The ICC in Palestine: Threat or Promise?

With the backdrop of growing tensions and violence in Gaza, the question of whether the International Criminal Court (ICC) will intervene in Palestine has come back to the fore. The following is an excerpt from my article, from yesterday, for the Monkey Cage blog at the Washington Post. You can read the full article here.

(Photo: Bernat Armangue / AP)

(Photo: Bernat Armangue / AP)

On July 6, Palestinian Authority President Mahmoud Abbas issued a stern warning: “Those who fear courts should refrain from committing crimes.” The intended target of this warning was obvious: Israel, which is in the midst of yet another military offensive in Gaza. The meaning of his statement was also clear: Palestine will not hesitate to ask the International Criminal Court (ICC) to intervene. Despite this rhetoric, international accountability for crimes in Palestine and Israel is as unlikely today as it has ever been. None of the key actors – the Palestinian Authority, Israel, Western states or the ICC itself – is able or willing to achieve justice for the victims and survivors of this intractable war.

Palestine’s interest in an ICC intervention is nothing new. The government initially referred Palestine to the ICC in January 2009. More than three years later, then-Chief Prosecutor Luis Moreno-Ocampo decided that the court could not investigate alleged crimes because it was unclear whether Palestine was a state – and therefore whether it could legally refer itself to the ICC. Whilst the majority of human rights advocates agreed that the court was right in ruling that it was not the appropriate venue to decide on Palestinian statehood, many were perplexed and even insulted that the prosecutor took so long to issue a handful of sentences on a subject with such legal and political gravitas.

In response to the prosecutor’s decision not to open an investigation, Palestine went on a statehood shopping spree, seeking ascension to various U.N. agencies. The General Assembly overwhelmingly voted to recognize Palestine as a state and granted it “Non-Member Observer State” status. The implication was clear: With recognized statehood Palestine could join the ICC and re-refer itself to the court.

Palestine’s efforts have been met with a wall of political obstruction. Western powers have attempted to coerce the Palestinian Authority into ceasing its pursuit of full statehood and a possible referral to the ICC. Much fuss has been made that seeking an ICC intervention would underminepeace talks brokered by U.S. Secretary of State John Kerry. During the negotiations, one U.S. officials suggested that so long as talks were ongoing, there was little threat of an ICC intervention. More recently, U.S. Ambassador to the United Nations Samantha Power was unequivocal,stating that the United States was “absolutely adamant” that Palestine should not join the ICC as the court “is something that really poses a profound threat to Israel.”

But an ICC intervention also poses a real threat to certain Palestinian groups. It is a common misconception that Palestinian authorities can “press charges” or refer Israel to the ICC for alleged crimes committed in their protracted, decades-long war. In reality, Palestine can only refer itself to the court and, if it did so, ICC investigators would be restricted to investigating crimes perpetrated on Palestinian territory – a territory that is, for purposes of criminal investigation, still unclear. Any alleged crimes perpetrated in Israel – including the construction of illegal settlements – would be inadmissible.

Indeed, those pressing for a referral of the ICC should be careful what they wish for. Some have suggested that there is a strong case to be made that Palestinian groups like Hamas and Fatah are responsible for international crimes under the Rome Statute and that the seemingly indiscriminate shelling of civilian areas by Palestinian militants in Israel would be prioritized for investigation by the prosecutor. As SOAS criminal law professor Kevin Jon Heller argues: It would be “much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory.”

Nevertheless, the very threat of requesting an ICC intervention has been useful to the Palestinian Authority. In this exceptionally asymmetricconflict, Abbas has been left with few means of political leverage. The threat of an ICC intervention may yield certain benefits for the Palestinian Authority – especially if Israel and the “West” are sufficiently afraid of it, which they certainly appear to be. Moreover, being seen as the unjustly targeted party whose recourse to international accountability is consistently blocked by greater powers and aggressors is undoubtedly rich political capital.

You read the rest of the article here.

UPDATE: Alex Whiting has some important and very useful reservations about some of the points made in the article:

I don’t think it’s right to say that the construction of illegal settlements would be inadmissible because they are perpetrated in Israel. The whole point is that they are constructed on occupied territory, not part of Israel but rather part of the state of Palestine. Yes there are disputes about the borders and disputes about who has authority over crimes committed in zone A of the occupied territories. But I don’t think anyone argues that the settlements are beyond the scope of the ICC because they are in Israel.

Second, you link Kontorovich’s article. Yael Ronen wrote a response to his piece in a subsequent JICJ issue (Vol. 12 issue 1). [see here]

Third, I think you have to be careful about lumping together Hamas and Fatah when speaking about responsibility for crimes on the Palestinian side. Yes Hamas has fired rockets from Gaza, but I don’t think anyone attributes that conduct to Fatah or to the PA.

Make sure you check out the comments from Eugene  Kontorovich and Michael Kearney below as well!

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), Israel, Palestine, Palestine and the ICC, Peace Negotiations, United States. Bookmark the permalink.

3 Responses to The ICC in Palestine: Threat or Promise?

  1. Eugene Kontorovich says:

    Hamas is part of the PA government. How on earth can one not attribute its conduct to the PA? (And Abbas has not disowned it in any way.) By the way, my argument was not that settlements are in Israel, rather that they are not clearly in Palestine.

  2. Michael Kearney says:

    Also re settlements, there are a few distinct war crimes that tend to get lumped in together. We have expropriation & destruction of property (Rome 8.2.a.iv), destroying or seizing enemy’s property (Rome 8.2.b. xiii), and then the transfer of the civilian population into occupied territory (Rome 8.2.b.viii). The seizure and destruction of protected property for the construction of settlement infrastructure is, in criminal accountability terms then, different from the transfer of civilians into settlements in occupied territory.

    As for the Kontorovich article in the JICJ, there’s some howlers at p 999 worth checking.

    And as for Kevin Heller’s point that it would be easier for the OTP to go after Palestinian fighters rather than Israelis, I’m not sure I see why that would be the case. The amount of evidence available pointing to Israelis responsible for crimes under the Rome Statute is massive. The entire settlement project is government policy, unapologetically celebrated and executed.

    Politically of course the OTP can cherry pick who they want to go after, but we have to bear in mind that Palestinians are living in a situation where they are facing death from Israeli armed forces (or civilians) on a permanent basis. People who join armed groups know they will be killed sooner or later. Hamas and other armed Palestinian groups have been pretty consistent in wanting the ICC to intervene. They’re not stupid and know they too will be liable to prosecution. That said, were the OTP to exclusively or disproportionately go after Palestinians, rather than the Israelis who are directing the occupation, the limited possibility of international justice being possible via the ICC (anywhere) would simply vanish.

    Also I think you’re being unduly flattering to Abbas by describing anything he says as ‘stern’…

  3. Pingback: Top 10 Year in Review: International Criminal Justice | Just Security

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