Palestine and the ICC: A Piece of Justice or a Peace for Justice?

Like Palestine joins the ICC
Wednesday, April 1, 2015 - 08:45

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

Mark Kersten

Thanks very much for the comments. It's important to keep this conversation and debate going.

I think there is a disjunction between those who see a division between politics and justice and those who don't. In my view, believing that the ICC is free of politics is neither true nor desirable. The Court functions in a political context and its promise is of better politics - politics where individuals are held accountable for international crimes. While it may be desirable for the ICC to be "kept away from" some forms of politics, I don't see - at this juncture - how that can be. I agree with many others scholars of the ICC who believe that denying the politics of international criminal justice and the ICC can do more damage than good. And there is no hiding from the fact that Article 16 allows the United Nations Security Council to defer an ICC investigation or prosecution for twelve months. It is part of the Rome Statute of the ICC and is ultimately a very political decision. Moreover, how can one explain Palestine's accession to the Court without considering the politics of the Palestinian Authority?

To be clear about one thing, I am absolutely not arguing that justice should be traded for peace. An Article 16 deferral is being considered by the US government as a measure to revive the Middle East Peace Process. Some may choose to ignore this political issue in the hopes that justice will be pursued without political interference / prerogatives. The intent of this article was to consider how Israel and the Palestinian Authority might be inclined to support such a measure but that, in the end, we ignore the voices of those in whose name justice is actually pursued - the victims and survivors of atrocities.

Thursday, April 2, 2015 - 09:47
Jan van der Mei

I agree with the 3 comments. This article is full of fallacies and very vague. Yes, going back to the UN Security Council and following the orders of the U.S. administration will bring this legal and legitimate Palestinian cause back to square one. Move forward and let international justice be administrated.

Thursday, April 2, 2015 - 01:53
Justice Hub
Justice Hub

Thank you, HB, for pointing this out. We have modified the article.

Wednesday, April 1, 2015 - 20:20

Know your UNSC rules. There was no American veto in December. The required nine votes were not obtained, so veto was not necessary.

Wednesday, April 1, 2015 - 20:14

The comment of The Hague University is very nescecary to understand the justice hub story. I totally agree with him/her. The version of justice hub is extremely difficult and incoherent, sorry to say. The picture of the story is very strong and my compliments for the cartoonist. It's a pity that the brilliant cartoon does not fit with the unreadable article, that will lead the reader into endless circles of ambiguity.

Wednesday, April 1, 2015 - 19:37
The Hague University

Very lengthy article, it revolved around hypothetical propositions which made the article utterly vague. The writer elaborated on speculations and has avoided the essential merits of the PA legal accession to the ICC. This gives the impression that the U.S. which -is not party to the Rome Statute-has the strongest hand over the ICC; such statement is utterly repugnant as it will undermine the Court's integrity, and make it as a silly tool in the hand of the U.S. The path of justice through the ICC has nothing to do with the path towards peace.

The Palestinian accession to the ICC will help to push Israel to accept the fact that it is illegally occupying Palestinian and other Arab Territories, and it is time now after 50 years of occupation to pay the price of violating international law and not implementing related security council resolutions.

The writer has confirmed the paradox which was reflected in his article! In international communities' eyes, no justice without peace and no peace can be achieved without justice, he tried to convince the reader that justice could be traded for peace; which is utterly unrealistic. The writer avoided the very clear fact that Palestinians have fed up after 50 years of illegal Israeli occupation which never been resolved through either negotiations or by the UN security council resolutions,for example, Res. 242 and other resolutions have never been implemented by Israel.

Justice must be prevaild, and the ICC must be kept away from the filth of politics, and the biased academic opinions. Otherwise, we are going to witness a severe collapse of the ICC which represents an integral part of the international justice system.

Wednesday, April 1, 2015 - 13:39