Israel cannot escape all of international law all of the time

Noha Aboueldahab

a fellow at the Brookings Doha Centre
February 17, 2020

US President Donald Trump's plan to resolve the Israeli-Palestinian conflict flagrantly violates international law. But it also confirms Israel's recognition that it cannot escape all of international law all of the time.

In particular, it demonstrates that the potential reach of the International Criminal Court (ICC) represents a threat to Israel in a way that unenforced UN resolutions do not.

A history of international law violations

Since the creation of the Israeli state in 1948, UN resolutions critical of Israel have made numerous calls ranging from the right of Palestinian refugees to return to their homes to condemning Israeli attacks on Palestinian civilians.

Trump's so-called "deal of the century" attempts to reverse such resolutions by legitimising a number of illegal acts, including Israeli annexation of illegally occupied Palestinian land and the continued establishment of Jewish settlements on Palestinian territory.

It stipulates that Jerusalem is the "undivided" capital of Israel, while Palestine would have limited control over scattered neighbourhoods in East Jerusalem. These neighbourhoods are east and north of the "security barrier", otherwise known as the Israeli-built "separation wall" that the International Court of Justice (ICJ) deemed illegal over 15 years ago. 

There are dozens of UN resolutions that reprimand Israel and demand that it reverse its violations against Palestinians. Yet Israel continues to flagrantly violate them and other international legal decisions without any sanction.

What, then, is the use of international law when it continues to fail Palestinians?

International law as resistance

The absence of any real consequence for Israel's unlawful actions is not limitless. Abhorrent as it is, Trump's plan makes it tacitly clear that Israel recognises the power of international law, especially when used as a tool of resistance.

The deal calls on Palestine to drop any and all international criminal cases not only against Israelis, but against Americans as well. 

The fear of the plan's American and Israeli drafters stems in part from what Palestine has managed to achieve with the help of international law, despite its continued subjugation and oppression by the Israeli state, supported by the US. 

More than 130 states recognised Palestine as a non-member observer state at the United Nations in November 2012. Palestine acceded to the Rome Statute of the ICC, after which it requested that the Court investigate crimes committed on its territory. 

In December 2019, after lengthy deliberations regarding the ICC's jurisdiction over the Palestine situation (some of which are ongoing), the ICC prosecutor ultimately decided that there are reasonable grounds to investigate crimes committed on Palestinian territory. 

Should the current case before the ICC reach a stage where Israeli officials are indicted and arrest warrants issued against them, this would restrict the mobility of those officials as they try to avoid countries where they may be arrested and transferred to The Hague for trial. They would also be named and shamed.

Of course, the chances of that happening are slim. The ICC does not have its own police force to arrest individuals, and instead relies on state cooperation to do so.

International law cannot and does not operate in a vacuum - political will and political mobilisation are at once key drivers of and key obstacles to the "promise" of international law: justice.

Even if no Israeli official is indicted or arrested, an important lesson can be drawn from the ICC case. An international legal process is underway and, while it may not lead to any conclusive outcome, Trump's deal signals that powerful governments - namely the US and Israel - view international criminal law with fear, despite their attempts to dismiss it.

The double-edged sword of international law

It fails to enforce UN resolutions, particularly in the Israeli-Palestinian conflict.

As a result, it fails Palestinian victims as it cannot provide protection, nor can it guarantee justice, for them. This repeated failure of enforcement undermines the essence of the UN Charter. 

But international law is also emancipatory. It played an important role in decolonisation following the national liberation movements of the 1950s and 1960s. It, along with state practice, led to Palestine’s recognition as a de facto state by most of the world on that historical November day in 2012.

In the face of powerful actors that blatantly violate international law and attempt to establish a new reality on the ground through the establishment of illegal Jewish settlements on stolen land, international law still constitutes an important platform for Palestinian resistance.

Evidence of this can be found in Trump's plan as it exposes the long-standing Israeli and American paranoia that institutions such as the ICC will bring them closer to accountability for their repeated flouting of international law.

The views expressed in this article are the author's own and do not necessarily reflect the Website editorial stance.

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