Palestine joins the International Criminal Court – what’s next?

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(Palestinian President Mahmoud Abbas)

Today, UN Secretary-General Ban Ki-moon announced that Palestine’s legal submission to the International Criminal Court has been successful and that “the State of Palestine” will enter the court’s jurisdiction on April 1st of this year.

The ICC is the world’s foremost war crimes court that operates on the basis of something called the Rome Statute, a 2002 legal treaty which outlines and defines some crimes against humanity. It disregards national statutes of limitations (the inability to prosecute a crime after so many years have passed), and it specifies numerous crimes that fall within the court’s jurisdiction such as torture, forcible expulsion, apartheid, genocide, ethnic cleansing, and the persecution of an “identifiable group”. Article 8 bis also defines crimes of aggression such as “military occupation”, the “annexation of territory”, and the “blockade of ports and coasts”, although the ICC doesn’t currently have prosecutorial power over these crimes.

But the ICC is not limitless in jurisdictional power. States must ratify the Rome Statute for the court to have any ability to investigate and prosecute crimes that occurred within their territory, and there are additional limitations on their ability to even do that. If a state can prove that it investigated an alleged crime using one of its own courts, the ICC is usually not allowed to prosecute that specific crime because that would be akin to double jeopardy (being tried for the same crime twice) under what’s known as “complementarity”. The only time the ICC can bypass a state is when the state has proven it is unwilling or incapable of investigating a crime, or when the UN Security Council passes a resolution that calls for an investigation.

Where Israel and Palestine is concerned, the immediate chances of getting an investigation and a prosecution look slim. Israel is not a functioning member of the ICC, meaning it has not given full consent for the court to prosecute crimes that take place within its borders, and it is currently conducting 13 investigations into the latest onslaught on the Palestinian people – Operation Protective Edge. That leaves the ICC with little room to argue that Israel is intentionally ignoring war crimes should it want to do so.

Similarly, going through the Security Council route will bear no fruits because the U.S. is a permanent veto member, meaning that any resolution passed by the Council can only go into effect if the U.S. allows it. The U.S. has for a long time a public policy of advocating “direct negotiations” between Israel and Palestine, condemning any move by either side to take their case to the international arena. The SC recently shot down a Palestinian statehood resolution thanks to the efforts of U.S. foreign policy, making the SC completely incapable of getting the ICC to move things along. As Robert Fisk points out:

Who now recalls the fatalities of the 2008-9 Gaza war? One thousand four hundred and seventeen Palestinians dead, 313 of them children, more than 5,500 wounded. That was the conflict upon which President-elect Obama had no comment to make.

All of the above is assuming, of course, that the ICC is able to prosecute war crimes even in Palestinian territory. The State of Palestine is a choppy, abstract nation thanks to settlement building and the Israeli occupation, and many world governments do not recognize it as a legitimate state because it has no clearly defined borders. The ICC will have to settle the issue of Palestinian statehood at some point, or it will forever be fighting against questions of whether alleged war crimes took place in Israel (meaning they probably can’t be prosecuted) or not.

Palestinian President Mahmoud Abbas has almost no power to influence the ICC even if his state were properly recognized, since the most any individual can do is suggest that a situation be looked at by the court. Abbas cannot determine what the ICC prosecutes, what it rules, or what the aftermath is, all of which can take years anyway and which may end up with Palestinians being prosecuted instead of Israeli officials.

Furthermore, the ICC takes years to conduct investigations, and has only ever indicted 36 individuals, only two of whom have actually been convicted. It has no standing army, no police force, and absolutely no capacity to perform arrests, instead relying on forces close to the indicted individual to perform apprehensions. If by some miracle the ICC called for the arrest of some Israeli officials and soldiers, they’d need to find a state willing to perform those arrests without itself violating international law, the likes of which it hasn’t found in the past, for instance when it indicted Sudanese President Omar al-Bashir and neighbouring African states simply refused to arrest him.

The most war crimes charges would mean is that those Israeli officials and soldiers might not be able to visit some European countries, similar to how George W. Bush recently had to cancel a trip to Switzerland due to fears about being arrested. Any unlikely convictions on West Bank settlements would also have serious business repercussions. The ICC is not above regional politics either, having faced significant pressure to drop a case against Kenyan President Uhuru Kenyatta because his government was vital in fighting African terrorism (even though he himself is a terrorist).

But although the ICC is somewhat powerless, Israel is not invulnerable to prosecution. Its settlement building in the West Bank and Golan Heights have never been investigated by the Israeli courts, despite the international community (with the exception of the U.S. and a handful of others) condemning them as a violation of international law. The ICC, if it did go ahead with investigations, would get more done if it looked at settlements.

There is no doubt that slaughtering children and using chemical weapons constitutes a war crime, and last summer’s assault on the Gaza Strip was too much to bear, but the chances of Israeli officials actually being arrested are highly unlikely, and from a legal standpoint, joining the ICC is an empty move. Thankfully, that doesn’t seem to be Mahmoud Abbas’ motive for signing the Rome Statute, and this ascension to the ICC will damage Israel in other ways, delivering yet another blow to its already shaky international reputation and again letting the world know that Israel simply does not care to abide by international law or treat civilians with basic respect.

For all its callous disregard for international law, Israel doesn’t want to be apartheid South Africa and doesn’t want to be on what Daniella Peled calls the “permanent defensive”. It wants friends, it wants international dealings, and greatly fears being an isolated state. If it isn’t prepared to stop committing genocide and Palestine continues to take the fight to the international arena, it may well end up as one.

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