Four myths about Palestine, Israel and the ICC

Like Palestine decides to join the ICC
Tuesday, January 6, 2015 - 13:57

Since the end of 2014, the world’s media has been dominated by the discussion arising from Palestine’s decision to sign up to the International Criminal Court. But, from some of the commentary, it’s clear that there’s still a lot of confusion. Janet Anderson picks her way through the myths.

Myth 1: Palestine can bring a case against Israeli officials at the ICC.

Not possible. The court has a prosecutor. She chooses what can be investigated and what will be brought to the judges to see if they agree there is a case.

Fatou Bensouda’s decisions are ruled, in part, by the Rome Statute, which is why she was clear that the ICC had no jurisdiction unless or until the Palestinians decided to join up. 

Now that Palestine is a member of the court – or will be in a couple of months, now that it has made the application – it can refer a situation to the court.

By signing up and saying that its ratification applies back to June 13 2014, Palestine has made it clear that it wants the events of last year’s war in Gaza investigated. According to author David Bosco this should trigger a quick preliminary examination. But , as he says, that doesn’t mean there will be a formal investigation.

Myth 2: The ICC is poised to launch a case against Israeli officials for war crimes allegedly committed during the Gaza War in 2014.

Not even close.  Academic Alex Whiting used to coordinate the prosecutions at the court. Here he describes the kind of debates going on in the prosecutor’s office in The Hague. There are many, many legal steps to be gone through. We covered some of them here: the issues of defining what territory Palestine really controls, and whether there are investigations ongoing in Israel that the prosecutor would find satisfactory. And legal bloggers have covered them in depth. As many of the experts mention, the issue of Israeli settlements in the West Bank is a potential case at the ICC. But that’s something that has never been brought before the court before, so there are huge legal questions about how that would work.

Myth 3: Only Israelis can be charged at the ICC.

Much of the debate in the media has been about Israeli officials and whether they can be brought to the court. But, in fact, by signing up to the Rome statute, Palestinian President Mahmoud Abbas has opened the possibility of prosecutions of Palestinians, who may also be charged with war crimes.

Myth 4: The ICC is suddenly back in the game.

Last month, when Bensouda withdrew her case against Kenyan President Uhuru Kenyatta and then said she would hibernate the case against Sudanese president Omar al Bashir, there were many commentaries on the shakiness and potential demise of the ICC. 

Now suddenly the court has become relevant again.

In fact the situation remains the same. The ICC prosecutor faces huge problems of resources and strategic decision-making to try to bring successful cases to the court. And without cooperation from states – as shown in the Kenya case – or the Security Council – as shown in the Bashir case – it cannot operate. With no police force of its own, the ICC will struggle to put any officials from either Israel or Palestine on trial. 

HHS student

Never undermine the strong and sharpe teeth of the ICC. Even before the issue of the Palestinians signing up to the ICC, top Israeli officials (including Tzipi Livni) where about to be arrested in the UK under the universal jurisdiction for the crimes they committed against the Palestinians (war crimes and crimes against humanity) some of those 'war criminals' did not even dare to leave the civil El Al Israeli aeroplane at Heathrow, and they returned in the same flight back to Israel.

For the time being, it is enough that the ICC will issue arrest warrants. It means that Israeli top officials, perhaps including the Israeli prime minister, will never have the courage to step on the soil of any EU member states which are members to the ICC. Israel must learn the lesson that the time of personal and functional immunity has ceased to exist!

However, the arrest warrants which might be also issued against Hamas Leaders will not affect them since the EU does not recognize Hamas and there is no diplomatic relations with it, and above all, they do not travel to the EU. If Israel had respected the UN resolutions and withdrawn from the occupied West Bank and cleared its illegal settlements there, it would not have faced such destiny.

Wednesday, January 7, 2015 - 00:15