Palestine, Israel and the International Criminal Court

An alternate version of this posting can be found here.

On 1 April 2015 the Palestinian Authority will join the International Criminal Court. This could have significant repercussions for the efforts by the Palestinians to gain their own state and on the moribund Israeli-Palestinian peace process. This article will look at how we have gotten here and the possible implications for peace in the Middle East.

Palestinian accession to the Rome Statute of the International Criminal Court has been a long time coming. In 2009, the Palestinian Authority requested that the ICC investigate Israel for its actions during Israel’s Operation Cast Lead in Gaza in late 2008 and early 2009. This request was rejected because Palestine was not deemed to be a state and thus ineligible to join or otherwise accept the jurisdiction of the ICC. This situation changed in 2012 when the UN General Assembly accorded Palestine the status of non-member observer state (after a failed application for full membership in 2011). After 2012, the Palestinians joined a number of international organisations, such as UNESCO, and periodically indicated that they would join the ICC and refer Israel to the ICC. It failed to do so for two years, partly because of pressure from the US, the UK and France, and partly because using the threat suited Palestinian political interests. While the question of Palestinian statehood is still controversial, it status has been accepted such that it has been able to join the ICC.

Since the ICC can only investigate potential war crimes, crimes against humanity and genocide committed on the territory of a state party, or if the UN Security Council refers a case to the ICC, Israel’s occupation of the West Bank and Gaza, and other military activities against Palestine have been beyond the Court’s reach, as have the actions of Palestinian groups, in particular Hamas. Israel, like the US, is a signatory to, but has not ratified, the Rome Statute. Palestinian accession to the Rome Statute changes this dynamic, as does Palestine’s acceptance of ICC jurisdiction since 13 June 2014. On 16 January, the ICC Prosecutor, Fatou Bensouda, opened a preliminary investigation on the situation in Palestine.

What exactly could the Prosecutor investigate? For states acceding to the Rome Statute now, ICC jurisdiction only begins when it enters into force for a particular country, unless it makes a declaration that it accepts earlier jurisdiction. Thus, in the case of Palestine, ICC jurisdiction begins on 13 June 2014. This would preclude invetsigation into actions taken by Israel during Operation Cast Lead. However, this is the day that Palestine alleges Israel broke a cease-fire with Hamas that had been in place since 2012. ICC jurisdiction would thus cover all subsequent actions by Israel the West Bank and Gaza, including its Operation Protective Edge, which resulted in the deaths of at least 1,473 civilians. The Prosecutor could investigate whether the civilian casualties were disproportionate to the military goals, whether civilians were targetted, and whether Israel took all necessary care to avoid civilian casualties. She could also investigate whether the Israelis carried out collective punishment, as has been apparent on many occasions in the past. This has included the demolition of buildings where suspected Hamas militants have lived, thus rendering their families and other homeless, or killing civilians in the house. During the conflict, ‘more than 18,000 homes were destroyed or damaged beyond repair,’ according to Amnesty International. The Prosecutor could also investigate Palestinians for crimes they may have committed in the course of the conflict, including for the many hundreds of rockets Hamas fired indiscriminately into Israel from Gaza, which resulted in the deaths of at least four civilians, thus violating the principle of discrimination. Most substantially, however, the Prosecutor could investigate the continued occupation of Palestinian territory. This could include not only the West Bank, but also Gaza, since, even though Israel has formally withdrawn from Gaza, it still has effective control over most of its borders, including its border on the Mediterranean Sea. Although the occupation of Palestine began decades ago, it is ongoing and thus would be fair game for investigation. It could look, specifically, at the settlement policy. Indeed, the Rome Statute specifically identifies as a war crime:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory

This has clearly occurred. Indeed, an independent fact-finding mission appointed by the UN Human Rights Council, found in 2013 that

The transfer of Israeli citizens into the Occupied Palestinian Territory, prohibited under international humanitarian law and international criminal law, is a central feature of the practices and policies of Israel.

The bigger issue would be identifying those most responsible for this policy (and other actions taken against Palestinians). This could very well be include Prime Minister Netanyahu and his predecessors, as well as other senior government officials and military commanders. The ICC operates on the principle of complementarity, so it would have to be satisfied that potential crimes have not been investigated by a competent authority. The Palestinian Authority cannot investigate and try Israelis, and Israel has obviously not investigated its own citizens for the settlement policy, since it is governmemt policy, and it has undertaken few investigations of its own soldiers for crimes committed in Gaza or the West Bank, so this criteria would most likely be fulfilled.

One question would be whether the Prosecutor decided to prosecute members of Hamas for its indiscriminate rocket attacks and other actions. She might, or she might also decided that on the basis of gravity, the actions by Israel were much more serious and extensive, with much wider effect, and thus decide not to prosecute Palestinians. There is precedent for this. In both the Democratic Republic of the Congo and Uganda, Bensouda’s predecessor, Luis Moreno Ocampo, decided not to investigate actions of government soldiers, deeming them not of sufficient gravity. This failure to prosecute government soldiers was an attempt to gain the cooperation of the governments involved, and has been roundly criticised. It would seem unlikely that in this case the Prosecutor would choose not to investigate and prosecute Hamas soldiers. The relationship between Hamas and the Palestinian Authority is different than that between a national military and the government, although it could be argued that the Palestinian Authority still has responsibility for the actions of Hamas. Further, given the intense international scrutiny and political pressure that the Prosecutor will be under from many actors, she will have to be seen as being completely evenhanded. Not prosecuting Palestinians would seriously damage the credibility of the investigation in the eyes of many who would otherwise support the ICC.

So, what are the implications of the investigation? They are complex, multi-faceted, and extremly unpredictable. This is particularly the case given the recent Israeli election, during which Prime Minister Netanyahu, who will retain his position, stated that there would be no Palestinian state while he was in power (he has since repudiated this stance, but few believe him).

Sanctions against the Palestinians: Israel has already retaliated by refusing to transfer to the Palestinians more than $100 million per month it collects in taxes (it has partially backpedaled on this, but has not necessarily removed the threat of further sanctions). Further, the US Congress has passed a law mandating that all economic assistance to the Palestinian Authority be cut off if it joins the ICC. These two actions could have effect of severely underming the Palestinian Authority’s ability to operate, potentially causing it to collapse. This would severely damage the peace process, but given that the peace process has effectively collapsed anyway, this would just further accelerate future actions. This might mean further radicalisation among Palestinians, further destabilising an unstable situation. And it could entail greater sympathy and support for the Palestinians. Driving the final nails into the coffin of the peace process would either mean continued occupation and war with the Palestinians ad infinitum, or the recognition of a single state encompassing the territories of Israel and Palestine. The latter would mean either a non-democratic Jewish state which institutionalised an apartheid-like system, or a democratic non-Jewish state, where all Palestinians received full citizenship privileges. Neither option is enticing for most Israelis – or, indeed, most Palestinians.

Deterrence against both Israel and Palestine: Could Palestinian accession to the Rome Statute and the subsequent investigation serve to deter Israelis or Palestinians? It is unclear. Israel is already on the hook for its actions during Protective Edge and its continuing occupation and settlement policy. It reserves the right to take further military action to protect its security, and it perceives the occupation and settlements as key to its continued existence. Given that these are existential questions for Israel, legal challenges from a weak and ineffective court are not going to get it to change its policies overnight. It may think it can depend upon continued protection from the US, although given the breakdown of that relationship recently, it is unclear the extent to which the US will protect it. The US could attempt to get a resolution through the UN Security Council which suspended the investigation, but that would be open to veto by one of the other permanent members, and there is no guarantee that it would attract the necessary nine votes to pass. Hamas, in particular, is likely not going to be deterred by the threat of the ICC, given, again, the existential nature of the conflict and its demonstrated willingness to endure much more severe punishment (or force Gazans to endure such punishment) from Israel in pursuit of it goals.

Revive the peace process: Many, including the US, will not see it as in their interest for the peace process to collapse, so there may be attempts to use this development as leverage to revive the peace process. The Palestinians have previously attempted to get a Security Council resolution calling for an end to the occupation and the creation of a Palestinian state. The US has blocked this. However, it might now decide to support such a resolution in conjunction with a suspension of ICC proceedings, using both a stick and a carrot to pressure Israel to revive the peace process and make concrete progress toward a Palestinian state, support for which the Obama Administration has recently reiterated. It is by no means clear that this would succeed, and would likely engender resistance from both hard-line Israeli politicians as well as many members of Congress. Further, given that a Security Council deferral of ICC proceedings under Article 16 of the Rome Statute would need to be renewed every year, it is possible that Russia, in particular, might decide to invoke a veto at some point. The Israelis could never be entirely sure that even if they did come to a final peace agreement they would not face prosecution in The Hague at some point.

Palestinian accession to the Rome Statute has made an extremely complex situation even more complex. It could make the situation even more volatile and unpredictable, or it could bring key parties back to the negotiating table and revive what has long been a moribund and unproductive peace process. For the latter to happen, the Israelis would need to come to a rather fundamental re-evaluation of their interests, which seems unlikely given the recent election. Prime Minsiter Netanyahu and others would also need to think that the ICC posed a real threat to them, which, again, is open to serious question. Israeli leaders have already been able to avoid prosecution under the principle of universal jurisdiction, so may think that the ICC poses little new risk.

But even if such calculations were accepted, and ICC prosecution was avoided in the pursuit of a permanent peace settlement, this could have three negative consequences. First, it would undermine the ICC as an institution. If the ICC is perceived as nothing more than a tool to make warring parties come to a peace agreement, it will swiftly lose any legitimacy as an impartial judicial body which help to deliver justice to victims of atrocities around the world, however imperfect that justice may be. Second, those who committed atrocities in Palestine and Israel would stay in power, thus raising the possibility that they could be spoilers as the peace is implemented. Third, those most affected by the conflict would likely be left feeling that they had received no justice. For some Palestinians, finally having their own state might feel like justice, but for others, both Palestinian and Israeli, a lack of retributive justice would inhibit true reconcilliation. One might ask whether this is the best decades of development of human rights norms and mechanisms can deliver.

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