Palestine, Israel and the International Criminal Court

On April 1st 2015, Palestine formally acceded to the Rome Statute, the founding treaty of the International Criminal Court (hereafter, ICC), in a bid to pursue allegations of war crimes committed by Israel. Shortly after accession, the decision was made by the ICC’s Office of the Prosecutor (hereafter, OTP) to open a preliminary investigation into the events that unfolded in the region from the summer of 2014, a summer that saw a huge devastation on human life during Israel’s so-called ‘Operation Protective Edge’. The decision to accept Palestine as a member of the ICC has a number of implications in the international community which shall be examined below.

Function of the ICC

Before examining the effect of accession, it is important to understand the function of the International Criminal Court in the international community. The purpose of the ICC is to attach criminal responsibility to individuals for their actions at an international level and punish the acts accordingly. However, it is not a judicial tool to punish every single crime that occurs at an international level, only “the most serious crimes of international concern”, as set out in Article 1 of the Rome Statute. These can be defined as: genocide; crimes against humanity; war crimes, and; the crime of aggression.

Furthermore, the ICC does not operate on the basis of universal jurisdiction; its reach is limited by the delegated jurisdiction granted by member states. Thus, the ICC could not exercise full jurisdiction over states that are not party to the Rome Statute – such as Israel or the United States, for example.

Question of Implicit Statehood

Whilst the majority of the international community are in agreement regarding the question of Palestinian statehood, there exists strong opposition from major world powers, most notably Israel for obvious reasons, and the United States, their greatest ally.

The Rome Statute provides that only States can accede to the Court. In 2009, Palestine had attempted to join the ICC but the then OTP had refused to accept accession until an international agreement could be reached regarding the position of Palestine in the international community. This decision took three years for the OTP to come to. Shortly after, Palestine’s position in the United Nations was elevated from ‘observer entity’ to ‘non-member observer state’ through General Assembly Resolution 67/19. Whilst this is predominantly seen as the moment statehood was granted to Palestine, it is understandable why some confusion may exist. The position of Palestine has not changed since the passing of the GA Resolution.

The ICC may have created a dangerous precedent of implicitly ‘granting’ Palestine statehood in granting accession. It is not the place of the ICC to implicitly grant statehood in the manner they may have done so in this instance. The purpose of the ICC is to prosecute individuals responsible of international crimes and venturing out-with their jurisdiction into matters such as statehood may make States reluctant to join the Court in future. The ICC has never been given the role of a “border-determination body” as Eugene Kontorovich states; this should be left to the ICJ.

Violations of International Law

Whilst this blog is not long enough to list the various crimes that took place during Operation Protective Edge, there exists a vast amount of evidence to warrant a full investigation in the ICC. Breaking the Silence, an Israeli NGO that contains Israeli Defense Force testimony to actions during the summer of 2014, along with the various UN Human Rights Council Reports have numerous examples of various breaches of international criminal law at a systematic level against both Israelis and Palestinians. It is highly unlikely that the Court will consider the actions of Israel as genocide, although it arguably could be considered as such, due to the political fallout that may occur. Instead, the issue of crimes against humanity is likely to be investigated. These specficially include: the targeting of civilians; inadequate warning and risks to civilians; disproportionate and indiscriminate attacks; the use of human shields, and, potentially; the West Bank Settlements.

Should trials take place; it would involve military commanders of Palestinian armed groups and the IDF, as well as governmental officials. Despite it being extremely unlikely these individuals directly participated in the conflict, Article 28 of the Rome Statute provides the legal basis to prosecute on the basis of superior responsibility for the crimes committed by their subordinates.

Complementarity Principle

The complementarity principle is one of the governing principles of the ICC – it remains the sovereign responsibility of the State to punish crimes within their jurisdiction.Article 17 of the Rome Statute provides that the Court is not able to investigate if: “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”

States’ historical reluctance to allow nationals to be tried by an international body meant a middle ground was found in the drafting of the Rome Statute – only prosecute international crimes where the State fails to genuinely do so, or waves their right to prosecute.It is highly unlikely that States would have quite so readily acceded to the Rome Statute had a primacy relationship been in place due to encroachment into the principle of sovereignty.

Palestinian accession to the Rome Statute has seen an increase into the military investigations conducted by Israel themselves following Operation Protective Edge. Despite this welcomed move by Israel, it would not be unwarranted to state this increase is an attempt to stall any international investigation.

The investigations have been centred on low-ranking military officials rather than commanders or government officials, a concern of the UN HRC Report , which stated Israel must “ensure that such investigations will not be confined to individual soldiers alone, but will also encompass members of the political and military establishment, including at the senior level, where appropriate.”

Routes for the Court

                Close the Investigation

The Prosecutor could, in light of the evidence gathered, decide the best course of action would be to close the examination. Whilst this may seem like a strange decision based on the information available, there could be various legal, diplomatic or financial pressures to do so. It wouldn’t be unreasonable to suggest the situation in Palestine fails to meet the gravity requirement set out in Article 17 of the Rome Statute.  This would be unlikely due to the number of civilian deaths since the start of the conflict in 2014 – a number higher than the situations in the Central African Republic and Mali, for example, where full scale Court investigations were launched.

Secondly, the diplomatic pressure on the ICC to close an investigation could become enormous, particularly due to the backing Israel receives from the United States. However, since its inception the ICC has been accused of focussing on African and non-Western actors – of the 10 formal investigations opened, 9 have involved African states. Only in recent years, with an investigation into Russia’s actions in Georgia, have the ICC’s interests left the African continent. Palestine may be seen as a welcomed opportunity to move away from the perception of an African bias.

Finally, it has been stressed that the resources open to the Prosecutor are limited – the ICC relies on funding from contributions received from State parties. Much of the focus of the ICC’s past investigations have not included the major powers in the international community, possibly due to the possibility of funding cuts. Following Palestinian accession, Israel called on the major world powers to cut their funding – targeting Canada, Australia, Germany and Japan, which would account for approximately €30m of the ICC’s already limited contributions

Open an Investigation

Opening a full investigation into the events of Operation Protective Edge is perhaps the most dramatic option open to the Prosecutor. It is important to note, however, a formal investigation does not necessarily condition convictions will take place – only three convictions have taken place after indicting 39 individuals. It is likely that any potential investigation that does open will include violations of international law from both sides. It is unclear over the level of co-operation that will be given by Israel whereas the Palestinian state is under an active duty to assist any investigation by virtue of being a member of the ICC. Thus, there is the risk that the investigation becomes one-sided in probing only violations of law by Hamas and Palestinian armed groups as they are unable to gather reliable evidence for Israeli actions.

Conclusion

This post has shown that there exists potential for a full Court investigation into acts committed by Hamas and IDF members, as well as Israeli Governmental officials. Should the Court wish to proceed with trials against individuals, it would be expected to be in violation of Articles 7 and 8 of the Rome Statute – violations of crimes against humanity and war crimes.

Despite Palestinian accession to the ICC and the possibility of accountability being achieved for the events in 2014, justice for the perpetrators is still likely to be a number of years away should the Prosecutor wish to proceed with a formal investigation. However, it is an exciting development for the international community and the Palestinian people.

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