By Mattia Cacciatori
After the United Nations Security Council voted against a resolution demanding an end to the Israeli occupation of the Palestinian territories within three years in late December 2014, Palestine has signed on to 20 international agreements, including the Rome Statute of the International Criminal Court (ICC). This unprecedented turn in Palestinian foreign policy carries with it many implications on an international scale. Specifically it could potentially grant the ICC the jurisdiction it needs to prosecute crimes committed both by Israeli and Palestinian forces in Palestine.
Palestine already tried to approach the ICC in 2009, when the Palestinian Authority lodged a declaration with the ICC recognising the jurisdiction of the Court, in order to have the Court investigate events that occurred on Palestinian soil since the creation of the Court. At the time, the ICC declared that due to the contested status of Palestine, it was not possible for the Court to proceed with the investigation. In November 2012, the UN General Assembly ‘upgraded’ the international status of Palestine from mere ‘observer’ to a ‘non-member state‘, de facto improving the likelihood of prosecution by the Court. Therefore, the possibility that the ICC would reject the Palestinian plead for inclusion on issues of statehood is incredibly limited.
The ratification of the Rome Statute means that Palestine and Israel will become subject to investigations of war crimes, crimes against humanity and genocide. However, for the normative principle of non-retroactivity of laws, the Court will theoretically be provided with a temporal jurisdiction beginning in early April 2015, leaving outside Israeli operations in Gaza last summer as well as the targeting of civilians from civilian zones by Palestinian forces until the Rome Statute is activated.
This jurisdictional problem would greatly undermine the impact that the Court is likely to have on the Arab-Israeli situation. However, the Palestinian authorities have the right to submit a declaration under article 12(3) of the Rome Statute, generating jurisdiction on events that occurred prior the ratification of the Rome Statute. As David Bosco points out, there is also an historical precedent. The government of Uganda took a similar approach, authorizing the Court to investigate situations months before it ratified the Rome Statute. In fact, there are important signs that point in this direction. As Amira Haas reported, “Palestinian President Mahmoud Abbas signed a declaration on Thursday asking the International Criminal Court to investigate suspicions of war crimes ‘committed in Palestine’ since June 13”. Israeli Prime Minister Benjamin Netanyahu has already commented on this, judging this bid hypocritical and expecting it to fail.
However, signing the Rome Statute is not enough to trigger a prosecution. The case has either to be referred by one of the members of the Court or the prosecutor has to intervene proprio motu. With the memory of Kenyan President Kenyatta’s prosecution still vivid in mind, it seems unlikely that the Court will risk another proprio motu intervention at the moment, given the extreme complexity of the Arab-Israeli dispute. Then, it would be up to the Palestinian authorities to refer the case to The Hague, understanding that, by the nature of the Court, referring a situation is not like issuing a lawsuit. The ICC is not a civil court. Therefore once an investigation is triggered, it is likely to prosecute equally Palestinian forces, alleged targetting civilians from civilian zones, and Israel, most notably for the events in Gaza this summer or for their settlements on Palestinian soil.
A contested field of debate concerns the likelihood of the ICC prosecuting Israel for its settlements in Palestine, which date back to the 1967’s Six-Day-War. If it is almost beyond doubt that there is a strong normative basis to consider the Israeli settlements in West Bank, Golan Heights, and East Jerusalem illegal, it remains extremely unlikely that the ICC would have the capability to prosecute Israel for such settlements. The main cause of controversy lies in the Rome Statute’s principle of complementarity. This postulates that the Court will step into a situation only if an unwillingness or uncapability to carry out prosecutions is clearly demonstrated. To prove that the Israeli judiciary system hasn’t acted in accordance with international principles of prosecution will be extremely difficult.
The ICC is not quick in proceeding with investigations. Even if the Office of the Prosecutor agrees that the crimes committed in Palestine are grave enough and that they are not being adequately investigated by the Israeli judiciary system, it will take years for the investigation to get started. Therefore, in the short run, there is no reason to believe that the work of the ICC is going to impact the Arab-Israeli conflict significantly from a juridical point of view.
On the international level, both Israel and the United States have made a great fuss about the Palestine pledge. Israel responded to the signing of the Rome Statute by withholding Palestinian tax revenues. This is nothing new. It happened in 2008 and again in 2011, in apparent retaliation for the Palestinians’ bid for full membership of the UN.
The US Congress, for its part, is considering a bill introduced by Kentucky Republican Senator Rand Paul, which would cut aid to Palestine until the Palestinian Authority withdraws its request. Despite formally condemning the financial sanctions that Israel is imposing on Palestine, US State Department spokesman Jen Psaki stated that the US doesn’t believe that Palestine is going to be accepted as a member of the Court.
Mattia Cacciatori is the assistant editor of “Eyes on the ICC”.