Guest Post: Deal with the substance, not the activists! A Response to ‘Of Legal Reasoning and Wishful Thinking: The ICC and Gaza’

Guest Post by Michael Kearney (in his personal capacity) (with response by Dov Jacobs below)

“I’m not surprised at the conclusion that Al Haq’s position paper on the submission by the Palestinian Authority of a declaration to the ICC is ‘ultimately flawed and unconvincing’ (and I say that not because I doubt the intellectual honesty of the drafter of the posting, but because I doubt he would have published the post had the conclusion been otherwise…)”.
The assertion of the author of the post, that the position would not have been published had its conclusions been to the contrary is redundant. Apologies for having appeared facetious, but given the momentous human rights violations perpetrated against Palestinians living under foreign occupation, why would Al Haq waste its scarce time and resources arguing for further exclusion of the Palestinians from the protections offered by participation in the international legal framework?
Furthermore, the tone of the posting does not provide a bulwark for the several criticisms aired therein. It appears that the author is engaged in mirror politics. Take the assertion that Al Haq is ‘taking the moral high ground’ and labelling those who disagree with its reasoning or conclusions as ‘enemies of the cause’. I’m not convinced that a position paper, whose goal is to encourage the extension of the rule of law to a people systematically excluded from recourse to justice, can be summarily dismissed on such grounds. To claim that Al Haq rejects those who may disagree with its reasoning or conclusions as ‘enemies of the cause’ is ludicrous. Al Haq has consistently sought to engage and debate with anyone who will listen, and there are many shades of opinion within the organisation. The author should consider providing examples to back up his accusation, or he should retract the statement.
In the many cases – ranging from decisions of the Israeli High Court to statements from the likes of NGOmonitor – in which staff of Al Haq are demonised as terrorists or subversives on the basis of secret evidence, hearsay, or prejudice, or are accused of engaging in anti-democratic ‘lawfare’, they will defend their principles and actions, and seek to condemn disreputable and hypocritical accusations. Al Haq does not condemn nor slander bona fide opinions or reasoning. As an organisation working in an environment where the brutality and violence of the occupation is all pervasive, Al Haq respect instead the principle of freedom of expression, and remain conscious that it may not always be correct.
As an example of the slander to which Palestinian and Israeli human rights activists are routinely subjected to I’d refer readers to the Rights & Democracy controversy which Prof Schabas has posted about at:
The immediate posting has also challenged and dismissed as incorrect the reference in para 20 of the Al Haq position paper, that the ‘sole premise’ for rejecting the PA declaration would be that Palestine is not a state. Perhaps the language used gives the impression that we are dismissing too lightly what on the face of it is an obvious and fundamental obstacle which automatically demands the rejection of the PA declaration.
Al Haq are attempting to encourage an expansive interpretation of the meaning of ‘state’ under the Rome Statute because we think a solid argument can be made to justify such a move. That is Al Haq’s prerogative, since in spite of the author’s assertion that the law is settled, a situation such as that raised by the Declaration is not explicitly provided for in the Statute, nor is there any consensus as to what constitutes a state for the purposes of international law. It is precisely in such a situation of ambiguity and controversy that all parties are entitled to submit their legal arguments and advocate a point of view. This is characteristic of the human rights movement, and of international legal scholarship as a whole. Al Haq are seeking to participate by making their arguments, encouraging debate, and fundamentally, with the genuine aim of remedying Palestinians exclusion from the rule of law. This is not something to apologise for, nor is there any attempt to disguise it.  
Al Haq’s paper, however, is not politics, even if acceptance of its premise obviously has political ramifications. It is engagement with the process of academic and practical legal debate and something which Palestinians are attempting through international fora such as the Human Rights Council and now through the ICC framework. Thus, as the conclusion of the position paper stresses, it is encouraging the OTP to accept the PA declaration as legitimate for the reasons suggested, arguing that a conservative reading of the text of the statute is contrary to the interests of justice and of pertinent developments in international law. The paper seeks to support this call on the basis that any such decision on jurisdiction as made by the OTP will be reviewed by the pre-trial chamber, and will subsequently be liable to be sent to the appeal chamber. This should answer the question as to ‘Who is to decide what is best for whom?’
Fair arguments have been posted elsewhere rejecting arguments to the effect that for the Rome Statute, ‘state’ should not be interpreted more liberally than usual in international relations. These are welcome and will be engaged with critically. This posting by contrast deals with none of the substance of the argument. It has not dealt with the lack of definition of ‘state’ in international law or in the Statute. In criticising the ‘linking’ of ‘situation’ and ‘state’ the post misses the point, namely not that there is a direct analogy between the two, but that in the case of self-referrals and ‘situations’, the ICC process has demonstrated a willingness and ability to progressively interpret and apply the Statute where it is just and valid to do so.
The position paper explicitly restricts its analysis to article 12(3) since that is the provision under which the declaration has been made. It follows logically that if Palestine is considered a state for the purpose of 12(3), then so would it for 12(2), and since the PA issues the equivalent of passports to its nationals (the Palestinians who are living in the OPT other than East Jerusalem which Israel has claimed to annex), there should be no additional problem with either paras (a) or (c). The reasoning in limiting the discussion to 12(3) in the position paper was to accentuate the distinction between the fact that the PA have attempted to engage with a declaration as opposed to seeking to become a full state party to the Statute.
The posting also ignores the substance of the approach which the OTP has taken in determining the validity of the PA declaration, claiming to not understand how they are relevant. They are relevant since this has been the stated approach of the OTP in seeking to come to a decision as to accepting the declaration. Novel approach? Certainly, but one which is already in motion, and clearly, the fact that the Palestinian authorities have been recognised by the UN General Assembly as having jurisdiction over violations of the laws of war, and a duty to investigate and prosecute for violations, is relevant to the question as to whether the PA can consent to its jurisdiction being transferred to the ICC.
As the position paper highlighted at para 44: “The questions posed to the PA by the OTP should not be considered as the only possible grounds by which the Court can make a decision as to the validity of the PA’s Declaration, but since they are the grounds that have been proposed, and on which proceedings are reliant, the necessity of their being answered in the positive is crucial for the PA application to succeed. That the OTP may decide subsequently not to investigate alleged crimes committed on Palestinian territory on grounds of complementarity or gravity is a matter for another day. That the Prosecutor may decide not to make any decision is also another matter.”
The analysis of these questions as found in the position paper is something which has not been addressed by any journal article or any other report that I am aware of. It would be better if rather than dismissing Al Haq for being delusional about our ‘political agenda’, the substance of the issues were addressed in a rigorous and intellectual fashion.
The question is put: ‘Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? [sic]’. Al Haq’s paper has not suggested, nor implied, that any country can make a 12(3) declaration about Gaza, nor is there any reason to draw such a conclusion from either our reasoning or our conclusions.
Although now I am moving towards engaging in precisely the type of human rights contextualisation the posting critiques, I wish to take the opportunity to make an additional, relevant, point. The Israeli government is working towards changing the rules of international humanitarian law precisely in the way the posting criticises, outside the legal framework, and purely through power politics and diplomatic moves. Following the Human Rights Council’s endorsement of the Goldstone Report, Israeli PM Netanyahu stated that efforts to adapt the laws of armed conflict would be one element of a legal and diplomatic ‘battle’. Netanyahu’s office stated that the PM had ‘instructed the relevant government bodies to examine a worldwide campaign to amend the international laws of war to adapt them to the spread of global terrorism’, a move described by Defence Minister Barak as being necessary ‘in order to facilitate the war on terrorism’. Speaking with Danish Justice Minister Brian Mikkelsen as part of a diplomatic campaign to solicit support amongst the international community to reject the findings of the Goldstone Report, FM Lieberman said that ‘The rules of war need to be changed to allow democracies to combat terrorist threats’.
Following the issuance of an arrest warrant in the UK against Tzipi Livni, British FM David Miliband met with Israel’s ambassador on 15 December and stated that legislation ‘permitting judges to issue arrest warrants against foreign dignitaries without any prior knowledge or advice by a prosecutor must be reviewed and reformed’, later confirming that the government ‘is looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again.’ British PM Gordon Brown also threw his weight behind moves to change the law, telephoning Livni to say he ‘completely opposed’ the issuance of the arrest warrant and that she was welcome in the UK at any time. The UK’s Attorney General, Baroness Scotland, spoke at the Hebrew University of Jerusalem in January 2010 to assure Israeli officials of the steps being taken in the UK to ensure they are welcome, regardless of whether they may have committed war crimes or crimes against humanity. She reiterated that the British government is ‘looking urgently at ways in which the UK system might be changed to avoid this situation arising again’.
I gave these examples since I’d submit that the posting, is misguided in accusing Al Haq of attempting, somehow illegitimately, to change the rules of international law. The irony here is that it is Israel which is actively pursuing a course which Palestinian human rights advocates are being accused of. The threat posed to the principles of distinction and of proportionality by Israeli attempts to reshape international humanitarian law to defend policies such as the Dahiye Doctrine has been identified by Justice Goldstone. Before the Human Rights Council, he considered Israeli application of the Dahiye Doctrine against Palestinians in Gaza. He noted that the UN Fact Finding Mission had closely examined pronouncements made by Israeli political and military leaders which stated in clear terms that they would hit at the entire Hamas infrastructure in Gaza: ‘If “infrastructure” were to be understood in that way and become a justifiable military objective, it would completely subvert the whole purpose of IHL built up over the last 100 years and more. It would make civilians and civilian buildings justifiable targets. These attacks amounted to reprisals and collective punishment and constitute war crimes.’
Alas, the UN Security Council is unlikely to refer the situation in the occupied Palestinian territory to the ICC, but I’d suggest that this is not simply due to US intransigence but is also equally applicable to British, French, Russian, and Chinese opposition.
And to raise a final issue with the posting, the conclusion that human rights activists, ‘of all people,’ should agree with ‘this concept of liberty that you can’t impose something on someone against his will’ is bizarre. Should human rights activists have opposed the referral of the Darfur situation to the ICC because Sudan has not ratified the Rome Statute? Should human rights activists oppose the prosecution of alleged Somali rapists on the basis that they did not consent to the Torture Victim Protection Act? (Communal Groups Back Somali in Bid To Block Israel Lawsuits Should human rights activists have opposed the CERD committee’s expansion of the definition of racial discrimination to include descent-based discrimination in the caste system because India hadn’t consented…?
Thanks for the invitation to post a response!

Response by Dov Jacobs

Thank you Michael for your strong rebuttal of my post and your participation in this interesting debate. And for being my first guest post! Because I am aware that my “aggressive” style can sometimes cloud the real substantial points I make, I would like to propose some clarifications.
  You remind us in the beginning of your answer that you are acting in your personal capacity. So was I. I am not an activist of any cause nor try to defend a particular side and am not attempting an exercise in “mirror politics”. I am an academic, and in this sense I acknowledge that I am indeed remote from  certain realities in the field and in the political discourse. But this is my only fault. I would like to stress that I was not singling out Al Haq specifically. I can understand how you may have misperceived my harsh comments about the relation that HR activists have with the law and the possible blurred relationship between law and morals. But I was making these comments as an academic from a theory of law perspective, and despite the harsh rhetoric, I am making a real substantial point. I do not join the chorus of voices trying to label Al Haq as terrorist or slandering their leaders. That is not my fight. My comments were harsh but I really meant them to be taken in an academic context. Given the delicate political situation, I maybe should have made that point clearer.
         In line with that, I was not trying to “discredit” Al Haq with my comments on politics. Again, I was not singling them out and, despite “my style” (I really must do something about that…), I was making a real political theory point about the “depoliticisation” of Human Rights from a conceptual point of view, and not trying to say that Al Haq’s position was not to be considered. If not, I would definitely have phrased my post differently. I’m sorry I might have be misunderstood, and I know that the debate often falls in ad hominen slander, but please don’t attribute to me the thoughts of others and allow me the same intellectual courtesy as I did when I actually engaged into a legal debate about the actual content of the Policy Paper.
        Which brings me to my next point. Despite the harsh language, I find you a little disingenuine in saying that I don’t confront the legal dimensions in my post and don’t respond to the points raised “in a rigorous and intellectual fashion”. On the contrary, I think that my analysis of the ICC Statute is very rigorous. In fact, that you are calling for a “progressive” interpretation of the Statute actually shows that you agree that the “rigorous” approach does not allow for what you claim… I do believe that 12(3) by referring to a “State which is not a Party to the Statute” clearly implies, a contrario that the State could become a Party. Hence, I believe that in order from an entity to be able to make a declaration under 12(3), one can’t avoid an analysis of its Statehood under general international law. You are right, I don’t engage in that part of the discussion because I couldn’t deal with everything and this is a conclusion that I find more appealing from a legal point of view. However the Position Paper suggests that a different definition of State just for 12(3) is possible and I disagree with that. You cannot isolate an article from the rest of the treaty and before you propose a “novel” interpretation of a clause based on the supposed ambiguity of the article, you have to show efficiently that it is indeed a novel situation, which the language of the Article itself does not suggest.
        On the criteria proposed by the OTP, it’s not because they are proposed by the OTP that I should accept them at face value. The Prosecutor has shown time and again his sometimes inadequate grasp of the Statute. And more generally, as an academic I would be out of a job if I didn’t question what the institutions I observe do. I maintain that there is a confusion in the scope of Article 12(3). It is not concerned with the transfer of criminal jurisdiction, which comes later in the process when dealing with complementarity. It is an acceptance that the ICC can exercise its own jurisdiction, which is entirely different. This is why I am still waiting for a convincing justification of questions 2 and 3 from the OTP in deciding to accept the declaration of the PA. In relation to that, you might have found my comment that any State with criminal jurisdiction over Palestinians and Israelis could make a declaration under 12(3) under these criteria a little facetious, but there is a real point there which you have not answered. I know that is not what you were suggesting in your Policy Paper, but in theory, if those are really relevant criterion to establish the capacity to make a declaration under 12(3), then why shouldn’t they be able to? You might not have wanted to imply that, but anybody defending this position must seriously deal with the natural legal consequences of what they suggest. In this sense I don’t see how I could not “draw such a conclusion” from your reasoning.
        On the comparison with self-referrals and “situations”, you claim that it shows that “the ICC process has demonstrated a willingness and ability to progressively interpret and apply the Statute where it is just and valid to do so”. No, it doesn’t. There’s nothing progressive in applying the Statute as it stands, which is exactly what they did. The Statute doesn’t say that the actual State where the crimes had been committed couldn’t refer the case, so they allowed it. As for “situation”, the word was explicitly chosen to allow some geographical flexibility, as opposed to the word “State”, for example… Different words in the Statute for different purposes. I still don’t believe anything can be drawn from this analogy. And while we’re on the topic, the early case law of the Court actually shows on quite a few aspects that the judges are far more reticent in seeing loopholes everywhere, as the ad hoc judges were, and are much prone to applying the Statute as it stands. Except maybe on victim participation, but that can be explained by the drafter’s lack of foresight in a new area when they expected that a single article 68(3) would solve everything, but that’s a different issue.
         You are right about Israel trying to change the rules to fit their interests. And I will disapprove of that in the same way. As I said earlier, I’m not trying to defend anybody’s position and I’m sure nothing in my post suggests otherwise. But I don’t accept the tu quoque argument. It’s not because they do it, that you should do it too. In addition, it was totally irrelevant to raise the question in response to my post. You told me to deal with the substance, not the activists, and I perfectly accept your point. But you just proved that the two are sometimes hard to distinguish… I’m defending the law, and more importantly the respect for the legal process that the rules not be changed through making a moral argument (interests of justice, interests of peace, interests of victims). We all agree on the same fundamental human rights, and if they have to be protected, they don’t necessarily have to be present in all documents and not all treaties are aimed at the protection of each of them.
         On a conciliatory note, I think in fact that we don’t disagree on the finding that there is a problem here. The ICC Statute is a “traditional” treaty that doesn’t provide for situations such as the one we are faced with in the present case. What we disagree on is the methodology. I really do think, however frustrating it may be for both of us to see the inadequacies of international law, especially when it leads to such injustice, that it does not serve the long term legitimacy of international law (if one is attached to that) to try and “force” an legal interpretation on a text which does not contain it. As I said, there is a clear problem with the UN-system in the prevention and repression of international crimes, which relies too heavily on the Security Council, but that is not the ICC’s fault.
         On your final point, I actually think that the “power” given to the Security Council in the ICC Statute to refer cases is contrary to international law, because the Security Council draws its power from the UN Charter and no other treaty. In addition, by joining the UN, Soudan has actually consented to respecting Security Council resolutions. More generally, I agree that certain things need to change from a moral point of view, but we have to be very careful of the legal ramifications of what we suggest. If one argues that consent shouldn’t always be required, I think that we have to be specially aware of what criteria we propose for that. It can’t only be because we consider that the cause is right. If not, it can justify any interventionism based on each person’s concept of rights. But let’s keep this debate on universality Vs relativity of Human Rights for another time, shall we?

One response to “Guest Post: Deal with the substance, not the activists! A Response to ‘Of Legal Reasoning and Wishful Thinking: The ICC and Gaza’

  1. Pingback: Are all crimes committed in Palestine between 2002 and 2014 now beyond the reach of the ICC? Possibly. | Spreading the Jam

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