In this piece, Maha Abdallah and Mona Sabella, consider the struggles and solidarities concerning self-determination. While exploring the praxis, as well as the discourse around occupations and post-colonial studies, they sketch a deeply compelling insight into the lived realities of occupation and its implications for Palestinians.
Importantly, they raise the question: how effective is the ‘tool’ of international law in these struggles for self-determination?
Over the years, Palestinians have resorted to advocacy through the law, namely international law and its associated mechanisms, as one avenue for freedom, justice, and human rights. International law has become a common tool and language among academics, human rights advocates, activists, lawyers, and journalists in describing and addressing Israel’s ongoing widespread and systematic violations – from the prolonged nature of military occupation to the daily reality of apartheid and the persecution of the Palestinian people. Numerous human rights and civil society organisations in Palestine have adopted different frameworks of international law in efforts that may see an end to Israel’s settler-colonialism of Palestine and to achieve justice and human rights – with the inalienable right of the Palestinian people to self-determination being at the forefront. Despite persistent commitment to employ the law as one means for justice and human rights, the question of Palestine has illustrated constant reminders that much of the foundations of international law were built to serve imperialist agendas, utilised as a divisive and colonial tool that also contributes to the protracted fragmentation of peoples and land.
While working with the parameters and instruments of international law, ranging between the United Nations (UN) Human Rights Council (HRC) in Geneva to the International Criminal Court (ICC) in The Hague, Palestine has been coined a litmus test to the efficacy of international law. International advocacy for human rights in Palestine and for the Palestinian people has repeatedly exposed discrepancies and inconsistencies due to political biases, geopolitical and economic interests that have prevented the universal enforcement and application of international law, particularly in upholding perpetrators to account and realising inherent rights. Over the years, Palestinians have not only challenged the double standards in applied international law but also provided insights and recommendations for a revolutionised and decolonized system of international law.
Undermining Palestinians’ Right to Truth, Remedy & Justice
Many years of tireless and innovative work with instruments of international law have yielded relative progress. In February 2021, for example, the ICC finally issued a decision affirming the Court’s territorial jurisdiction over Palestine, specifically the occupied Palestinian territory, i.e., the West Bank, including East Jerusalem, and the Gaza Strip. This was later followed by a statement from the ICC Prosecutor at the time, Fatou Bensouda, announcing the opening of an investigation respecting the Situation in Palestine by the Court, which includes war crimes and crimes against humanity.
Despite the slow-paced work of the Court, following five years since the beginning of its preliminary examination, the Court’s 2021 progress was welcomed by Palestinians and those advocating for human rights and justice. In fact, it was a moment that restored a long-lost hope for accountability and justice for many, especially those who have been affected by Israeli war crimes and crimes against humanity. The moment inspired a nearing end to the appalling and pervasive culture of impunity that Israel enjoys in spite of its infamous human rights record, ongoing dispossession, fragmentation, and dehumanisation of the Palestinian people for decades. However, the political pressure exerted on the Court – as an institution, its personnel and those working with it – has undeniably obstructed and unnecessarily prolonged its work on the Situation in Palestine.
In June 2020, then US President Donald Trump issued an Executive Order imposing sanctions and targeting individuals at the ICC, including designated staff and the Prosecutor. Prior to that, the US revoked the visa of the then ICC Prosecutor Bensouda. Meanwhile, despite its unwavering commitment to accountability and the fight against impunity for internationally recognised crimes, the EU and its member states have largely adopted a selective approach in this regard, further undermining Palestinians’ right to justice. For one, contrary to custom, the EU did not welcome the State of Palestine joining the ICC in 2015. They also did not express support for the opening of an ICC investigation into the situation in the State of Palestine. Rather its member states Germany, Austria, Czech Republic, and Hungary actively argued against the Court exercising territorial jurisdiction.
Such attacks against the ICC exemplify the blatant disregard by powerful states of the international community, such as the United States and European States, of the multilateral and international legal orders when it comes to Palestine. Consequently, victims are denied access to truth, remedy and justice for the most egregious violations and crimes, whereas the perpetrator – in this case Israel – enjoys pervasive impunity. This speaks to the environment in which not only the Court operates when it comes to implementing the relevant provisions of international law in relation to Palestine and the Palestinian people, but also to other pertinent mechanisms within the same framework of law.
Against the backdrop of recurring UN-mandated commissions of inquiry and fact-finding missions, Palestinian civil society has pushed at the UN HRC in Geneva for an ongoing, open-ended investigation into violations of international law and until Israel’s settler-colonialism and prolonged military occupation come to an end. When this finally happened in May 2021, ‘powerful’ states of the international community once again chose selectiveness and prioritised political considerations over human rights and justice within the realm of international law. European member states voted against UN HRC’s unprecedented resolution establishing an ongoing Commission of Inquiry (CoI) to investigate violations on both sides of the Green Line and the underlying root causes, including systemic discrimination, repression, persecution, and apartheid. The United States has also strongly opposed this CoI as well as its first report, claiming that it “represents a one-sided, biased approach that does nothing to advance the prospects for peace”. This places the investigation under further scrutiny and attacks, which would potentially entail decreased support and resources from States, hindering the fulfilment of its mandate and sustainability.
In comparison, states members of the UN HRC have well-supported other UN-mandated investigative mechanisms such as those focused on Syria or Myanmar and have allowed for a more ambitious approach with strong recommendations and (relatively) swift outcomes for justice and accountability. The expectation here is merely that the instruments of the law and the bodies that seek to enforce them should not discriminate in the promotion and protection of human rights. Palestine and the Palestinian people should not continue to be side-lined in this framework.
Inconsistencies Fostering Impunity
Since the Russian aggression in Ukraine, it has become evident that international law remains functional and applicable in situations involving military occupation and aggression. Indeed, in recent months, the world witnessed states and international private actors, primarily of the Global North, quickly enacting provisions of international law, namely sanctions and other restrictive measures, asserting an intent to protect Ukrainians (besides other political and military objectives such as strengthening NATO). Strong action-oriented statements quickly emerged denouncing Russia’s attacks, whereas others hailed the Ukrainian’s armed resistance. This has surfaced additional frustrations about the international community’s double-standards and explicit selective application of international law
Another stark example showcasing the international community’s inconsistencies in applying international law is the European reaction to Russia’s annexation of Crimea versus the response (or lack of it thereof) to Israel’s unlawful annexation of occupied territories in Palestine and Syria. In response to Russia’s annexation of Crimea in March 2014, the EU has imposed a series of sanctions and restrictive measures. These include the ban of imports from and exports of certain products to Crimea, a ban on investments by EU companies and EU tourism services in Crimea, as well as the asset freezes and visa bans targeting tens of individuals and entities, among others.
Israel annexed the occupied eastern part of Jerusalem in 1967 and then Syria’s occupied Golan in 1981. Both instances triggered wide rejection from the international community, as reiterated in numerous UN Security Council and General Assembly resolutions since. The resolutions confirm the unlawfulness of Israel’s annexation of occupied territory, the illegality of its settlement enterprise and the denial of the Palestinian people the right to self-determination. Israel has de facto annexed large parts of the West Bank, which has only been formally recognised by some States such as Ireland in May 2021.
Annexation, whether of Crimea or the West Bank, is prohibited under international law and amounts to the crime of aggression under the Rome Statute of the ICC. Nonetheless, despite its blatant disregard and ongoing colonisation of Palestinian land for Israeli-Jewish-only settlements that constitute a war crime, Europe continues to reward Israel through cooperation and trade agreements, while also affording it unconditional political support and resources further incentivizing Israel’s settler-colonialism and grave breaches of international law.
As the EU remains Israel’s largest trade partner, significantly contributing to its economy which encompasses its illegal settlement enterprise, Israeli settlement products (e.g., dates, herbs, fruits, and vegetables) are exported as “products of Israel” although grown in occupied land and using unlawfully appropriated water. Moreover, in July 2022, the 27 EU foreign ministers agreed to reconvene meetings under the EU-Israel Association Council that were suspended for nearly a decade. The resumption, which seeks to strengthen economic and diplomatic ties with Israel comes at a time of Israel’s relentless killing of children and journalist Shireen Abu Akleh, continued closure and blockade of the Gaza Strip and repeated brutal military assaults against it, expedited advancement of settlements, ongoing demolitions and forcible transfer of Palestinians in Masafer Yatta and elsewhere – among numerous other widespread and systematic violations and crimes. Further to this is bolstering Israel’s institutions and power through other areas, including the energy sector and aviation.
In answering the relevant obligations under international humanitarian and human rights law, states, including those in Europe, should entirely stop trade with settlements, ban the sale of products and services from illegal Israeli settlements as part of their duty of non-recognition and non-assistance. This is in addition to suspending all cooperation, trade, and military agreements on the basis of human rights criteria, as well as adopting restrictive measures such as travel bans and assets freeze against those involved in the unlawful appropriation and exploitation of Palestinian land and resources, the settlement enterprise, annexation, and pertinent violations.
This piece demonstrates some of many instances relating to practical discrepancies in the application of international law in Palestine and for the Palestinian people. This has had multifaceted negative impacts on the Palestinian people in their struggle for freedom and realising basic rights, further adding to the suffering endured. This has also resulted in rising criticism and scepticism among Palestinians and practitioners surrounding the effectiveness and legitimacy of international law and its instruments in realising basic rights, dignity, and protection for the Palestinian people in the face of decades of relentless Zionist-Israeli aggression and persecution.
This scepticism is further magnified when Palestinian human rights defenders, advocates and activists become subject to serious coordinated campaigns of harassment, disinformation, and attacks that seek to delegitimise, hinder, and cease their important work in the pursuit of rights, justice, and liberation. Such aggression, which also features across the globe among authoritarian and colonial regimes, is premised on rejecting and criminalising tools of resistance to settler-colonialism, foreign domination, violence and injustice. The ultimate aim is to intimidate and silence.
Considering what international law has achieved, or rather failed to, for human rights in Palestine over the years, its criticism is only fair. It is all the more reason why it is necessary to analyse it critically, while also acknowledging its limitations such a context. Otherwise, international law risks further redundancy and sheer ineffectiveness amid an increasingly polarised world, increasing deviations from the rules-based multilateralism and international legal framework by states, further jeopardising human rights and dignity.
Image: AFP/Getty (edited).