitting\u00a0We Charge Genocide<\/em>\u00a0to the UN was a debacle for the CRC. Patterson had asked WEB Du Bois and Paul Robeson to join him in Paris to present the petition to the UN General Assembly. The US government had, however, just attempted to prosecute Du Bois as a foreign agent and confiscated his passport, deterring him from travelling. The State Department also stripped Robeson of his passport \u2013 meaning he was only able \u2018to deliver a copy of the petition to a \u201csubordinate in the Secretariat\u2019s office\u201d in New York\u2019 (Anderson, ibid, 194). The main consignment of copies of the petition was intercepted on route to Paris, resulting in Patterson having to bring other copies in Budapest to distribute them at the General Assembly. He then had to flee Paris himself when the US embassy tried to seize his passport and deport him. The Palestinian rights organisations\u2019 submissions to the ICC were a more standard process, though not without their own backstory: the file containing the apartheid allegation was handed over to the Prosecutor by Al-Haq director Shawan Jabarin who Israel had previously detained without trial and then placed under\u00a0travel ban<\/a>\u00a0for many years, and researcher Nada Kiswanson who has been subjected to repeated\u00a0death threats<\/a>\u00a0due to her work on the ICC and Palestine.<\/li>\n
  9. <\/span>There has been much speculation about the potential implications of Karim Khan\u2019s appointment as incoming Prosecutor, for the ICC generally and the Palestine investigation specifically.\u00a0\u00a0According to some media conjecture, \u2018Israel\u00a0reportedly<\/a>\u00a0hopes Khan may be less hostile or even cancel\u2019 the investigation. An April 2021\u00a0letter<\/a>from British Prime Minister Boris Johnson to the Conservative Friends of Israel group put it on record for the first time that the British government is opposed to the ICC investigation in Palestine, and also appears to claim the appointment of Khan, a British national, as a victory for Britain and its allies seeking to \u2018reform\u2019 the Court in accordance with their own agenda. The role of the Prosecutor is formally independent of any state interests, but clearly Johnson\u2019s wording must be either a reflection of a pre-designed diplomatic initiative, or a statement of intent to mark Khan\u2019s card.<\/li>\n<\/ol>\n

    \"\"<\/a>Download PDF<\/a><\/p>\n

    _____________________________________________________<\/p>\n

    \"\"<\/a>Noura Erakat – <\/span>Assistant Professor of Africana Studies. <\/span>Areas of Specialization: <\/span> International Law, Humanitarian law, Human rights law, National Security Law, Refugee law, Critical race theory. <\/span>Livingston Campus – <\/span>Education: <\/span> J.D. and undergraduate degrees from the University of California at Berkeley and a LLM in National Security from Georgetown University Law Center. LLM in Legal Education upon completing the Abraham L. Freedman Teaching Fellowship at Temple University, Beasley School of Law.<\/span><\/em><\/p>\n

    \"\"<\/a>John Reynolds joined the Department of Law in Maynooth in 2014. Prior to this he taught at the European Inter-University Centre in Venice, and the Irish Centre for Human Rights at NUI Galway, where he held the NUI EJ Phelan Fellowship in International Law. John holds PhD and LLM degrees in international law from NUI Galway. John’s research focuses on questions of international law in relation to colonialism, emergency, race and political economy. His work is informed by and engages with the insights of Third World Approaches to International Law (TWAIL).<\/em><\/p>\n

    Go to Original – twailr.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

    Reflections on Palestinian efforts to engage the International Criminal Court, in the context of Israeli settler-colonialism and both its spectacular and structural violence. Conscious of the limits of international criminal law, we think about Palestinian activist legal tactics \u2013 and the charge of the crime of apartheid in particular \u2013 in relation to political strategy.<\/p>\n","protected":false},"author":4,"featured_media":51767,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[54],"tags":[2221,120,1829,1030,87,267,1029,487,2395,2414,2415,2416,771,1027,2417,85,2418,109,287,1572,985,880,292,70,126,1025,886],"class_list":["post-186556","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-palestine-israel-gaza-genocide","tag-checkpoints","tag-conflict","tag-coronavirus","tag-fatah","tag-gaza","tag-geopolitics","tag-hamas","tag-human-rights","tag-international-criminal-court-icc","tag-israeli-apartheid","tag-israeli-army","tag-israeli-occupation","tag-nakba","tag-oslo-accords","tag-palestine-israel-apartheid-wall","tag-palestine-israel","tag-palestinian-rights","tag-politics","tag-power","tag-settlers","tag-social-justice","tag-state-terrorism","tag-un","tag-usa","tag-violence","tag-west-bank","tag-zionism"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/186556","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=186556"}],"version-history":[{"count":1,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/186556\/revisions"}],"predecessor-version":[{"id":264150,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/186556\/revisions\/264150"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media\/51767"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=186556"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=186556"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=186556"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}