Since the conception of the Zionist state in Herzl\u2019s 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 \u201cproblems\u201d, 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\u2026<\/p>\n
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 \u201cwar on terror\u201d, and re-establish an international rule of law truly based on its founding principles.<\/p>\n
The Jurisdiction on Gaza: The Status Quo<\/strong><\/p>\n 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<\/a> and the International Criminal Court<\/a> are overdue indications of a changing global narrative.<\/p>\n Meanwhile, the narrational change is not some arbitrary, spontaneous, collective moral advance. Instead, it demonstrates that the ethos of N\u00fcrnberg\u2014the sombre seed of the modern international rule of law\u2014is 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\u2014a system detractors argue is more aligned with power than justice.<\/p>\n Because no global Leviathan will enforce the judgements of the international legal system, the standard objection goes, the system\u2019s 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.<\/p>\n To understand why the international rule of law has bite even if there is no guarantee for international law being enforced, consider Germany\u2019s 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\u2019s \u201cErinnerungskultur\u201d and \u201cStaatsr\u00e4son\u201d, cannot be underestimated.<\/p>\n Of course, the effectiveness of international law depends on political will. The cynics will say that Germany\u2019s vote for trust in the international legal system is anything but smoke and mirrors. \u201cI think what in practice will happen\u201d, the legal scholar William Schabas said<\/a>, \u201cis that governments like those of Canada and Germany and France and so on\u2013\u2013the United Kingdom\u2013\u2013will say, Don\u2019t come here! You can\u2019t come here because we have to arrest you<\/em>\u201d. 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.<\/p>\n Palestinians always felt \u201cthat there is a \u201cchronic antagonism\u201d between their pursuit of justice and a world in which the rules of international law are only selectively applied to certain actors\u201d, explains<\/a> 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.\u00a0 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.<\/p>\n 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.<\/p>\n Undoing the \u201cWar on Terror\u201d? <\/strong><\/p>\n About two decades ago, the \u201cwar on terror\u201d was the greatest threat to the international rule of law. As Phillippe Sands and Blinne N\u00ed Ghr\u00e1laigh argued in a paper<\/a> from 2008, \u201c[t]he \u201cwar on terror\u201d [threatened] to undermine the international legal framework of norms created for the protection of all people\u201d. 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.<\/p>\n 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: \u201cThere 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 [\u2026] safeguarding persons from terrorist attacks and respecting human rights form part of a seamless web of protection incumbent upon the state\u201d, argued Mary Robinson in a lecture<\/a> on the Berlin Declaration of the International Committee of Jurists<\/em> in 2006. The ICJ\u2019s provisional measures, effectively amounting to a ceasefire call, underline this.<\/p>\n 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<\/a> Sands and Ghr\u00e1laigh, whether in peace or crisis, to protect all people under those states\u2019 authority. In that spirit, the investigations into Ursula von der Leyen\u2019s complicity in war crimes against Palestinians in Gaza, prompted by the GIPRI<\/a>, are to be welcomed. For otherwise, if adherence to international law is used merely as a tool to penalise the \u201cother\u201d, less powerful states and actors, then international law loses all credibility.<\/p>\n 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.<\/p>\n Whatever its many challenges, the system remains anchored in fundamental principles the situation in Israel and Palestine has once again proven valuable:<\/p>\n 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.<\/p>\n\n