Kennan’s Warning on Ukraine
Ambition, Insecurity, and the Perils of Independence
Today, Palestine accepts the jurisdiction of the International Criminal Court—or, put another way, the ICC accepts that Palestine accepts its jurisdiction. This more awkward formulation is more accurate, since what matters is not Palestine’s quixotic quest to join The Hague Court, but the ICC’s acknowledgement that it can.
Palestinian claims to statehood are nothing new. What has changed is that Palestine is now seeking (and getting) membership in international organizations. But because Palestine still has so few qualities of a real state, this trend promises plenty of turmoil and trouble—for the ICC, for Israel, and for Palestine itself. And it is a reminder that in a world of states, statehood matters. For Palestinians, statehood is a delusion worth having and trouble worth making.
STATE OF PLAY
Palestine has acceded to the Rome Statute, the ICC’s founding charter, and issued a declaration accepting the court’s jurisdiction, something only a state can do. Palestine first tried to join the ICC in 2009; it was rebuffed after a three-year delay, with the court noting that “competent organs” at the United Nations had not recognized a Palestinian state. That decision was illogical, even cowardly: nothing required the ICC to defer to UN standards, which are not synonymous with statehood. A young court, not wanting to wade into one of the world’s oldest conflicts, punted to the UN.
For a time, The Hague’s dodge kept the wolf from the docket. But a few months later, in November 2012, the UN General Assembly admitted Palestine as a non-member observer state. By The Hague’s own UN-centric logic, Palestine could now join the ICC. When Palestine applied again this January, it was quickly accepted.
Palestine hopes that the court will prosecute Israeli forces operating in the West Bank and in Gaza. Whatever its merits, a case could cause real trouble for the ICC. Israel’s chief ally, the United States, has already filed a protest, arguing that Palestine is not a state. The United States is not a party to the court—having signed but never ratified the Rome Statute—but could do much to undermine it, including by supporting disaffected African states that have threatened to abandon the court altogether. The ICC is a weak institution; prosecuting Israel could prove fatal.
There are plenty of complications that could give the court an exit. The Oslo II Accords, signed in 1995, confirmed Israel’s “sole criminal jurisdiction” over Israelis in Palestinian territory, so Palestine may in fact have no jurisdiction to grant. There are also questions about what constitutes Palestinian territory, and defining Palestine’s borders would mean defining Israel’s. Since Israel is not a party to the ICC, the court’s prosecutor might decide that a case based only on Palestinian jurisdiction would risk interpretive overreach. Finally, there are the merits of the case themselves: the ICC’s prosecutor could conclude that the evidence simply isn’t strong enough to pursue.
But not pursuing a case could also imperil the court. The Hague is already under intense criticism for exclusively prosecuting African cases, which is why many of those states are considering withdrawing. Much of the world considers Israel’s actions in the 2014 war in Gaza and its occupation of the West Bank as a gross violation of international law. If the court were seen to be avoiding a legitimate case against Israel, this limping institution could become irrelevant.
Whatever the danger to the ICC, the possible trouble for Israel—the prosecution of its forces in Palestine—is even more obvious. The ICC could reason that Palestine never had the power to bargain away its obligation to prosecute international crimes during the Oslo negotiations. And the court could assert that its jurisdiction reaches deep into the Israeli state: Israel considers Jerusalem sovereign territory, but many countries consider it occupied. And if the ICC brought charges against an Israeli soldier or politician, he would have to plan his vacations carefully: 122 other countries, including most of Europe, are parties to the Rome Statute, obligating them to hand over anyone the court indicts.
There are plausible objections to these scenarios, but now that it has jurisdiction in Palestine, the ICC has the ability to decide for itself if an investigation is warranted. Its self-image as a professional court, or its need to prove its relevance, might compel the court to take a complaint against Israel seriously. Either way, the decision is not Israel’s. And that, after all, was the point.
Joining the court is part of a larger Palestinian strategy to internationalize its dispute with Israel. Palestine has recently joined a host of multilateral treaties, including the Genocide and Geneva Conventions, the International Covenant on Civil and Political Rights, and the Vienna Conventions—all part of an effort that one senior official in the Palestinian Liberation Organization has called a “diplomatic intifada.”
The point of this strategy is to escape the trap of negotiating only with Israel. Israel’s leaders formally back a two-state solution, but that position has always been more rhetorical than real. (In the country’s recent election, Prime Minister Benjamin Netanyahu opposed a Palestinian state, only to backtrack days later.) Israel benefits tremendously from its asymmetrical relationship with the Palestinians, insisting they acknowledge Israel’s right to exist—and its Jewish character—as a prerequisite for talks, while treating Palestinian statehood as something to be bargained for.
The strategy also means bypassing the United States: For all the alienation between U.S. President Barack Obama and Netanyahu, U.S. policy remains reflexively on Israel’s side. Although long supporting a two-state solution, administrations of both parties have been uninterested in actually letting Palestinians achieve statehood. Speaking before Congress last year, U.S. Ambassador to the United Nations Samantha Power said Washington remained “absolutely adamant” that Palestine should not join the ICC, because it would be “devastating to the peace process.”
Notionally, such resistance stems from a belief that there is no unilateral shortcut to a negotiated settlement. But this is sophistry and self-dealing: All statehood does is make Israel’s preferred deal more difficult. Conditioning statehood has made the likely terms of any deal more favorable to Israel—including no deal, which may be Netanyahu’s real preference. That is the asymmetry Israel and its chief ally wish to preserve, which Palestine’s new strategy threatens to overturn.
So it’s no surprise that trouble has already started for the Palestinians. Israel is withholding $120 million in monthly tax receipts it collects on the behalf of the Palestinian Authority. Washington, meanwhile, is cutting funding to organizations that allow Palestine to join their ranks.
Self-servingly punitive as it may be, this pushback makes sense: Palestine’s bare claim doesn’t make it a state where the conditions for statehood don’t exist.
There are two approaches to statehood in international law. The dominant view, enshrined in the 1933 Montevideo Convention, is the so-called declarative theory of statehood: An entity with a territory, population, government, and capacity for relations is a state, whether or not others recognize it. The minority view is called the constitutive theory: recognition makes a state. The more it receives, the more state-like it becomes.
The trouble with Palestine is that it’s not much of a state either way. Palestine cannot be a state in declarative terms, since it has never controlled its own finances, borders, seas, or airspace. But it is equally unsatisfying to suppose Palestine’s 135 bilateral recognitions make it a state. There’s a reason the constitutive model is the minority view: Recognitions can be aspirational, reflecting the desire to see a state that isn’t actually there. After all, only one recognition really matters, and Israel’s prime minister just made it clear that’s not happening.
Hence the new, slightly desperate Palestinian strategy: as Israeli leaders hold their line, take to the international community, where those 135 recognitions can translate into membership in multilateral organizations. Membership gives Palestine some of the powers a state normally exercises, without having to wait for a recalcitrant Israel to grant them.
But membership won’t make life better for average Palestinians; ratifying the International Covenant on Civil and Political Rights, for example, won’t end the occupation. It could even make things worse: The ICC may never actually put Israelis in legal jeopardy, but it can try Palestine’s citizens for their own violations. Standing trial for war crimes is a funny way to prove you’re a state, but if Hamas keeps firing rockets at Israel, Palestinians may get their day in court.
The larger question is whether statehood really matters at all. Chasing sovereignty doesn’t make Palestinians masters of their own destiny any more than they very much aren’t now. Perhaps statehood is just a bundle of functions. Palestine already takes part in the Olympics, the Red Cross; its recent push simply adds other capacities. And some functions are homegrown: Palestinian leaders have been pushing to build domestic institutions to make Palestine a more competent actor—what an earlier generation of Israelis called creating “facts on the ground.” Statehood may add up to nothing more than adding up those facts.
The problem is that the actors objecting most vociferously to Palestine’s nonsensical push for recognition of statehood it doesn’t possess are the same ones actively standing in the way of Palestinians’ creating the facts that would make statehood possible. This is why, for all the trouble it will cause, Palestine’s push is right, and the United States is wrong to oppose it. Palestine’s statehood would either change the balance of forces, or show it hasn’t changed. Either way, it matters in the way tilting pointlessly at giant windmills matters. Statehood is either a bundle of practical powers, or a fantasy people genuinely believe in. Or both. Either way, to be a state—to be recognized as a state, in a way that means something—you have to pretend you are one. Even if, like Palestine, you aren’t.