The images of tens of thousands of Palestinians fleeing their homes in Gaza in synchronised columns are frighteningly similar to the photographs of Palestinians escaping ethnic cleansing and occupation in 1948 and 1967 respectively. Only the tint, backdrop of modern society and current-day dress featured in recent media circulations remind us that we are witnessing the “crisis of humanity” unfold in 2023. Today, most of the Palestinians seeking safety in the most unsafe of places are direct descendants of Palestinian refugees of the Nakba (‘catastrophe’) in 1948. They are trapped in Gaza until their right to return home is realised and the deep injustice in the form of apartheid and denial of self-determination is justly resolved.
I recently wrote in the book Prolonged Occupation and International Law that the International Criminal Court’s (ICC’s) investigation on Palestine “tests the international community’s commitment to the universality of rights and norms”. The international community is not only failing that test, but also breaching the promise of a post-World War global, humane, and norms-based order grounded in the United Nations Charter. The cost of this collapse is no longer unimaginable: around 15,000 Palestinians have lost their lives, hundreds of thousands have been displaced, and massive residential areas have been turned into wasteland.
The propagated international rules-based order was never immune from criticism. Concerns about ‘victor’s justice’—the selective approach to, and instrumentalisation of, international law by powerful states against the defeated and marginalised—have grown louder. The ICC has been perceived to focus on African states or politically uncontroversial situations, while the UN Security Council has failed to respond to conflicts in an equal and principled manner.
The stark contrast between Western states’ swift response against Russia’s invasion and occupation of Ukraine and their lackluster reactions to Israel’s bombing, starvation, and mass-incarceration of Palestinians have sharpened that criticism. Notably, states and lawyers drew on the entire arsenal of international law and mechanisms to address the violence unleashed on the Ukrainian people, including sanctions. Following global calls, the European Union established an international centre for the investigation of the Russian crime of aggression. There was also an outpouring of support to the ICC Prosecutor following his rapid statements on Ukraine and calls for support to expedite the investigative process. Forty-three States, most of them European, asked the Prosecutor to exercise jurisdiction. Even the United States, which has been notoriously hostile towards the Court, offered support.
The impressive political response on Ukraine was nowhere to be seen on Palestine. Calls for, or commitment by States to provide additional resources to the ICC to investigate alleged crimes in Palestine are rare and an afterthought. There have been no serious initiatives around new courts and no sanctions. Only a handful of states, none of them European, have referred the situation of Palestine to the ICC–which has an ongoing mandate to investigate crimes committed in Palestine, including Gaza. Worse, the UN Security Council has not been able to agree to a ceasefire, rather than a humanitarian pause. The latter would send a strong message to Israel that no state may indiscriminately and disproportionately harm civilians, and could also save countless lives. Instead, as recalled by the UN Special Rapporteur on the occupation of Palestine, many states have opted for “ethical relativism [..] selective outrage or worse, calls for violence”.
I have proudly worked together with brave victims and affected communities in the Middle East and North Africa region for over 15 years as they demanded that perpetrators be held to account and challenged structures of power for the sake of human rights-based governance. It is the selectiveness that haunts many of the human rights defenders and victims, from Palestine, Jordan, Tunisia, Syria, Lebanon to Iraq. In reaction to world leaders’ apathy, they are calling out international law for being a tool of imperialism. Others are turning their back on the field, and even pronouncing peaceful and norms-driven multilateralism dead.
Victims of grave violations in occupied Palestine have long called for justice to be realised, recognising it as an essential condition for sustainable peace. This may have appeared a naïve request considering the complex geopolitical context of Israel’s occupation, but it was a right-based, principled, and peaceful demand drawn from the international community’s common vision of justice and humanity. The mounting viewpoint that international justice is a farce ought to concern anyone that is invested in it, and we must encourage states to apply it fairly. This requires condemning all violations of international law regardless of the nationality, religion, or ethnicity of perpetrators and victims, demanding a full cessation of hostilities, and centering political and humanitarian responses around international law.
Furthermore, states should encourage the ICC Prosecutor to carry out its mandate and investigate credible allegations of genocide, war crimes, and crimes against humanity. These are levied by independent and legitimate sources, such as the UN Secretary-General and UN experts. Eight UN experts stated in early November that they are “convinced that the Palestinian people are at grave risk of genocide” and warned that “[t]he time for action is now”. Since then, the situation in the Gaza Strip has only worsened. Thousands more children have been killed or orphaned.
Individuals can also make a difference, on their own and collectively. In the midst of the deafening political silence, we have seen inspiring acts of global solidarity—from Jewish groups marching for Palestinian rights, Ukrainian activists calling out the Israeli occupation, and victims around the world highlighting the double standards in the international response.
On the International Day of Solidarity with the Palestinian People on 29 November, let us continue to display solidarity with victims, recognise ongoing and historic wrong-doing, assert the inherent dignity of every human being and hold our political leaders to account. Whether on Ukraine, Palestine or Darfur—speak up and act when it matters.
Nada Kiswanson is a Programme Manager MENA at Impunity Watch.
(c) 2023 Impunity Watch