The decision of the International Criminal Court (ICC) that Palestine in fact constitutes a state actor entitled to bring charges of war crimes against Israeli political and military leaders, and that the ICC in fact has jurisdiction, will not be a game-changer. True, it is a good thing that Israel is held accountable for violations of International Humanitarian Law (IHL) and its crimes against the Palestinian people, and that such an action, not to say conviction, carries symbolic importance, especially to Israel’s carefully cultivated image as a peace-seeking, liberal democracy. But it also shows the limits of what is called the “human rights approach” to politics, something that has gained traction among Palestinian activists as a political solution seems to fade. “We don’t care if it’s two states, one state or ten states,” goes the refrain, “as long as we get our human rights.”
IHL and human rights conventions, however, do not comprise a political program. Nor are they intended to. They are guidelines to good government and a just society. They had aspirations to be more than that, to be instruments in curbing major violations of international norms by governments (and in the case of the ICC by individuals as well). Thus, human rights conventions – the foundational Geneva Conventions in particular – all have tribunals of signatory countries and other instruments to ensure their enforcement. These, however, have proved useless, and are seldom employed. The ICC and the International Court of Justice in the Hague (ICJ) were intended to bolster the enforcement mechanisms, but they too have been employed primarily in cases that have no bearing on the major political powers, the most visible being the Serbs Slobodan Milošević and Radovan Karadžić, Saddam Hussein and a string of African leaders, Charles Taylor and Omar al-Bashir. But a Western leader? One of ours? And Jewish Israelis to boot?! Please.…
It is still unclear whether the Palestinians’ case will ever get a hearing in the ICC. The ICC’s chief prosecutor who paved the way, Fatou Bensouda, has been replaced by a British human rights lawyer, Karim Khan, who may or may not pursue the case. The US in particular, together with Israel, have mounted a major campaign against the trial. But again, even if Israelis are convicted, besides inconveniences to the accused themselves (limitations on their ability to travel abroad especially), there will be few consequences. Remember, the ICJ back in 2004 ruled that Israel’s apartheid wall was illegal and had to be dismantled, a decision reaffirmed by the UN General Assembly, but had absolutely no impact.
So, while we welcome the possibility of a trial in the ICC and the faint hope that some Israelis will be held accountable for their actions, if anything the impotence of IHL teaches us that the decolonization of Palestine will have to be done according to a political plan, an effective strategy and massive political mobilization. IHL and the “human rights approach,” while important components, do not have the required political leverage. Only a political approach, supported by appeals to human rights, can succeed.