On July 6, Palestinian Authority President Mahmoud Abbas issued a stern warning: “Those who fear courts should refrain from committing crimes.” The intended target of this warning was obvious: Israel, which is in the midst of yet another military offensive in Gaza. The meaning of his statement was also clear: Palestine will not hesitate to ask the International Criminal Court (ICC) to intervene. Despite this rhetoric, international accountability for crimes in Palestine and Israel is as unlikely today as it has ever been. None of the key actors – the Palestinian Authority, Israel, Western states or the ICC itself – is able or willing to achieve justice for the victims and survivors of this intractable war.
Palestine’s interest in an ICC intervention is nothing new. The government initially referred Palestine to the ICC in January 2009. More than three years later, then-Chief Prosecutor Luis Moreno-Ocampo decided that the court could not investigate alleged crimes because it was unclear whether Palestine was a state – and therefore whether it could legally refer itself to the ICC. Whilst the majority of human rights advocates agreed that the court was right in ruling that it was not the appropriate venue to decide on Palestinian statehood, many were perplexed and even insulted that the prosecutor took so long to issue a handful of sentences on a subject with such legal and political gravitas.
In response to the prosecutor’s decision not to open an investigation, Palestine went on a statehood shopping spree, seeking ascension to various U.N. agencies. The General Assembly overwhelmingly voted to recognize Palestine as a state and granted it “Non-Member Observer State” status. The implication was clear: With recognized statehood Palestine could join the ICC and re-refer itself to the court.
Palestine’s efforts have been met with a wall of political obstruction. Western powers have attempted to coerce the Palestinian Authority into ceasing its pursuit of full statehood and a possible referral to the ICC. Much fuss has been made that seeking an ICC intervention would undermine peace talks brokered by U.S. Secretary of State John Kerry. During the negotiations, one U.S. officials suggested that so long as talks were ongoing, there was little threat of an ICC intervention. More recently, U.S. Ambassador to the United Nations Samantha Power was unequivocal, stating that the United States was “absolutely adamant” that Palestine should not join the ICC as the court “is something that really poses a profound threat to Israel.”
But an ICC intervention also poses a real threat to certain Palestinian groups. It is a common misconception that Palestinian authorities can “press charges” or refer Israel to the ICC for alleged crimes committed in their protracted, decades-long war. In reality, Palestine can only refer itself to the court and, if it did so, ICC investigators would be restricted to investigating crimes perpetrated on Palestinian territory – a territory that is, for purposes of criminal investigation, still unclear. Any alleged crimes perpetrated in Israel – including the construction of illegal settlements – would be inadmissible.
Indeed, those pressing for a referral of the ICC should be careful what they wish for. Some have suggested that there is a strong case to be made that Palestinian groups like Hamas and Fatah are responsible for international crimes under the Rome Statute and that the seemingly indiscriminate shelling of civilian areas by Palestinian militants in Israel would be prioritized for investigation by the prosecutor. As SOAS criminal law professor Kevin Jon Heller argues: It would be “much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory.”
Nevertheless, the very threat of requesting an ICC intervention has been useful to the Palestinian Authority. In this exceptionally asymmetric conflict, Abbas has been left with few means of political leverage. The threat of an ICC intervention may yield certain benefits for the Palestinian Authority – especially if Israel and the “West” are sufficiently afraid of it, which they certainly appear to be. Moreover, being seen as the unjustly targeted party whose recourse to international accountability is consistently blocked by greater powers and aggressors is undoubtedly rich political capital.
Still, Palestine seems destined to remain mired in what most of the international community sadly sees as a tolerable level of misery, impunity and violence. International criminal justice simply won’t reach that far – or won’t be allowed to. Which returns us to the ICC.
As David Bosco, professor at American University and author of “Rough Justice,” has demonstrated, the court has vested institutional and political interests in assuring that it creates and retains positive relations with major powers. If it does not, its ability to build successful cases and have its arrest warrants enforced will be undermined. Over the past few years, the ICC’s relationship with the United States has been transformed dramatically. Washington, which once spent enormous capital on undermining the court, now engages with the ICC and sees it as a potentially useful institution. This development is something proponents of the court are very proud of and are eager to protect. Intervening in Palestine would throw a wrench into those works. Former U.S. ambassador for war crimes David Scheffer was forthright at a 2012 conference in stating that the question of Palestinian statehood and an ICC investigation stands, amongst other things, in the way of the United States joining the court as a member state.
Even Moreno-Ocampo has sought to dissuade Palestine from joining the ICC and requesting an intervention. On a visit to Jerusalem, he warned Palestine that Hamas could come under the court’s microscope and encouraged Israel and Palestine to identify “creative” solutions to their problem.
That a former chief prosecutor of the ICC would advise states to circumvent international criminal justice is staggering – and undoubtedly frustrating for his successors. As international law professor William Schabas points out, other conflict contexts – namely those in Africa – haven’t received the same advice.
There may be a host of political and legal obstacles to an ICC intervention in Palestine. But the dramatic costs that key actors insist would arise with an ICC intervention are unconvincing and none justify a defeatist position or declaring: “It’s not even worth trying.”
The ICC is no panacea. It wouldn’t produce peace in Palestine. Still, if the court could add some degree of accountability to the mix, it would be worth it. And if international justice is worth its name and the international community’s support for justice is to be more than hollow rhetoric, the ICC will soon extend its reach to Palestine.
Mark Kersten is a researcher at the London School of Economics and author of the blog Justice in Conflict.