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Can the International Criminal Court investigate the violence in Gaza?

- May 17, 2018
People run through tear gas May 15 carrying an injured woman at the border fence with Israel in Gaza City, Gaza. (Spencer Platt/Getty Images)

As the United States moved its embassy from Tel Aviv to Jerusalem, the Israeli government was ecstatic. In contrast, Palestinians were irate, organizing public demonstrations throughout the spring. When the embassy opened its doors May 14, Israeli soldiers fired live ammunition into large crowds of mostly unarmed demonstrators, some of whom were attempting to cross the border.

The result was at least 60 deaths — the deadliest day in Gaza since the 2014 Israeli-Gaza war.

What justice can be done for the victims of violence wrought by both Palestinian militants and Israeli forces on Palestinian civilians? One avenue would be the International Criminal Court (ICC), which has jurisdiction in the Palestinian territories. This week’s events probably make an investigation by the ICC inevitable. But such a probe would not be without its challenges.

The ICC in the Palestinian territories

In response to the 2014 war in Gaza and a subsequent request from the government of the Palestinian territories, the ICC opened a preliminary examination into alleged war crimes and crimes against humanity perpetrated on Palestinian territory. The most recent unrest in Gaza will only add fuel to the fire — and add pressure on ICC Prosecutor Fatou Bensouda to open an official investigation into those responsible for atrocities.

Despite some disagreement from a dwindling number of states who do not recognize the Palestinian territories as a state — and therefore do not believe that Palestinians could request an ICC investigation into alleged crimes committed in Gaza — the ICC has both accepted the Palestinian territories as a state-party to the court and opened a preliminary examination into violence committed in Gaza since 13 June 2014.

It is important to stress that any investigation into the Palestinian territories would rightly require the ICC to investigate all sides of the conflict. While often and purposefully framed as such, the court cannot be used by the Palestinians against Israel. The indiscriminate shooting of rockets from Gaza into Israeli communities and other violent activities by Hamas would also be investigated and prosecuted.

Before an official investigation can be launched, however, the preliminary examination must be concluded. Doing so requires the ICC prosecutor to consider numerous factors, including whether: crimes under the court’s jurisdiction have been committed; relevant states are investigating and prosecuting the crimes themselves; the alleged crimes are sufficiently grave to merit investigation from the ICC; and if an investigation would be in the “interests of justice.”

The Palestinian territories have been under preliminary examination for more than three years. Prosecutor Bensouda insists that she cannot provide a time frame for when the examination will conclude. This week’s violence in Gaza — including the alleged killing of an 8-month-old child and the death of a disabled man in a wheelchair wielding a slingshot — should change her calculus.

A challenge to the ICC prosecutor

This week’s violence also poses a challenge to the prosecutor’s ability to effectively deter atrocities — something Bensouda said is a “crucial function” of her office. In reaction to the deaths of Palestinian protesters in March, Bensouda issued a statement, warning that “[a]ny person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She issued a similar response to the most recent violence in Gaza.

Such statements are an attempt by Bensouda to leverage the threat of prosecution in order to deter additional violence and atrocities in Gaza. This has clearly not worked. The prosecutor’s statement was unsuccessful at affecting Israeli and Palestinian factions responsible for violence in Gaza. But it does put additional pressure on her office. To retain legitimacy, authority, and the ability to potentially deter atrocities, the ICC’s threats cannot be empty.

Uneven political terrain

There is immense pressure for the ICC prosecutor to open an investigation into violence in the Palestinian territories. But it won’t be easy. The Israeli government is unlikely to cooperate with an investigation. In 2015, then-Foreign Minister Avigdor Lieberman said that Israel would seek to “dismantle this court, a body that represents hypocrisy and gives terror a tailwind.” Such incendiary rhetoric has quieted in recent years, but would likely escalate again if the ICC prosecutor moved to open an investigation into Israel’s actions.

Such a hostile reaction is only more probable given that the United States is likely to not only vociferously defend the Netanyahu government but also to seek satisfaction in marginalizing the ICC. The most severe of ICC critics, John Bolton, is now President Trump’s national security adviser. He once described informing the U.N. secretary general that Washington was “unsigning” the Rome Statute of the ICC as the “happiest moment” in his State Department career.

Other states — including those generally committed to the ICC — have voiced vehement opposition to an ICC investigation into the Palestinian territories. Even Canada, which is now governed by an internationalist and generally pro-global justice government, remains ambivalent about the ICC’s role or whether accountability for the deaths of civilians should be pursued. Further, regional allies of the Palestinians as well organizations such as the Arab League have historically been silent on Palestinians’ plea for ICC justice, although that may be changing now.

In short, while an investigation may be legally warranted, it will have to proceed on difficult and uneven political terrain.

The prosecutor finds herself in the unenviable position of having to make a decision with potentially significant implications for all parties, including the court itself. But the continued killing of protesters, civilians and children in the Palestinian territories and Israel leaves the ICC prosecutor with little choice but to finally decide whether a full investigation and the promise of accountability are warranted.

The ICC may not open an investigation into the Palestinian territories today— or even this year. But the civilian toll in Gaza and the lack of accountability for alleged crimes in either Israeli and Palestinian courts means that it will only be a matter of time. The court cannot keep Palestinians in the purgatory of a preliminary examination forever.

When the time comes, will the international community finally step up and support justice in the territories?

Mark Kersten is a fellow and lecturer at the Munk School of Global Affairs, University of Toronto, and the author of the blog Justice in Conflict.