The Big Test – Palestine becomes ICC’s new member

A modest ceremony was held at the International Criminal Court (ICC) in The Hague on the 1st of April to welcome its new and 123rd member: Palestine. The vice-president of the court, judge Kuniko Ozaki, said Palestine acquires ‘all the rights as well as responsibilities that come with being a State Party.’ She added: ‘These are substantive commitments, which cannot be taken lightly.’ From now not only Israelis, but Palestinians as well can be prosecuted by the ICC for international crimes – genocide, crimes against humanity and war crimes.

This historic step has led to angry reactions from Israel and the USA, both countries are no party to the ICC. Since the start of 2015 Israel stopped transferring tax revenues to the Palestinians, which amount to some 400 million dollar (last week it was announced the money tap would be reopened). Such reactions are especially painful since the preamble of the Rome Statute, the legal document containing the main rules of the court, refers to the horrors of the twentieth century during which ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.’ A phrase that also refers to the Holocaust.

Human Rights Watch explains in a press release that US President Barack Obama signed into law an act that would cut off aid if the Palestine government would support the ICC in investigating Israeli nationals for crimes against Palestinians. Human rights organisations point out – rightly so – that Palestine has the same right to join the ICC as the other 122 countries who have done so far – including my own, The Netherlands.

Since the ICC will only have jurisdiction over international crimes as of 1 April, the explosion of violence of last summer would formally not be included. In a special declaration the Palestinian Autority has therefore mandated the court to investigate crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014’ when Gaza was bombed by the Israeli army, while Palestinian militants fired rockets on to Israel. In a few weeks’ time 2100 Palestine (mainly civilians) and over seventy Israeli’s (mainly military) were killed. Television camera’s recorded the massive destruction in Gaza.The rules prescribe that after such a declaration the Office of the Prosecution (OTP) has to conduct a preliminary examination to see whether or not the situation meets the criteria to start a full criminal investigation.

In the meantime the Palestinian government has announced that the settlements could be a case as well. Under the ICC rules it is a war crime when an occupying force like Israel is transferring parts of its own population to occupied territory.

The Palestinian accession to the ICC is a big test for all parties involved. The court only comes into action when states are not able or willing to investigate cases themselves. Israel and Palestine can still take their own responsibility. The chances are small this would result in effective prosecutions, but if this happens many at the court will sigh with relief. Not only because the ICC is in favour of national proceedings, but also because of the sensitivity of this file, which could further harm the court. If the ICC would decide to open a Palestine case and out of protest countries would refuse to cooperate with the court, this would badly hamper the functioning of the institution. On the other hand such a case could result into credit for the ICC as well. So far the court is investigating in eight African countries. The 36 suspects are all Africans – militia leaders, government leaders, officials, two lawyers and journalists charged with international crimes and offenses against the administration of justice. A Palestine case would divert the criticism in official African circles that the ‘neo-colonial’ court is targeting Africans.

The matter can also become a test for the UN Security Council. There are signs that the USA is ready to invoke article 16 of the Rome Statute: deferral of investigation or prosecution in situations of peace or security. This article says that ‘no investigation or prosecution’ may be started in such a specific case for a period of 12 months after the Security Council has requested the Court to that effect.

In exchange for a deferral political concessions like a two-state solution could be proposed. But would countries like France and the UK – both member of the ICC and UN Security Council – be okay with exchanging justice  for an uncertain peace and vote for postponing a Palestine case?

As such it is remarkable that Israel seems to fear the court, which hasn’t achieved much result. The ICC, that started operating in 2002, has convicted two Congolese militia leaders. The cases against seven suspects have collapsed. The most dramatic decision fell on 5th December 2014 when prosecutor Fatou Bensouda was forced to withdraw charges against the Kenyan president Uhuru Kenyatta due to lack of evidence. She lost the case because her office had trusted witnesses who lied, while other witnesses withdrew after having been intimidated and threatened and the Kenyan state obstructed investigations.

Even if the ICC would open a Palestine investigation, it is not certain whether suspects would ever be sitting in the dock. There are internal obstacles – the OTP has been marred with problems – and external obstacles – without state cooperation the ICC can’t function. How much access would ICC investigators be granted by national authorities to gather evidence against potential Israeli (and Palestinian) suspects? How likely is it that defendants will be handed over to the court. Similar problems have previously blocked and even ruined cases. The future will tell for which party – the states involved, the international community and the ICC – the Palestine Test will be the heaviest.


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