Palestine’s Day in Court? The Unexpected Effects of ICC Action
Read or download the full paper by Valentina Azarova.
Palestine’s membership of the International Criminal Court (ICC) formally goes into effect April 1, 2015 – but the move to trigger ICC jurisdiction has been subjected to the politics and compromises of the Palestinian statehood bid, endangering the ICC’s machinery. Azarova discusses the current state of play and its potential trajectory; Israel’s legal offensive against the Palestinian move; the potential for further other accountability efforts;and the danger that the UN Security Council may pull the plug on the investigation. She addresses many of the misconceptions that exist about what the ICC can and cannot do and concludes with policy recommendations for a way forward.
Palestine & the ICC: The State of Play
In January 2009, the then Minister of Justice at the Palestinian Authority (PA) Ali Kashan sent an official declaration under Article 12(3) of the Rome Statute to the Office, then headed by Luis Moreno Ocampo. The Office slow-walked the process into oblivion by launching an unnecessary academic debate on the question of Palestine’s status as a state in international law.
On 1 January 2015, Palestine filed a new 12(3) declaration and deposited accession instruments to the Rome Statute with the UN Secretary General. The Office announced on 16 January 2015 that it had opened a preliminary examination on the basis of the 12(3) declaration.
Statements made by Palestinian officials following the recent declaration and accession to the ICC – including reports that “the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction” – indicate continued attempts to use the ICC as a political bargaining chip. However, short of Palestine withdrawing its declaration or accession, it has no power to reverse the move. AUN Security Council Chapter VII resolution can defer an investigation or prosecution for a renewable period of 12 months.
Despite attempts to prevent Palestine from joining the Court, there is no official procedure for challenging accession. The UN treaty system has already been updated to include Palestine as the 123rd State Party of the Rome Statute and the ICC’s website has done the same.
Procedural Issues: Palestine’s Options (and Lack Thereof)
The opening of a preliminary examination by the Office of the Prosecutor does not indicate that an investigation is likely to follow; most of the Office’s preliminary examinations have been closed without opening investigations.
As of April 1, Palestine could submit a referral under Article 14, as a State Party to the Statute, to refer a “situation” and highlight specific cases. Any such referral would not limit the type of cases or evidence considered by the Office and is highly unlikely to direct the Prosecutor’s attention away from Palestinian violations.
If the Office of the Prosecutor declines to investigate based on considerations of the “interests of justice” Palestine could petition the Pre-Trial Chamber to initiate a “hard” review with option to reverse. If the decision not to investigate is based on admissibility concerns — including the lack of gravity of the situation,as happened in the case of the Comoros referral,or the availability of domestic prosecutions –the Chamber can only request the Office of the Prosecutor to reconsider, but cannot order it to do so and is unlikely to second-guess an Office decision not to investigate.
Substantive Hurdles: Israel’s Attempts to Push Back
The threshold used to assess a State’s unwillingness to genuinely carry out investigations is based on an intention to shield perpetrators, an unjustified delay in proceedings, or a lack of independence and impartiality or genuine intent to bring perpetrators to justice (Article 17(2)).
Israel’s track record since Operation Cast Lead of prosecuting and convicting only four soldiers, and issuing the harshest sentence for a case of credit card theft, would almost certainly be deemed by the Office of the Prosecutor as insufficient to foreclose ICC jurisdiction.
The question is not whether Israel is “able” to conduct any investigations, but whether it is “willing” to do so given its long-standing legal and institutional practice, which includes refusing the application of IHL en bloc, extending the application of Israeli domestic legal jurisdiction to the West Bank, and rejecting the international consensus that the Gaza Strip is occupied territory.
Israel, well aware of the complementarity principle, is clearly taking steps to shield itself from ICC investigation. Israel’s State Comptroller, Judge Yosef Shapira decided in August 2014 to investigate decision-making by Israeli military and political echelons during Operation Protective Edge, with reference to “aspects of international law”.
Israeli non-cooperation is unlikely to present an obstacle to open-and-shut cases – including Israel’s settlement activities, the effects of the Gaza blockade, and some Israeli attacks during Protective Edge. However, Israeli non-cooperation will hinder the Office’s ability to investigate more complex cases concerning Israel’s conduct of hostilities in Gaza, and some of the law enforcement operations conducted in the West Bank.
While the Court should not meddle with the prospects of peace when determining the interests of justice it may nevertheless conclude that there are “substantial reasons to believe that an investigation would not serve the interests of justice” (Article 53(1)). The circumstances in which the “interests of justice” may be invoked are exceptional. It is reasonable to expect that the Court will see the need to intervenein a long-standing conflict in which victims experience an accountability vacuum.
What Might Some Specific Case Choices Be?
As per its practice generally, all the crimes within the jurisdiction of the Court are grave enough to pursue; however, which crimes are actually pursued is a matter of the Office’s policy. For example, despite the relatively small number of people killed by rockets and mortars launched into Israel by Palestinian armed groups in the Gaza Strip, the attacks would most probably be considered grave enough for inclusion among the specific cases within the overall situation, especially given the political significance of investigating both sides.
The Office of the Prosecutor’s limited resources and political sensibility make it likely to prosecute the safest cases, legally and practically speaking. Israeli settlements – which involve the unlawful and extensive appropriation of land, and the direct and indirect transfer of the occupier’s civilians into occupied territory – are widely viewed as being among the safest cases in the Israeli-Palestinian situation. The successful prosecution of high-ranking defendants involves showing an abuse of power and of the rule of law:Settlement construction would not be possible without the elaborate legal and administrative machinery of Israeli state bodies.
A key legal question concerning the settlements (as well as other cases) would be whether the nature of the criminal act of appropriation and transfer of the settler population is “continuous” or whether the only crimes under ICC jurisdiction would involve unlawful appropriations or transfers of Israeli civilians into occupied territory that occurred after 13 June 2014, the temporal jurisdiction ascribed to the Court (the date set by Palestine in its January 2015 12(3) declaration.)
In the case of apartheid, despite overwhelming evidence, the Office might consider this avenue to be challenging and politically charged. Since the crime of apartheid is comprised of war crimes, the Office might view investigating and prosecuting the latter crimes as a sounder strategy.
Israel’s Campaign to Head Off the ICC
The Israeli official response to Palestine’s moves at the ICC is unsurprising. Israel’s legal offensive against Palestine’s accession to the ICC in fact began in 2009, when it set out to refute Palestine’s state status as a means of disqualifying its January 2009 12(3) declaration. Given that the Office of the Prosecutor no longer considers statehood as an issue after November 2012, the Israeli legal offensive on ICC jurisdiction has apparently shifted to the issue of complementarity.
The Court’s leading supporters and funders, including Germany, the UK and France, have so far resisted Israel's call to cut the Court’s funding. It is unclear what these governments might choose to do when the Office of the Prosecutor decides upon its next steps.
Qualitative and quantitative research on the impact of ICC actions on unlawful harm to civilians, as well as Israel’s campaign to head off the ICC, indicate that the prospect of ICC investigations and prosecutions are part of Israel’s political calculus regarding Palestine. Indeed, one expert argues “Israel’s fury gives credence to the view that the court is […] a deeply relevant institution in international politics.”
Beyond the ICC: A Strategy to Broaden Accountability
Even if the Office of the Prosecutor slow-walks the preliminary examination, not all is lost: Other processes of international law enforcement, some already underway, can benefit indirectly from the effects of an ICC examination of Israeli violations.
Indeed, a Palestinian strategy to broaden the spectrum of international and inter-state accountability mechanisms and processes could ease the Prosecutor’s political burden. The Palestinian bid to ratify international treaties has opened up a range of mechanisms and processes, international and domestic.
The ICC’s examination of Israel’s conduct could facilitate third party states, companies, and international organizations to review their engagements with Israeli entities and ensure that they do not give legal effect to unlawful Israeli conduct. In some cases, third states could even be obliged to trigger inter-state enforcement processes.
Outbidding the Bid: Conclusions and Recommendations
Based on past practice as well as probable political considerations, some experts predict that the ICC may take years to open an investigation and several more to reach any decisions, short of declining to open an investigation. The high stakes riding on the ICC’s actions mean it is important that Palestine and its supporters act strategically and realize that its interests are best served by seeking to depoliticize the ICC’s role.
Crucially, Palestine needs to couple a legal strategy, at the ICC and beyond, with key housekeeping measures that show its commitment to international law by ensuring domestic conformity with international human rights law, humanitarian law, and criminal law through adequate legislation and institutional practice.
There is also an urgent need to distinguish between the PA, the government of the State of Palestine, and the Palestine Liberation Organization (PLO), which represents the State in its external relations, and clarifying Hamas’ position within the structures of Palestinian government, since, formally, Hamas officials are considered part of the Palestinian unity government.
Finally, given that the path to ICC investigations is expected to be long and tumultuous, it will be crucial to garner the support of friendly states for independent ICC action.