Palestine at the ICC: A headache Israel might be able to live with

War crimes allegations threatened by Abbas could one day produce convictions, but his route ahead is strewn with complex legal obstacles

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

The International Criminal Court in The Hague, Netherlands (Vincent van Zeijst/Wikimedia Commons/File)
The International Criminal Court in The Hague, Netherlands (Vincent van Zeijst/Wikimedia Commons/File)

Jerusalem reacted angrily Wednesday to the Palestinians’ decision to join the International Criminal Court, with Prime Minister Benjamin Netanyahu warning of “steps in response.” Palestinian Authority President Mahmoud Abbas had long threatened to make this move, which many considered his doomsday device against Israel.

But those who are familiar with the workings of the Hague-based court know that the route to convicting Israelis for war crimes or crimes against humanity is long and complicated.

According to some experts, it is unlikely that the ICC would even launch criminal proceedings against prominent Israelis for actions and policies vis-à-vis the Palestinians. Even if it did, and eventually issued indictments, it would take many years before any convictions were handed down.

In the best-case scenario for Israel, the Palestinians’ intended complaints against Israeli officials will be little more than a nuisance, causing some bad press.

And will the ICC advance the establishment of an independent and sovereign Palestine, presumably Abbas’s prime goal? Not a bit.

Abbas can’t sue Israel

Contrary to what some headlines have suggested, Abbas will not be able to sue Israel at the ICC. It’s a criminal court, which means that only the prosecutor, Fatou Bensouda, can decide who gets indicted.

What the Palestinians can do is submit complaints to the court — which they have actually been doing for years. To date, the court has not had jurisdiction over the territory on which the alleged crimes occurred.

Chief Prosecutor at the International Criminal Court Fatou Bensouda. (photo credit: Wikimedia Commons ASA 3.0/Fatou Bensouda)
Chief Prosecutor at the ICC Fatou Bensouda. (photo credit: Wikimedia Commons ASA 3.0/Fatou Bensouda)

By signing the Rome Statute, which governs the court, the Palestinians on Wednesday took the first step toward membership in the court, though it takes two months before the treaty enters into force. If they are accepted as members — and it is not certain that they will — “Palestine” can start formally lodging complaints against Israel that will be considered seriously by the court.

Before the prosecutor looks at the complaints and decides whether to launch a preliminary examination, she will have to establish that the Palestinians indeed qualify for membership in the court. Only states can join the court, and experts disagree on the question of whether “Palestine” is enough of a real state to be eligible. In order to determine whether “Palestine” is indeed entitled to accede to the court, Bensouda will likely launch a process of consultations, over the course of which she might seek to deliberate the question with other countries and international bodies.

Some experts are convinced that the ICC will immediately accept the Palestinians’ application, since it has already hinted that it would consider Palestine a state if the United Nations General Assembly recognized it. On November 29, 2012, the GA overwhelmingly voted in favor of granting the “State of Palestine” nonmember state status. This suggests that the ICC will also treat the PA similarly.

Once it is established that Palestine is indeed a member of the court, and once it files complaints against Israelis, the prosecutor can decide whether to launch a preliminary examination into the accusations. She is by no means obligated to do that, and might decide not to touch the issue at all.

It is quite likely that Bensouda would in fact open a preliminary examination, experts said. But even if she did, a full investigation would still be far from imminent.

“I assume that they will start a preliminary examination,” said Robbie Sabel, a professor of international law at the Hebrew University of Jerusalem. “But the prosecution will soon find that it’s an entirely political issue, and unless Israel goes mad and decides to start committing mass atrocities, which it won’t, the prosecutor will be reluctant to proceed with an actual criminal investigation.”

In order to determine whether there is a “reasonable basis to proceed” from the preliminary examination to a full-fledged investigation, the prosecutor ponders several considerations, among them:

  • jurisdiction (temporal, material, and either territorial or personal jurisdiction);
  • admissibility (complementarity and gravity); and
  • the interests of justice.

Even the question of jurisdiction will present many hurdles to the Palestinian gambit. For one, the ICC generally only has jurisdiction over crimes committed on the territory of a member state from the moment it joined the court. In other words, the Palestinians would ordinarily not be able to complain in The Hague about this summer’s Operation Protective Edge, because at the time Palestine was not a member of the court. The ICC would only have jurisdiction over past events if the Palestinians explicitly included them when they ratified the Rome Statute. At this moment it is unclear what exactly Abbas signed Wednesday in Ramallah.

Complaints about Gaza are further complicated, because the ICC might find that Hamas — as opposed to the “State of Palestine” — is in control there and that the court therefore has no jurisdiction in the Strip.

Palestinian Authority President Mahmoud Abbas  waves to the crowd during a gathering to celebrate the 50th anniversary of the start of the Fatah movement, in the West Bank city of Ramallah on December 31, 2014 (photo credit: AFP/ Abbas Momani)
Palestinian Authority President Mahmoud Abbas waves to the crowd during a gathering to celebrate the 50th anniversary of the start of the Fatah movement, in the West Bank city of Ramallah on December 31, 2014 (photo credit: AFP/ Abbas Momani)

It will also be difficult to determine the ICC’s territorial jurisdiction. Since Israel is not a member of the court, any event occurring on Israeli soil is out of bounds for the court. What should the court do with alleged crimes committed in East Jerusalem, or in Area C of the West Bank, where Israel exercises control?

Determining jurisdiction in such cases means wading into the highly politicized question of where the border lies between Israel and Palestine. The prosecutor might not want to go near this matter, as it has more to do with decades-old core issues of the Israeli-Palestinian conflict than with the prosecution of war criminals.

The court’s requirement that cases be “most serious” could also thwart the Palestinian goal of seeing Israeli officials in the dock for war crimes. “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole,” the Rome Statute states in Article 5. According to the statute’s preamble, the ICC was founded to prosecute people for “unimaginable atrocities that deeply shock the conscience of humanity.” It may be doubtful that the court will find Israel’s actions in the West Bank, and even in Gaza, relevant to that description.

“The settlements are problematic, but are they an ‘unimaginable atrocity’? Clearly not,” said Sabel, the Hebrew University expert. “Even if people were killed, the ICC deals with mass murder and genocide. They will probably decide not to deal with this matter.”

The Palestinians are expected to complain about Israel’s “war crime” of building settlements in East Jerusalem and West Bank. According to their interpretation of the Geneva Conventions, transferring Israeli citizens into occupied territories constitutes a war crime.

The settlers themselves are not the ones transferring populations; the Palestinians would thus have to find the people responsible for the settlement enterprise — Israeli leaders. “Putting them to trial means getting involved in a political issue, and I suspect the prosecutor won’t pursue it,” Sabel said. “But you never know.”

ICC precedent

Recalling the 2004 advisory opinion of the International Court of Justice (which determined that Israel’s West Bank security barrier is illegal), many Israelis are wary of possible prosecution at the ICC. But if precedent is any indication, the court has proved that it takes its mission seriously and does not seek to engage in frivolous Israel bashing.

In March 2012, it refused to look into more than 400 complaints over alleged Israeli crimes, arguing that “Palestine” is not a state and that the court lacks jurisdiction there. In November 2014, after a preliminary examination into Israel’s 2010 raid on the Gaza-bound Mavi Marmara that left nine Turkish citizens dead, Bensouda stated that despite “reasonable” indications that Israeli troops committed war crimes, the incident was of insufficient gravity to justify further action by the ICC.

That is not to say that Israel should dismiss the Palestinian threat to take Israel to the ICC. Although it is a long shot and might take years, indictments and eventual convictions against Israelis are not impossible.

And even if the accusations lead to nothing more than a preliminary examination, the Palestinian are sure to make use of this for propaganda purposes. Israel is already unpopular in many parts of the world and would prefer to avoid further bad headlines. But excessive worry may be unnecessary. Having to deal with complaints at the ICC is an unwanted headache, but one Israel might find itself able to live with.

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