“Pax Falastini”

Since the conception of the Zionist state in Herzl’s utopia, the relationship between Israel and Palestine has been the thermometer of global politics: Early socialist experiments, 19th century state-building fantasies, imperial treaties, international solutions for domestic “problems”, safety for the prosecuted, Resolution 181 (the test case for modern (neo-colonial) international law, as some say), a laboratory for diplomatic strategies amidst the cold war, entangled in the war on terror, an object of decolonisation demands…

What does this laboratory-status of Israeli and Palestine mean for the international rule of law? This commentary seeks to explore a critical juncture and takes a cautiously optimistic stance. The Gaza jurisdiction, it is argued, holds the potential to solidify the international rule of law, undo the damages done during the “war on terror”, and re-establish an international rule of law truly based on its founding principles.

The Jurisdiction on Gaza: The Status Quo

For too long since the beginning of the unfolding of events in Gaza, it seemed as if this thermometer indicated global neglect. Against the background of decade-long apathy to the Palestinian plight, the interventions at International Court of Justice and the International Criminal Court are overdue indications of a changing global narrative.

Meanwhile, the narrational change is not some arbitrary, spontaneous, collective moral advance. Instead, it demonstrates that the ethos of Nürnberg—the sombre seed of the modern international rule of law—is still very much alive. Indeed, the proceedings at international courts represent a watershed moment in the development of what cynics often dismiss as the empty norms of international law—a system detractors argue is more aligned with power than justice.

Because no global Leviathan will enforce the judgements of the international legal system, the standard objection goes, the system’s proceedings and orders are a toothless legal theatre. The proceedings on Gaza, however, suggest otherwise: The system itself is anything but toothless. It wields power over brute force. The global reactions to the recent jurisdiction indicate that the idea of an international rule of law itself truly unsettles those who rule by might.

To understand why the international rule of law has bite even if there is no guarantee for international law being enforced, consider Germany’s response to the arrest warrants against the Israeli head of state issued by the International Criminal Court. In a ground-breaking reaction, the German government conceded that pitting special historical responsibilities against the international rule of law is a false dichotomy. The significance of this response, in the context of Germany’s “Erinnerungskultur” and “Staatsräson”, cannot be underestimated.

Of course, the effectiveness of international law depends on political will. The cynics will say that Germany’s vote for trust in the international legal system is anything but smoke and mirrors. “I think what in practice will happen”, the legal scholar William Schabas said, “is that governments like those of Canada and Germany and France and so on––the United Kingdom––will say, Don’t come here! You can’t come here because we have to arrest you”. However, considering that issuing an arrest warrant for what is perceived as a Western head of state presents a significant stress test for the institution, any acknowledgement of trust in the prosecution signals trust in the international rule of law. Should Western governments abide by their promises, then we can justifiably say that the international rule of law has finally triumphed.

Palestinians always felt “that there is a “chronic antagonism” between their pursuit of justice and a world in which the rules of international law are only selectively applied to certain actors”, explains Issam Younis, director of the Gaza-based Al Mezan Center for Human Rights. The cases before the international courts are a great leap towards an end of this selective impunity.  This, however, I acknowledge is a very optimistic view. Cynics will look at this junction and keep saying the oppositive, that as much as the responses to the situation in Gaza have the potential to strengthen international rule of law, we might rather witness its eventual downfall.

Gaza emphasises that we are, frankly, at a pivotal juncture, facing a choice between a global order dictated by a few powerful individuals and states, and a law-based order founded on global consensus and international law. What happens in Palestine right now, it will determine whether this noble idea of the international rule of law is worth fighting for.

Undoing the “War on Terror”?

About two decades ago, the “war on terror” was the greatest threat to the international rule of law. As Phillippe Sands and Blinne Ní Ghrálaigh argued in a paper from 2008, “[t]he “war on terror” [threatened] to undermine the international legal framework of norms created for the protection of all people”. Responding to this threat, the international rule of law, they argued, must be promoted, and faith must be restored in the strength and relevance of international law norms and frameworks. Arguably, the recent cases on Gaza, and the responses from European governments, may make us (cautiously) optimistic about the restoral of faith in the strength and relevance of international law.

The rulings on Gaza have the potential to turn back the clock on the damages done to the system throughout the years of anti-terrorism jurisprudence: “There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights […] safeguarding persons from terrorist attacks and respecting human rights form part of a seamless web of protection incumbent upon the state”, argued Mary Robinson in a lecture on the Berlin Declaration of the International Committee of Jurists in 2006. The ICJ’s provisional measures, effectively amounting to a ceasefire call, underline this.

What is more, by throwing a wedge into Israeli impunity, the international legal system has reacted correctly in safeguarding the rule of law over political strategies or illusions. International law loses credibility if it is not consistently applied to all states, at all times, argue Sands and Ghrálaigh, whether in peace or crisis, to protect all people under those states’ authority. In that spirit, the investigations into Ursula von der Leyen’s complicity in war crimes against Palestinians in Gaza, prompted by the GIPRI, are to be welcomed. For otherwise, if adherence to international law is used merely as a tool to penalise the “other”, less powerful states and actors, then international law loses all credibility.

At the same time, by issuing arrest warrants for senior Hamas leaders, the international criminal system responded positively to new challenges, such as the issue of breaches of international law by non-state actors. Approaching new challenges does not suggest that the international legal system is fundamentally flawed. Instead, the international legal system is flexible and can adapt to new challenges and variations on the geopolitical thermometer.

Whatever its many challenges, the system remains anchored in fundamental principles the situation in Israel and Palestine has once again proven valuable:

1. The promotion of universal respect for, observance of, and protection of all human rights and fundamental freedoms for everyone, in accordance with the Charter, the Universal Declaration of Human Rights, and other instruments related to human rights and international law, whose universal nature is unquestionable (paragraph 120).
2. The recognition of the need for universal adherence to and implementation of the rule of law at both national and international levels, reaffirming their commitment to an international order based on the rule of law and international law (paragraph 134(a)).

In sum, the recent jurisdiction on Israel and Palestine indicate how international law is not overly complex, ineffective, or excessively restrictive, as its critics often lament. Instead, it provides standards and mechanisms to hold accountable those who commit heinous crimes or threaten national and international security. It protects states from unlawful interference and shields individuals from arbitrary violations of their rights by the state.

Peace in Palestine? A Law-Made Peace?

In the summer of 2023, in occupied Bethlehem, I met with the representative of Badil, an assertive Palestinian woman with an American accent, who navigates the cobblestones of the Old City in French loafers. She passionately advocated for the dismantling of the occupation regime through a series of legal proceedings akin to the Nürnberg Trials. Her vision on paper was compelling: equal rights in a one-state structure, an unconditional right of return, post-hoc accountability mechanisms, and a complete dismantling of the settler colonial regime. She emphasised that taking a “settler colonial framework” seriously requires us to think beyond the Oslo Accords, beyond the ‘67 borders, beyond the ‘48 Partition Plan, and even beyond the Balfour Declaration, which she correctly identified turned Herzl’s utopia into geopolitics. While I found her ideas inspiring, I doubted their feasibility. Now, a year later, I wish to revoke our initial scepticism!

The global order of Pax Falastini––the world after the “Palestinian Peace”––would be unrecognizable: awakened from its neo-colonial slumber and its imperial hangover shaken off, we can envision a global order governed by truth and justice, with brute power kept at bay. This is a global order in the spirit of Nürnberg, in which the two provisions above guide and structure international relations in times of peace and conflict.

The global enthusiasm for the recent rulings on Gaza show that the international rule of law must not remain a dream, if only we will it. It does, however, require an orchestrated political will to protect the international legal system from political smear campaigns. Will the architecture of international law crumble before political power? Will might remain right, or right be might?

Why were, say, the Chagos and Myanmar cases, while important of a different magnitude? Why is Gaza precisely this turning point for the international rule of law? Unlike many previous cases before the international courts,

Israel and Palestine have been a distinct laboratory for the world’s moral and political consciousness—a stage where the global political mind plays out its subconscious desires. This accounts for the special status of the Gaza jurisdiction. This time, it seems as if many of us might desire truth over power, accountability over impunity, civilization over its discontents. A Palestinian peace will be the victory of international law, and the victory of international law the basis of peace in Palestine.