The Role of the ICC in the Israeli-Palestinian Conflict

December 10, 2012

Benjamin Netanyahu addressing the UN. Marco Castro/UN

“Yes, the occupation will continue, the settlements will continue, the crimes of the settlers may continue, but there will be consequences.”

– Saeb Erekat, Palestinian negotiator

To the delight of many states and the dismay and indignation of some, Palestine has made a step forward on the international stage. Last week, the UN General Assembly accepted the request which granted Palestine the status of a “non-member observer State”. Palestine’s role at the UN will not undergo a drastic change, but the International Criminal Court might be mentioned more often in the future when we read about the conflict between Israel and Palestine. Palestine is now eligible to sign the Rome Statute of the ICC with possible consequences for Israel. These consequences might appear in the form of Palestinian demands to investigate and prosecute alleged crimes against humanity and war crimes conducted by Israel.

Palestine recognized the ICC’s jurisdiction already in 2009, albeit unsuccessfully as the ICC rejected the unilateral declaration on the grounds that Palestine does not fulfill the basic prerequisite of being a state. Importantly, the ICC claimed that in the case of a dispute about the question whether an applicant does meet the requirements attributed to statehood, the UN Secretary General, who receives the instrument of accession, would follow the advice of the UN General Assembly. The Assembly has now spoken and decided in favor of Palestine. The ICC was established by the Rome Statute and is tasked to hold individuals accountable for crimes such as war crimes, crimes against humanity, aggression, and genocide. Palestine is likely to address crimes on its territory such as forced displacement and persecution. Israel, which is not a state party to the Rome Statute of the ICC, would struggle to justify these alleged crimes as military necessity.

Fatou Bensouda, the Chief Prosecutor, might soon be addressed by Palestinian authorities who hope to bring Israeli Prime Minister Benjamin Netanyahu to trial. However, the likelihood that we will see Netanyahu in The Hague is rather small, probably even impossible. The Prosecutor does not have to conduct an investigation if she deems that there is either insufficient evidence proving, or at least assuming, that individuals in Israel have committed any war crimes or crimes against humanity or by drawing on the principle of complementarity, which would come into force if the Prosecutor assumes Israel to be capable and indeed willing to investigate the accusations.

Notwithstanding these potential barriers, the Prosecutor might decide that an investigation is necessary; though the possible necessity of an investigation is likely to be negated by Realpolitik. Notwithstanding the fact that the Czech Republic was the only European state to vote against an upgrade of the Palestine status, it is rather doubtful that states that abstained or indeed voted in favor of Palestine, would accept such an investigation.

UK’s Demands Incompatible with Statehood

The UK, for example, was believed to vote in favor of Palestine, though it abstained in the end. A reason might be a demand made by the UK authorities: “Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice which could both be used to pursue war crimes charges or other legal claims against Israel.”

The UK’s underlying rationale for this demand is understandable as it fears an end to any hope for a peace process. Nonetheless, the conditioned support by the UK contradicts the very norm of statehood and its attributed rights. On the one hand, Palestine would be recognized, but on the other hand this specific statehood would not enjoy rights commonly attributed to a sovereign state; namely, the right to sign international treaties.

Another pivotal role is played by the US, which has not signed the Rome Statute of the ICC, but, nonetheless, has started to accept the ICC as a valid tool to hold individuals responsible for mass atrocities accountable. An investigation pointed at the Israeli government is very likely to cause a withdrawal of US support for the ICC.

Further, the ICC would not be able to apprehend suspects as it would have to rely on the Israeli authorities to arrest and extradite suspects. One does need to elaborate on the likelihood of Israel or any of its allies arresting Israeli individuals alleged of crimes against humanity by the ICC.

A Glimmer of Hope

However, there is reason for hope. Reuters reported that “Netanyahu has indicated in private he fears Palestinians might accuse his government of violating the Geneva Conventions’ prohibition on forced displacement of populations by establishing settlements”.

Maybe the chance of ICC involvement, slight though it is, will influence some degree of restraint in future Israeli decision-making. Notwithstanding the fact that that many pointed their finger at Israel recently, one should not forget that Palestinians might become the subject of investigations as well. This, in turn, might exercise some restrain on Palestine. Subsequently, possible ICC involvement might exercise some restraint on both sides. This will not solve the conflict, especially as retributive justice exercised by the ICC addresses merely symptoms but not the causes of conflict. However, the conflict might be less violent and we may see some more negotiations, rather than violence, in future.

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