The ICC in Palestine: Be Careful What You Wish For

Kevin Jon Heller joins JiC for this second post in our symposium on Palestine and the International Criminal Court (ICC). Kevin surely needs no introduction to readers of JiC, but, just in case, he is a Professor of Criminal Law at SOAS, University of London and a contributor to Opinio Juris.

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

Palestine officially becomes a member-state of the ICC. Second Vice-President of the ICC Judge Kuniko Ozaki, President of the Assembly of States Parties H.E. Sidiki Kaba, and Palestinian Foreign Minister Dr. Riad. Al-Malki (Photo: ICC)

I want to start with a prediction, one I’ve made before and still subscribe to: the ICC will never open a formal investigation into the situation in Palestine. People of all political persuasions seem to think that the ICC is somehow eager to leap into the most politicised conflict of the modern era. I disagree, not because the situation doesn’t deserve to be investigated – I think it is one of the gravest situations in the world – but because I don’t think we take the ICC’s institutional interests into account nearly enough when we prognosticate about what it might do. And I see very little upside for the ICC in opening a formal investigation.

Why It Won’t…

My first concern is that the Office of the Prosecutor (OTP) simply does not have the resources necessary to investigate additional situations – particularly one as complex as Palestine. To say that the OTP is overstretched is a considerable understatement. So you have to ask: why would it spend its limited resources on the Palestine situation, as opposed to all the other non-African situations it has been monitoring for years? Public pronouncements notwithstanding, the OTP has shown very little desire to wade into situations where major superpowers are watching their behaviour. In Afghanistan, where the US is potentially subject to the Court’s jurisdiction, the preliminary examination is now in its 8th year. In Georgia, where Russia is obviously sitting on the sidelines, the preliminary examination is now in its 6th year. So the OTP knows full well how to slow-walk a preliminary examination into oblivion, and that seems to be precisely want it wants to do when superpowers are involved. And very few superpowers are neutral with regard to the situation in Palestine.

Then there is the cooperation issue. I think this is a very serious problem because Israel could easily prevent the OTP from effectively investigating Israeli crimes in Palestine, especially with regards to crimes in Gaza. Yet Israel would be more than happy to help the OTP investigate Hamas’s crimes. We have seen such asymmetrical cooperation from a variety of states – Exhibit A being Al Bashir, who has stonewalled the Court at every turn concerning members of his government (including him) but was more than happy to cooperate when the OTP decided to prosecute Abu Garda, the rebel leader, for masterminding the 2007 attack that killed 12 UN peacekeepers. “You want some tanks? You want some soldiers? We will happily escort you into Darfur…” There is thus a real danger of a formal investigation in Palestine becoming, de facto if not de jure, a one-sided investigation into Hamas. I think that would be very problematic for the ICC’s legitimacy – and represents yet another reason for the OTP to simply stay out of the conflict.

But If It Did…

To be sure, my predictions are not always right. So it is worth thinking about what would happen if the OTP did open a formal investigation. My political sympathies are very much with Palestine, but there are a number of reasons to suspect that a formal investigation would not turn out as well for the Palestinians as many people think. Most obviously, Hamas’s deliberate rocket attacks on civilians would be by far the easiest of all the crimes to prosecute in either Gaza or the West Bank. Not the gravest crime – but absolutely the easiest to prove in terms of its legal elements and evidentiary considerations. So I would be very surprised if the OTP’s initial charges were not against Hamas.

That said, there are clearly some Israeli crimes that would likely attract the Court’s attention. Operation Protective Edge involved deliberate attacks on Palestinian civilians and indiscriminate bombings of entire neighborhoods, such as Sujaiya. But most people seem to think that Israel is particularly vulnerable concerning disproportionate attacks. I don’t doubt that Israel launched many such attacks, but international criminal law (ICL) is not international humanitarian law (IHL). The war crime of launching an attack that causes excessive civilian damage requires a very specific mens rea (mental state); indeed, a violation of Art. 8(2)(b)(iv) – and I’ve written quite a bit about this – is one of the most difficult war crimes in the Rome Statute to prove. Under IHL, all you have to show is that a reasonable military commander would have recognized that the attack would be disproportionate. But if you are going to charge a commander with a war crime, you have to prove that the commander subjectively concluded that it would be disproportionate prior to launching the attack. So unless the IDF commander said to himself “there is absolutely no point to this attack, it’s going to kill dozens of civilians, but I’m going to do it anyway,” he would be entitled to an acquittal. So we cannot forget – particularly with regards to disproportionate attacks, but also with regards to other violations of the Rome Statute – that there is a difference between claiming that Israel committed crimes and proving them in court beyond a reasonable doubt.

Let me be clear: I am not saying that Hamas would be the only side prosecuted during a formal investigation into the situation in Palestine. I am simply pointing out that a rational prosecutor – and ICC Prosecutor Fatou Bensouda is very rational – would be very likely to go after Hamas first.

Yet that might not be a bad thing: if the OTP prosecuted Palestinians first, it would feel a great deal of pressure to prosecute Israelis, as well. Indeed, I find it interesting that Hamas is fully aware of their vulnerabilities under the Rome Statue, but has nevertheless decided that the risk is worth it. So here is my provocative suggestion: if Hamas wants to maximize the likelihood that the OTP will not only investigate Palestine but also bring charges against Israelis, it should pursue what we might call legal martyrdom, literally volunteering its own military commanders to be prosecuted first. There is no precedent for this at the ICC, but something similar occurred in the Darfur investigation. As noted above, the Sudanese government has always refused to cooperate with the Court. But not so Abu Garda, the rebel leader charged with masterminding the 2007 attack on UN peacekeepers. He voluntarily appeared before the Pre-Trial Chamber – the first suspect to ever do so – and ended up having the charges against him dismissed. So if Hamas really wants to put the OTP in a difficult position, one that that essentially dares the OTP to open a formal investigation and go after Israeli crimes, it should offer up its own commanders and promise to cooperate fully with any ICC prosecution.

At the same time, in my view, a failed OTP investigation into the situation in Palestine would be vastly worse than no investigation at all. Let’s imagine that the OTP does go after Israelis. Anyone who thinks that such prosecutions would inevitably result in convictions has not been following the ICC’s record of futility very closely. And the mountain is much higher to climb with Israel, for all the reasons discussed in this post. What effect would acquittals have on ordinary Palestinians? On the international community? Israel’s press releases, claiming vindication for Operation Protective, write themselves.

To conclude, perhaps the OTP slow-walking the preliminary examination into oblivion is actually the best possible outcome for Palestine. There is genuine expressive value to Palestine acceding to the Rome Statute, thereby exposing itself (including Hamas) to prosecution, while Israel simply furthers its pariah status by attacking the ICC as illegitimate. That value will exist even if the OTP does not open a formal investigation. So why shouldn’t Palestine reap the benefits of accession without having any of its leaders end up in the dock in the Hague?


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 Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), International Law, Israel, Justice, Palestine, Palestine and ICC Symposium and tagged . Bookmark the permalink.

20 Responses to The ICC in Palestine: Be Careful What You Wish For

  1. Alex Whiting says:

    I agree with a lot of your analysis here Kevin, and the idea of Hamas offering up its commanders for investigation or prosecution is certainly provocative (though I think even better if Palestine took steps to investigate alleged crimes on their side on their own). The first thing the OTP will do now will be to look at what each side is doing to investigate alleged crimes. Israel has started some investigations into Gaza allegations, and the OTP will monitor these to see if they are adequate and genuine, but it will soon be asking the Palestinians what they are doing to investigate on their side. So the pressure will be immediate in the form of these inquiries from the OTP. With regard to predicting the future, I think your prediction of no investigation is only possible if Palestine never ends up filing an Article 14 referral. In the weeks leading up to 1 April, there were statements from the Palestinian side that they would refer the situation, including both alleged crimes in Gaza and the settlements. But according to reports yesterday, they have decided to wait. Why? For what? For how long? And why are there no questions about this? Is Palestine having second thoughts, gathering evidence, waiting for more settlement activity, or thinking about using the Article 14 referral as another bargaining chip?

    If Palestine does not file a referral, then how do things look to the Prosecutor? On the one side she has Israel, which obviously does not want any ICC involvement, and on the other side Palestine, which acceded to the Rome Statute but has not asked for the OTP to open an investigation pursuant to Article 14. In that scenario, the Prosecutor could quite justifiably say that given limited resources and the demands of other situations and cases, she is not going to expend resources on a situation where neither side has demonstrated a clear commitment to the ICC investigating and prosecuting. In other words, although the Prosecutor does not need a referral from Palestine to open an investigation (she can do so proprio motu with authorization from the PTC), a referral would be an important signal that Palestine is ready to cooperate with an ICC investigation. Without it, the OTP would see no prospects of success (even with it the prospects are low, as Kevin quite rightly points out) and really no reason to go forward. On the other hand, if Palestine files the Article 14 referral, then I agree that the Prosecutor will take a long time in the preliminary examination phase, maybe even a really long time, but the day will come when she will have to make a decision. It is possible that she would conclude on a combination of grounds (complementarity, legal complications, etc.) that no investigation was warranted, but that is hard for me to imagine.

  2. iDikko says:

    What an excellent read this is… Thank you!

  3. el roam says:

    Thanks for very interesting post Kevin . Extremely complicated, yet one major one with your permission :

    You state : supreme powers ….. it seems that you tend to forget , that the EU is effectively one of them !! In fact, one good reason for Benjamin netanyahoo, to disperse recently his government and go for election, was the huge international pressure he was in (concerning situation in the occupied territory and peace process) pressure deriving mainly from the EU, Since he wanted to get refreshed mandate from the people and being able to stand and re- stand on his ground . EU to remind you , much more biased towards that court , over others generally speaking , let alone : super powers .

    Even so , all may depend upon the new or current US administration . They are losing patience , many loose patience concerning that conflict. Another round in Gaza is a matter of time it seems, the international community, won’t be able to bear such huge distraction and casualties once again it seems . pressure is launched all around (including France and the Security Council forming timeline for resolving that conflict) now:

    I think that the ICC, would like to show, that surely he has a word, or surly may fulfil the duty expected from him, if political pressure, doesn’t yield .So , observing it from that angle , may reveal different configuration ahead .


  4. Observer says:

    Kevin, did you intentionally skip over the crime of directly or indirectly transporting population from the occupying power to the occupied territory? Because that one is also going to be very easy to prove, requires no complicated proportionality analysis, and Israel can make no claim of complementarity.

  5. R.H. says:

    Indeed, what about the numerous violations of art. 49.6 of GC IV? According to the Wall case, pretty much any contribution to the population transfers is a war crime, and for the “indirect” transfer the bar seems to be really low. Surely ICC could come up with some home run prosecutions, considering that Israeli leaders don’t even hide their true intentions with regard to settlements.

  6. Hostage says:

    I agree with Kevin. It appears the Prosecutors have repeatedly signaled that they don’t intend do anything about this situation. But life is full of unexpected surprises. I also agree with Observer and R.H.

    The Israeli Supreme Court has declared that both the settlements and the thousands of Palestinians who have been transferred out of the occupied territory into prisons inside Israel are non-justiciable issues.So there’s no question of having to wait on the IDF staff Judge Advocate General’s investigation to determine whether Israel is “unwilling or unable” to address those illegal situations.

    All of the Prosecutor’s have supposedly been studying this situation since 2009, In all of that time, they should have at least taken notice of the ICJ’s 2004 findings of fact. Most of them were elements of on-going offenses listed in the Rome Statute and that Court’s findings were incorporated by reference in the Goldstone mission and the Arab League’s international fact finding mission reports – as well as a host of other Article 15 communications from NGO’s, like HRW and AI. The ICC Prosecutor’s status report to the UN mentioned that he had gone to Cairo to receive the League’s report in person and that he had met with some of the report’s authors at the Hague upon his return.

    Many of the interested State Parties which participated in the Wall case mentioned those violations of the Rome statute in their own written submissions to the ICJ, including both Jordan and Palestine. The Court noted (para 145) : “it was argued that, under the terms of the Fourth Geneva Convention, Israel is under an obligation to search for and bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of international humanitarian law flowing from the planning, construction and use of the wall.” Those crimes were committed with impunity and are obviously an on-going offense of concern to the international community of states. The 10th Emergency Special Session of the UN General Assembly, which requested the advisory opinion, is still in session from time to time and there have been no shortage of allegations about illegal Israeli actions in the occupied Palestinian territory from that body.

    According to the documents President Abbas has forwarded to the 10th Emergency Special Session and the Security Council, the list of cases that he should be referring to the Prosecutor are no great mystery. For example: “This letter is in follow-up to our previous 489 letters regarding the ongoing crisis in the Occupied Palestinian Territory, including East Jerusalem, which constitutes the territory of the State of Palestine. These letters, dated from 29 September 2000 (A/55/432-S/2000/921) to 12 March 2014 (A/ES-10/620-S/2014/180), constitute a basic record of the crimes being committed by Israel, the occupying Power, against the Palestinian people since September 2000. For all of these war crimes, acts of State terrorism and systematic human rights violations being committed against the Palestinian people, Israel, the occupying Power, must be held accountable and the perpetrators must be brought to justice. – See UN document A/ES-10/621 – S/2014/205 21 March 2014.

  7. Observer and RH,

    The post was not intended to catalogue every possible war crime committed by Israel. Transfer of civilians into occupied territory is obviously relevant, though I disagree with Observer that the war crime will be “easy to prove,” given that no court has ever interpreted it — particularly its “indirect” transfer provision, which is absent from GC IV. I did not address indirect transfer because I believe that the OTP will focus, at least initially, on Gaza. If I’m wrong about that, of course the settlement-related war crimes will be important.

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  9. j1ceasar says:

    Of course Palestine ( hamas) won’t give its commanders up for punishment. Probably all of them would be liable . 2,000 + dead civiliians because Hamas fires rockets from civilian areas.

  10. j1ceasar says:

    Its all public relations.

  11. stevenhb13 says:

    I can understand why you’d say that the ICC won’t be in a rush the investigate the PA and Hamas but your sympathies lie in the wrong place. In all cases, hostilities started after indiscriminately aimed rockets were fired from Palestinian-controlled areas at Israeli civilian targets. That the Palestinians have lousy aim is immaterial to the conversation. What is material is that the rockets tended to be fired from civilian areas by cowards hiding behind women and children. Tell me that alternative Israel had in response? Should Israel have waited until some rocket managed to hit some civilian target, killing many? Can you imagine what would have happened if rockets were fired out of northern Mexico at civilians in Texas without any effort by the Mexican government to stop them from being launched?

  12. SHAME ON YOU. You say that Hamas’s rockets ‘are not the gravest of crimes.’ By your own admission you are biased towards Palestine so everything that you write here is completely one-sided. What an appalling state of affairs because disinformation about Israel leads to antisemitism on a global scale. And you can’t even see it or even care.

    • Hostage says:

      Re: SHAME ON YOU. You say that Hamas’s rockets ‘are not the gravest of crimes.’

      He didn’t say they were not crimes, and they certainly pale in comparison to the level of devastation and loss of life in many other historical and on-going conflicts elsewhere.

      Re: disinformation about Israel leads to antisemitism on a global scale.

      I’m a person of Jewish descent, who simply takes a dim view of the crimes committed by either side, much like Kevin. I don’t accept the propaganda line that criticism of Israel’s wrongful acts of state is responsible for antisemitism. On the contrary, Israel, the Zionists organizations, and the Jewish Federations spend millions of dollars per year on its propaganda campaigns that deliberately conjoin “the Jewish people” to efforts to legitimize war crimes and crimes against humanity that target the Palestinians – and that fosters more antisemitism on purpose than balanced articles like this one could ever generate by accident.

      Israel has a well deserved reputation for human rights abuses, including the fact that its Declaration of the Establishment of the State of Israel was issued by a Jewish-only government that claimed a geographical region with a Palestinian population that matched or exceeded its own – and that it has worked assiduously ever since to violate the assurances supplied by the Jewish Agency to the UN that the government of the Jewish state would protect the rights and property of any non-Jewish inhabitants subjected to its jurisdiction. Instead it evicted them through attacks, the imposition of martial law or military occupations and policies and practices of ethnic segregation and domination.

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  17. While Palestine and Palestinians are awaiting their salvation and justice :

    Yesterday, 24th. March 2016 at 2:00 p.m. Central European Time [CET] at around 9:00 p.m. Kuala Lumpur and Selangor time, another SERB, a Bosnian Serb, who was the former head of state and head of government, the former President of Republika Srpska and Supreme Commander of the Army of Republika Srpska during the Bosnian War and sought the direct unification of that entity with Serbia, Radovan Karadžić, commonly referred to as “Butcher of Bosnia”, the same epithet used on his associate Ratko Mladic, by broadcast journalists and reporters, was found guilty of genocide over the 1995 massacre in Srebrenica and sentenced to 40 years in jail.

    The key verdict from an United Nations-sanctioned tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague was delivered 18 months after a five-year trial of Karadžić, accused of being one of the chief architects of atrocities during the 1992-95 Balkans war.

    The ICTY had found him guilty of genocide, war crimes and crimes against humanity, and sentenced to 40 years imprisonment. He was found guilty of genocide for the Srebrenica massacre, which aimed to kill “every able-bodied male” in the town and systematically exterminate the Bosnian Muslim community. He was also convicted of persecution, extermination, deportation, forcible transfer (ethnic cleansing) and murder in connection with his campaign to drive Bosnian Muslims and Croats out of villages claimed by Serb forces. Verdicts which found him guilty of 10 out of the 11 charges he faced at the International Criminal Tribunal for the former Yugoslavia.

    Karadžić, as political leader and commander-in-chief of Serb forces in Bosnia, was responsible for some the worst acts of brutality during the war, including the 44-month deadly siege of Sarajevo and the 1995 massacre of more than 8,000 Bosnian men and boys in the Srebrenica genocide, in a safe enclave designated by the UN.

    The verdicts are the most significant moment in the 23-year existence of the ICTY, and among the last it will deliver. Set up in 1993, the court has so far indicted 161 suspects. Of those, 80 were convicted and sentenced, 18 acquitted, 13 sent back to local courts and 36 had the indictments withdrawn or died.

    Radovan Karadžić, had agreed to evil and he epitomised evil. The verdicts became a realised commitment to JUSTICE.

    The Responsibility to Protect (R2P) Principle must accordingly be applicable towards the protection of Palestinians while they await their salvation and justice.

    Victims all over the world are now waiting for their own JUSTICE. This trial judgment shows that it is possible to deliver it, through an UN-sanctioned International Criminal Tribunal or the International Criminal Court.

    Hakimi bin Abdul Jabar
    LLB (Hons) University of Wolverhampton [1998]
    Public International Law Class of 1997-1998

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