Seeking Justice Over Peace: What Palestine’s Membership in the ICC Really Means for Israel and the United States
The most recent skirmish in the decades-long Arab-Israeli conflict may be transpiring in the legal arena rather than on the battlefield, but it is no less vicious in nature. The latest clash stems from Palestine’s recent string of legal and political moves, through which it hopes to bolster its chances of becoming an internationally-recognized state and of holding Israel accountable for alleged crimes against the Palestinian people.
On April 1, 2015, the Rome Statute entered into force for Palestine, officially marking its status as the 123rd member of the International Criminal Court (ICC). The ICC’s acceptance of Palestine as a state eligible for membership is controversial, as the status of Palestine as a sovereign state is widely contested. Indeed, Palestine has not even been granted full membership in the United Nations, instead carrying the status of a non-member observer state. Moreover, this acceptance deviates from the ICC’s own former stance towards Palestinian sovereignty and potential membership. As recently as 2012, the ICC declined the Palestinian Authority’s request to investigate crimes allegedly committed by Israel in connection with Operation Cast Lead on the grounds that the ICC did not have “the authority to declare Palestine a state for the purposes of the Rome Statute.” Politically, Palestinian membership in the ICC is troublesome to its opponents, namely Israel and the United States, not only because it implicitly confers state status upon the Palestinian Authority, but also because Palestinian leaders have made it clear that their goal in joining is to renew their pursuit of prosecuting Israel for alleged war crimes —this time for acts committed in the course of the Israel-Gaza conflict known as Operation Protective Edge.
Israel and the United States, neither of which are State Parties to the Rome Statute have decried the ICC’s decision as illegal since they believe that a) Palestine is not a state and thus was not eligible for membership in the first place, and b) the ICC should not have jurisdiction over nationals of non-member states. Now that Palestine is an official State Party to the Rome Statute, however, the ICC is legally justified through the text of the Rome Statute in exercising jurisdiction over Israeli nationals that may have committed crimes upon Palestinian soil, regardless of the fact that Israel is not a member of the ICC.
Furthermore, while Palestine did not gain official membership in the ICC until April 2015, the Rome Statute stipulates that ICC investigations can cover events from the date a state issues a declaration accepting ICC jurisdiction. The government of Palestine accepted jurisdiction over any crimes discovered in the occupied Palestinian territory, including East Jerusalem, on June 13, 2014, the date Israel and Hamas renewed hostilities in Gaza. Therefore, if the ICC decides to open an investigation into the situation, the scope would include any crimes committed by Israelis on Palestinian soil from June 13, 2014 onwards.
The only legal scenario in which the ICC could rule these war crimes inadmissible for investigation and potential prosecution would be if, in accordance with the concept of complementarity, Israel was already investigating or prosecuting the case, or had completed these proceedings. The catch is that the ICC would have to deem Israel able and willing to impartially conduct these proceedings in good faith. Given the current political climate, it is unlikely that the ICC would judge Israel capable of carrying out the investigation into its own actions.
From March 20th to March 22nd 2016, delegates from the Palestinian Authority met with representatives of the ICC in Amman to discuss the cases Palestine has filed against Israel. The Palestinian claims mainly concern abusive Israeli actions in the settlements, and include such transgressions as seizing of land and water resources, causing environmental damage, and committing acts of violence against the inhabitants of the occupied territories—including the notorious cases of Mohammed Abu Khdeir’s murder and the burning down of the Dawabsha family home. The Palestinian Authority has also expressed its desire that the actions of Israeli Prime Minister Benjamin Netanyahu be included in any future investigation.
It falls to the current ICC Chief Prosecutor, Fatou Bensouda, to determine whether there is enough evidence to open an official investigation into the alleged Israeli war crimes or abuses. The process of seeking justice through the ICC, however, is long and laborious. Despite pressure from President Abbas and the Palestinian delegation to expedite the launching of an official investigation, Prosecutor Bensouda reportedly has been unwilling to commit to ruling on whether the Palestinian cases will move past the current preliminary examination stage, which has been ongoing for over a year at this point, before her term expires in 2021.
The Palestinian Authority does not seem content to let its quest for justice simmer indefinitely in the hands of the Prosecutor, however, and is stirring the pot through its other recent actions. On March 15th, for instance, Palestine became the 118th member state of The Hague’s Permanent Court of Arbitration (PCA), an intergovernmental organization dedicated to brokering resolutions to disputes between states. While the PCA may not be as prolific or high profile as the ICC, its acceptance of Palestine as a member serves to further the image of Palestine as a legitimate state.
Even more recently, Israeli officials were irked by the United Nations Human Rights Council’s (UNHRC) March 23rd decision to appoint Michael Lynk—a Canadian professor who has been very vocal about his anti-Israeli (and, purportedly, even anti-Semitic) stance—as the new “special rapporteur” assigned to investigate alleged human rights abuses inflicted by Israel against Palestinians in the occupied zones. UN Watch—an NGO dedicated to monitoring the conduct of the United Nations and holding it to the provisions of its charter—criticized the UNHRC’s selection of Lynk, stating that he blatantly fails the UNHRC’s own stipulated requirements of being impartial and objective.
Palestine’s slew of recent moves in the name of justice may only be pushing any prospects of an Israeli-Palestinian peace agreement into the even more distant future. By joining the ICC and bringing cases against Israel, Palestine opens itself up to scrutiny and possible indictments, and antagonizes Israel and the United States in the process. Indeed, U.S. politicians and policymakers, including several presidential hopefuls, have already rushed to defend Israel in the struggle against Palestine’s ICC crusade. At this week’s annual convention of the American Israel Public Affairs Committee (AIPAC), for instance, Hillary Clinton condemned Palestinian actions in the Gaza strip—including Hamas’s rocket attacks—and reaffirmed the importance of the American-Israeli relationship. In addition to its “special relationship” with Israel, the United States has other reasons for standing in opposition to Palestinian ICC claims. Firstly, the United States has a deeply-rooted aversion to forfeiting even a modicum of sovereignty, even when the relinquishing of autonomy is for the nominally “good cause” of joining international institutions or governing bodies. In the more recent context of the global War on Terror, the United States has a vested interest in ensuring that there is no precedent for indicting nationals of non-ICC member states for crimes committed on the soil of ICC members (which includes Afghanistan), as many countries have openly condemned the United States for its use of select tactics (i.e. enhanced interrogation and drone strikes) over the course of the war.
Finally, although Palestine’s admission into the ICC was certainly a bold political statement—and one that the Israelis had not foreseen—Israel may not have much to fear just yet. After what would likely be years of investigations, even if the ICC concluded that there was sufficient evidence to indict Israelis for war crimes or other transgressions, enforcing the arrest warrants and punitive measures thereafter would be an arduous task unto itself. The ICC does not have arrest powers, but must rather rely on the state harboring the indicted individuals to conduct the arrest. If the state in question refused to do so, as Israel surely would, there is little the ICC can do without engaging in cumbersome legal acrobatics. Ultimately, Palestine’s accession to the ICC highlights the constraints on the organization, serving as a reminder that international institutions, far from serving as purveyors of global governance, are only as successful as the world’s most powerful states choose to make them.
Ashley Rhoades is an M.A. candidate in her final semester of the Security Studies Program at Georgetown University, concentrating in International Security. She graduated from Stanford University in 2012 with a B.A. Honors in Political Science and a minor in Art History. Her prior professional roles include working as a Research Assistant at Stanford focusing on the Arab-Israeli conflict, as a Litigation Paralegal for a firm in DC, and as a Media Associate for a United Nations-affiliated start-up. Most recently, Ashley completed an internship at the National Defense University with the Chief of Staff of the Army’s Operation Iraqi Freedom Study Group. She is currently serving as the Editor-in-Chief of the Georgetown Security Studies Review.