Palestine and the ICC: A Piece of Justice or a Peace for Justice?
By Mark Kersten
Today, Palestine officially becomes the 123rd member state of the International Criminal Court (ICC). The expectation amongst many is that the victims and survivors of crimes perpetrated in Palestine since the beginning of last July will finally see some justice delivered. But elevated hopes for accountability in Palestine may soon be dashed if reports of a plan to trade ICC justice for reviving the peace process between Palestine and Israel are true.
It is no secret that the administration of US President Barack Obama is disgruntled with the Israeli leadership and ‘wishing it wasn’t so’ in the wake of Benjamin Netanyahu’s surprising electoral victory two weeks ago. The White House was particularly irked by remarks by the Israeli prime minister that Palestine would never be recognised as a state under his tenure. While Netanyahu’s comments may have been intended to shore up the radical right-wing of Israel’s political spectrum, it also hammered a nail in the current peace process, dependent as it is on the ultimate creation and recognition of a two-state solution.
In response to Netanyahu’s re-election and his brazen remarks, the Obama administration has threatened to further internationalise the peace process. This would entail doing something the US has been very reluctant to do: give the United Nations Security Council a robust role in peace negotiations between Israel and Palestine. According to John Hudson and Colum Lynch (Foreign Policy, 18 March 2015), part of this strategy could see the US push for a delay of the ICC’s intervention in exchange for reviving the moribund Middle East peace process:
The deliberations over the future of the U.S. diplomatic efforts are playing out just weeks before the Palestinians are scheduled to join the International Criminal Court, a move that is certain to heighten diplomatic tensions between Israel and the Palestinians…
Ilan Goldenberg, a former member of the Obama administration’s Mideast peace team, told FP that Washington might be inclined to support a Security Council resolution backing a two-state solution as an alternative to the Palestinian effort to hold Israel accountable at the ICC…
Under this scenario, the United States would seek guarantees from the international community to hold off on ICC activity in exchange for a Security Council resolution outlining international standards for a final peace agreement between the Israelis and Palestinians.
In other words, in its re-evaluation of its approach to the peace negotiations between Israel and Palestine, the US is considering a request to have the UN Security Council pass a resolution invoking Article 16 of the Rome Statute. Article 16 stipulates that the Council can defer an ICC investigation or prosecution for at least twelve months if the ICC’s actions are deemed to be a threat to international peace and security. Simultaneously, and in exchange for - at least temporarily - letting Israel off the hook at the ICC, the US would seek to prod the Security Council into taking an active role in pushing negotiations towards a comprehensive peace agreement forward.
Even if this is empty rhetoric aimed at pressuring Netanyahu back to the negotiation table, the fact that the US is privately considering such a move is telling. Firstly, Washington has been steadfast against giving the Security Council any real leverage over the Israel-Palestine peace process. Just a few months ago, the US voted against a Jordanian resolution calling for peace talks to be finalised within twelve months and for a two-state solution to be realised by 2017. That ensured that the resolution did not pass. Secondly, despite its historical ambivalence and at times outright hostility towards the ICC, the US has been loath to support previous deferrals of the Court’s investigations and prosecutions - despite calls to do so in response to the ICC’s interventions in Darfur, Libya, and Kenya.
So who would ultimately benefit from such a peace-for-justice trade?
It remains unclear how Israel truly perceives the threat of the ICC. It may be, as David Bosco has written, that “Israeli leaders might prefer to call the prosecutor’s bluff, calculating either that [ICC Prosecutor Fatou Bensouda] won’t pursue high-level indictments or that Israel can effectively discredit the ICC process and endure the diplomatic damage”. However, if we’re to believe the official hype, Israel is petrified at the notion of the ICC investigating the conduct of its officials and military forces in Palestine and, in particular, during its military operations in Gaza last summer. A deferral would ease the pressure and allow Netanyahu’s government to identify means to circumvent the ICC by, for example, finding means to demonstrate that it was active, able, and willing to genuinely investigate and prosecute alleged crimes committed by its citizens in Palestine.
A deferral may also be the interests of the Palestinian Authority (PA). If the US, the UK and France voted in favour of a deferral they would, implicitly, be recognising Palestinian statehood. Moreover, it is clear that, at best, the PA holds a lukewarm attitude towards the ICC involvement in Palestine. A purposefully poorly kept secret is that the PA has always toyed with the idea of an ICC intervention rather than full-heartedly committed itself to the Court. There are ongoing doubts that President Mahmoud Abbas is sincerely in favour of an ICC intervention. Instead, many believe Abbas felt compelled to sign the Rome Statute after repeatedly threatening to do so and receiving no concessions in return. Moreover, just weeks before the PA signed the Rome Statute in December 2014, its ambassador to The Netherlands went so far as to declare that going to the ICC represented a “final divorce: one way move, no way back.” If concessions towards a two-state solution and recognition of Palestinian statehood were made, it seems clear the PA would get on board.
The ICC and the Middle East are the domains of high politics and political interests. But the most important and still unanswered question is this: how would Palestinians feel about trading the pursuit of justice for the prospect of peace? Ultimately, the future of peace and justice in Palestine should be up to them.
*Mark Kersten is the creator of Justice in Conflict.
Cartoon: Dr. Meddy/Cartoon Movement