Palestine, Israel and the ICC (by CP)

vs.

vs.

Basic facts and events so far

• On January 2, 2015 Palestine deposited its “instrument of accession” with the ICC pursuant to Article 12, recognising the court’s jurisdiction to investigate war crimes committed since June 13, 2014, in Gaza and the West Bank.
• Palestinian Accession becomes final on April 1, 2015. Nothing is going to happen before that date.
  
• Israel is not member to the ICC statute.
• The ICC’s chief prosecutor will open a “preliminary examination into the situation in Palestine.”
• A preliminary investigation is not a prosecution. Yet. It is in essence fact finding, to determine whether a prosecution is warranted or not.
  
• The preliminary investigation will investigate crimes committed by both sides, including Hamas.
• The chief prosecutor stated that jurisdiction could reach back to Nov. 29, 2012, the date that the U.N. General Assembly adopted Resolution 67/19

Prospects

• If it comes to an investigation, since Palestinian war crimes are probably factually and legally among the easiest to prove, they actually may stand the greatest chance of ICC prosecution.
  
• The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when national courts are unwilling or unable to prosecute criminals.
• Israel arguably does have a working justice system. Palestine, and more particularly Hamas, arguably does not.
• States requesting ICC investigations are required to cooperate fully with any probes of their citizens. That will apply to Palestine. It will not apply for Israel, which is not a party to the ICC Statute.
  
• Israeli has initiated a number of investigations into alleged misconduct and promised more. While such investigation in Israel may end up being the usual whitewash^*, this will make it more difficult for the ICC to establish its surrogate jurisdiction, since they will have to show that Israel is unwilling to prosecute^**.

Assessment

Israel and her American partisans went into full freakout mode over Palestinie entering the Rome Statute. But clearly, this is not the end of the world for Israel, despite the histrionics.

Israel is a sovereign state. Israel is no party to the ICC. The ICC as no power of arrest. In essence, the ICC has to argue two things - for one the war crime and then, that it has jurisdiction as the court of last resort.

Even when it comes to a sentence, the culprit could just sit it out in his settlement of choice. Travelling would become unpleasant and complicated though. So,the Israelis could simply do nothing and just sit it out, but being compulsively assertive they have grown mad over it faster than it takes me to finish typing this sentence.

So - since they really must do something - here's what they are IMO likely to do:

If an Israeli faces a possible ICC investigation or charge, expect the the Israelis to start investigating themselves. In doing so they'll make it more difficult for the ICC to establish its surrogtae jurisdiction. I think that insight is what underlies statements made by an IDF counsel that the IDF schould vigorously investigate charges made against the IDF (a legally reasonable if wildly unpopular position in Israel).

The episode to me clearly underlines the limits of the ICC.

The court is dependent on good will and cooperation – neither of which they are likely to get from Israel (or the US for that matter). It is doubtful even with the Palestinians, who, in their fervour to stick it to the Izzies, may not have thought the matter through to the end.

Because the ICC only prosecutes individuals, the Palestinians are specifically not ever going to get a verdict at the ICC that finds Israel guilty. Only the ICJ could do that.

While Israel doesn't want the court to investigate at all, the Palestinians are not much better, and demand that the court focuses on Israel crimes only. Not going to happen either.

Taken together, the stances of Palestine and Israel are likely to hobble and could thwart a meaningful investigation let alone prosecution of crimes committed in the Israeli-Palestinian conflict.

Also the Palestinians are setting themselves up for legal accountability for their own actions, which is by itself remarkable, even more so since that is a self-imposed limitation. They know what they're doing? We will see. Should this force the Palestinians and the Israelis into accountability, they'll all be better off.

In closing

The bottom line is, given that its actors are sovereign nation states, international law is only as good and as effective as these states want it to be.

The EU - a unique supranational union under the rule of European Law - works because her members by and large do have that good will. Institutions like the ICJ and the ICC, because they judge on matters of war and peace and war crimes, are not generally being granted such good will.

^* judging by the at times rather implausible verdicts that Israel produces in such cases: Israeli officer empties rifle magazine into Palestinian schoolgirl – not guilty …

^{** The situation in the US is different - here the Obama administration has made clear that it does not intend 'to look back' at the Bush era torture program. That the ICC can take as a statement indicating that the US do not intent to prosecute crimes like torture committed during the Bush years, giving them jurisdiction as the court of last resort.}

Links:

http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf?wptouch_preview_theme=enabled

http://en.wikipedia.org/wiki/International_Criminal_Court

http://en.wikipedia.org/wiki/International_Criminal_Court_investigations

http://www.truthdig.com/report/item/cutting_through_the_hysteria_over_courts_gaza_war_probe_20150127

http://www.jpost.com/Arab-Israeli-Conflict/Former-ICC-top-prosecutor-Israel-must-investigate-IDFs-alleged-war-crimes-to-avoid-ICC-probe-387620

http://www.latimes.com/opinion/op-ed/la-oe-0115-roth-palestinians-icc-20150115-story.html

Comments

[Adam L Silverman]

Actually the Palestinian Authority has a solid judicial system. Under support coordinated by the US Security Coordinator, the Palestinians have seen reforms in processes and procedures, programs to either repair or replace/build new facilities, and to make the entire system more transparent. Is it perfect? No. But it does exist.

[AEL]

I believe that the real fears of the Israelis are for the settlements themselves. Transfer of population to occupied territories is a war-crime and it isn't hard to see those red-tiled roofs on the ridges. The entirety of the Israeli government is complicit in the Settlement Enterprise and the Israeli judicial system is part and parcel of this effort.

[confusedponderer]

"Actually the Palestinian Authority has a solid judicial system"

All the better. Does it extend into Gaza?

[Babak Makkinejad]

I do not think it matters that much; one could argue that the French Courts under the German occupation were doing a decent job of administering the Law.

Likewise in Denmark, Norway, Holland, Belgium.

[confusedponderer]

Adam,
to be clearer: It is Hamas which is firing the rockets into Israreli built up areas and not the PA. The rocket fire will in all likelihood be the prinary Palestinian war crime in question here.

Hamas's legal and court system so far has not shown, and that is strictly factual, any inclination to act on that. That was what I meant, but failed to make explicit, in my post and my initial response.

[Mark Gaughan]

This may be a minor point, but I think the summer of 2014 rockets came from a group that had split off from Hamas, not Hamas itself.

[Linda]

I think that the Palestinians joined or hope to join the ICC is purely to raise their international profile. I believe that they understand the futility of having an investigation. But their efforts put them in a positive light as opposed to Israel. The Israelis claim they will do their own investigations, but there will not be any real punishment given out - remember the "butcher of Sabra and Shatiya" He came back to be Israel's Defense Attache in the US. How is that for jabbing the US in the eye!

[confusedponderer]

"I think that the Palestinians joined or hope to join the ICC is purely to raise their international profile"

I think so, too.

Palestinians are the clearly weaker party here, and Israel is capriciously playing out their strength to the fullest, and then some.

The Palestinians are not in a position to anything about it. They fight a war of the weak.