Jack Cunningham: Here’s what Canada should (and should not) do in shaping its Middle East policy

We rarely think of the Middle East as a peaceful part of the world, but the Hamas attacks on Israel on October 7, 2023, inaugurated a period of exceptional instability and volatility in the relations among Israel, its neighbours, and the Palestinians in the disputed territories. Like most other governments, that of Prime Minister Justin Trudeau has had to respond to an unanticipated and rapidly changing geopolitical landscape, but its efforts have been less than successful. Treating the war in Gaza primarily as a problem in Canadian domestic politics, Trudeau and his ministers have engaged in endless equivocations to please the differing factions in the Liberal Party and the Canadian public and have apparently satisfied no one.

But in recent weeks the government has engaged in a dramatic and unwise departure from past Canadian policy towards the Middle East, indicating a willingness to unilaterally recognize a Palestinian state without waiting for one to emerge from negotiations between Israel and the Palestinians. At the same time, events have shown the problematic nature of a longstanding Canadian commitment, Ottawa’s signature on the Rome Statute creating the International Criminal Court (ICC). The new departure in the former case, and adherence to established policy in the latter, are dangerously misguided and harmful to both prospects of a sustainable peace in the Middle East and the interests of Canada and its allies.

Why Canada should not recognize Palestinian statehood now

Since late October the House of Commons Standing Committee on Foreign Affairs and International Development has held hearings on the desired path to Canadian recognition of a Palestinian state. Professor Mark Kersten claimed recognition “might just jump-start a new, better and more promising solution to the conflict in the Middle East,” while former Ambassador to Israel Jon Allen testified that recognition “is about sending a message of hope and commitment to Palestinians.” In reality, unilateral recognition helps make the peaceful achievement of a Palestinian state more distant and continued conflict more likely.

In line with its policy of recognizing a Palestinian state following successful negotiations between Israel and the Palestinians, Canada voted against a 2012 United Nations General Assembly Resolution recognizing Palestinian statehood. But this May, Canada abstained on a similar resolution, indicating a shift to a policy of recognition “at the time most conducive to lasting peace, not necessarily as the last step.”

The relevant change since 2012, however, is that in 2023 Hamas provoked war with Israel and has weaponized the resulting casualties to increase international pressure on Israel to make concessions. And Palestinians have noticed. Even before the October 7 attacks, Palestinian support for a compromise peace with Israel was in sharp decline. Between October and December of 2023, support for Hamas tripled, with even many Palestinians who did not favour Hamas ideologically endorsing its actions on October 7, often disbelieving the accounts of its atrocities.

While the popularity of Hamas has risen, that of its political rival, Fatah, which heads the Palestinian Authority in the West Bank, has fallen, not least because its occasional gestures toward acceptance of Israel have discredited it as a collaborationist entity. When the Hamas chief and mastermind of October 7, Yahya Sinwar, was killed by Israeli forces, Fatah’s head, Mahmoud Abbas, was compelled by Hamas’ growing popularity to publicly praise Sinwar as a “great national leader” and call for unity among Palestinians.

As Professor Eugene Kontorovich told the standing committee, unilateral recognition serves only to confirm Hamas in its present course, convinced that “all of its goals, including the elimination of Israel, can be achieved through vicious attacks followed by the extensive and illegal use of its own people as human shields.”

Advocating unilateral recognition, Kersten told the committee that “recognition is not a reward.” As a point of international law, this is arguable, but the diplomatic gesture of recognition inevitably takes place within a political context and has political consequences. In this case the consequences would include Hamas’ ability to take credit for one more step towards international recognition of Palestine, so it would in fact be rewarded with a strengthened position in Gaza and the region as a whole.

We have a good idea of where this would lead because Mahmoud Abbas has told us. In 2011 he published an op-ed in The New York Times announcing he would seek a U.N. General Assembly vote on statehood later that year. If successful, this would enable a Palestinian state to “pursue claims against Israel at the United Nations, human rights bodies and the International Court of Justice…negotiating from the position of one United Nations member whose territory is militarily occupied by another.”

As the Washington Post’s Jackson Diehl noted, this came only weeks after Abbas had concluded a “Reconciliation Agreement” with Hamas and raised the prospect of Palestinian statehood preceding rather than following negotiations with Israel. Then would come unrelenting pressure on Israel for yet further concessions, under the threat of attack to which its capacity to respond would be more constrained than ever. This didn’t happen, in part because the 2012 resolution failed in the Security Council under the threat of a U.S. veto.

If anything, recognition of Palestine now is more dangerous than it would have been in 2012 given Hamas’ stronger position and the pressure on Israel it has already produced after October 7. Since Israel began its defensive war in Gaza, it has been lectured endlessly on the need for restraint and pressed to halt operations short of Hamas’ destruction as a military and political threat. But the legitimate interests of not only Israel and the Palestinians require a definitive Israeli victory. International pressure for Israeli restraint and concessions, intentionally or not, validates Hamas’ claim that its actions produce results.

Of the two major Palestinian factions, Hamas overtly and consistently seeks a Palestinian state that will replace Israel rather than coexist with it, while Fatah does so ambiguously and duplicitously. Palestinians who are supportive of statehood negotiated with Israel and with those two states peacefully coexisting are politically powerless and will remain so as long as violent rejectionism seems a plausible route to statehood. The hope of statehood through violence must first be quashed if the hope of statehood through peaceful negotiations is to gain sufficient influence among Palestinians that productive negotiations are possible.

The previous insistence that statehood follow successful bilateral negotiations reflects the reasonable requirement that the Palestinians, with their long history of rejectionism, satisfy Israel that a Palestinian state will not prove a mortal threat to the Jewish one. To abandon this insistence is to strengthen the hand of those most opposed to a peaceful resolution and thus to perpetuate rather than end the conflict and to ensure the continued suffering of both Israelis and Palestinians.

Moreover, a stronger Hamas is a threat to the interests of Canada and the West, since it operates as one of Iran’s proxies, and the containment and weakening of an aggressive Iran is the greatest geopolitical challenge in the region.

Why Canada should withdraw its support for the ICC

The folly of another Canadian policy, that of adherence to the ICC, became apparent on November 21, when the ICC’s pre-trial chamber issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant for war crimes. Canada was involved in the negotiation of the Rome Statute—which established the ICC—and was quick to accede to it when it entered into force in 2002, with the Canadian jurist Philippe Kirsch serving as the ICC’s first president. After the warrants were issued, Trudeau announced that Canada would “abide by all the regulations and rulings of the international courts. That’s who we are as Canadians,” while Israelis across the political spectrum denounced the warrants. Yet most commentators have missed the extent to which this decision is not only objectionable itself but reflects fundamental flaws in the ICC that justify Canadian withdrawal.

Most debate has addressed the facts of the case, and there is ample evidence to believe that, rather than committing war crimes, Israel has gone to remarkable lengths to minimize civilian casualties in Gaza and Lebanon. Equally problematic, however, is the ICC’s legal reasoning. Among the ICC’s charges is that Israel has obstructed the flow of humanitarian aid into Gaza. Aside from the fact that considerable aid is still delivered, the relevant law cited, the Fourth Geneva Convention, explicitly permits the denial of humanitarian aid in wartime where it will prove ineffective, is likely to be diverted, or provides military or economic advantage to one’s enemy—conditions that clearly exist in Gaza.

Beyond this case, the legal weaknesses of the ICC extend to its inception. Building upon the ad hoc tribunals established to try war crimes and crimes against humanity in Rwanda and the former Yugoslavia, the UN developed a permanent tribunal between 1996 and 1998. During the negotiation of the Rome Statute, the Arab bloc successfully lobbied for a provision targeting Israel. While established definitions of “population transfer” as a war crime had covered forcible deportation and replacement of a local population, the Rome Statute adopted a more expansive definition covering population transfer “directly or indirectly, by the occupying power.” This turned Israeli settlements in the West Bank and Gaza from political facts to be dealt with in negotiations between Israel and the Palestinians into war crimes.

As a result, Israel, which had initially voted against the Rome Statute but was briefly a signatory in 2002 as the treaty came into force, informed the UN it would not become a state party. Traditionally, states that are not signatories to a treaty and their nationals do not fall under its jurisdiction. The Rome Statute, in a striking departure, claimed universal jurisdiction for the ICC, though cases against non-signatories could be initiated only upon direction from the UN Security Council.

The judges of the ICC, however, devised a crafty dodge. The ICC also claims jurisdiction over crimes by a non-signatory on the territory of a signatory. In 2012, the UN General Assembly declared Palestine a “non-member observer state” and in 2014 it was accepted as a signatory to the Rome Statute, despite not being recognized by the UN as a true state (this required Security Council approval).

Moreover, alleged crimes committed in Gaza and the West Bank would traditionally not fall under the ICC’s jurisdiction, because they are not within the defined borders of an established state but are disputed territories, their ultimate status to be negotiated between Israel and the Palestinians. But in 2021, the ICC’s Pre-Trial Chamber found by majority vote that Palestine’s status as a state party was valid “regardless of its status under general international law.” Alleged crimes in the West Bank and Gaza fell within the ICC’s jurisdiction, and the Oslo Accords, which provided for negotiation of their status, were simply “not pertinent.”

That such jurisprudence, which could charitably be called “creative,” would be devised was inevitable given the nature of the ICC, which is quite unlike other courts. Its officials are elected by the Assembly of States Parties, consisting of all signatories, including those with complaints against potential defendants and therefore a conflict of interest. The result is to make a mockery of judicial impartiality. The Rome Statute itself and the ICC’s rules of evidence and procedure can be amended by a two-thirds majority of the assembly. Previous amendments have modified the definition of aggression as a crime and allowed states to claim immunity for war crimes up to seven years after accession.

Decisions are by majority vote, by panels as small as three, and, as a study by the Library of Parliament noted, show striking inconsistency on questions of both law and procedure. The ICC generates an exceptional number of dissenting and concurring opinions, with judges often justifying their findings with reference to their respective and different national bodies of jurisprudence, which do not necessarily command wider acceptance. Due process is undermined by the admission of hearsay testimony and reliance on anonymous witnesses.

In addition, prosecutions can not only be requested by the UN Security Council or a signatory state but can be initiated by the prosecutor on his or her own authority, subject only to pro forma approval by the pre-trial chamber. In theory, this unusual prosecutorial authority is limited by the principle of “complementarity,” where the ICC steps in as a court of last resort if national justice systems have proven unable or unwilling to act. But in practice, the prosecutor can act where a state declines to initiate prosecution, even where it is with good reason.

That the ICC has shown a particular animus against Israel is unsurprising, since the signatories include the Arab bloc and its sympathizers, who view Israel through the lens of “settler colonialism” and dispute its legitimacy, as well as those who are prepared to appease them. But others have reason to fear too. The United States has never ratified the Rome Statute, though there was limited cooperation with the ICC under the Obama and Biden administrations, because of fear that U.S. military personnel involved in foreign wars would be subject to politically motivated prosecutions.

Yet in 2020, the ICC Appeals Chamber approved an investigation of detainee abuse in Afghanistan with the potential to implicate U.S. personnel. This elicited a somewhat excessive response from the Trump administration in an executive order mandating sweeping sanctions against anyone who might aid the effort. But that overreaction should not obscure the fact that In a period of renewed great power conflict and military aggression, the ICC will be weaponized when convenient. It is perfectly conceivable that Canada and its fellow democracies would face similar challenges should Rome Statute signatories hostile to Western military actions successfully devise them.

In the absence of a universal sovereign authority operating through a universally accepted body of law, a tribunal such as the ICC inevitably reflects the wishes of the states that adhere to it, political actors with divergent interests, ideologies, and philosophies of law. Under the Rome Statute, the ICC can invent international law on the fly and signatories can vote to change what constitutes a crime and how it may be tried, while rogue prosecutors have a free hand.

In such circumstances, prosecutions cannot be other than politically motivated. Sometimes the results may be welcome, as in the ICC’s recent arrest warrant against Vladimir Putin. Sometimes they will be reprehensible, as in the warrants against Netanyahu and Gallant. But to accept the findings of the ICC as law is to legitimize the actions of what is inescapably an unaccountable kangaroo court, which is why Canada should not only denounce the latest arrest warrants but withdraw its ratification of the Rome Statute.

To be sure, Canada is an actor of limited significance in the Middle East. But within the scope it does have for action, it should avoid rewarding terrorism and legitimizing pseudo-legal processes inimical to its own interests and those of its friends.