Who Is Afraid of the International Criminal Court?

2015-02-06    |   

Who Is Afraid of the International Criminal Court?

Can the International Criminal Court (ICC) deliver the justice Palestinians have struggled to realize for well over a century? The pursuit of accountability at the ICC is one venue of this struggle. But any sustainable vision of Palestinian liberation must account for the confines of the courtroom in particular international law more broadly. As should be clear to all observers of international law, the odds are stacked against Palestinians in that courtroom. The challenge ahead is to innovate not simply litigation strategies but to put them in conversation with radical popular mobilization.

The move to the ICC does offer Palestinians two significant opportunities. One, it allows the Palestinian Authority (PA) to once and for all abandon US tutelage once. Since the Oslo Accords and its attendant processes created the PA in the 1990s, the nominal Palestinian leadership has relied exclusively on the United States as its patron saint. This reliance, and indeed the PA’s very existence as a product of Oslo have foreclosed the pursuit of self-determination. Instead the PA and the Oslo process nourished Israeli settler-colonialism, apartheid, and military occupation. Two decades of escalating Israeli political and economic dominance has left the PA with ever-shrinking space to maneuver. The turn to the ICC comes in many ways as a response to this externally—and to some extent self-imposed—straitjacket. The turn to the ICC will expose Palestinians to several vulnerabilities. Yet it also offers the PA another golden opportunity: to once and for all turn away from its investment in an ostensible peace process that has served to buttress a small circle of elite interests and return once again to the pursuit of self-determination. Such a pursuit would not preclude the possibility of a political solution. It would enhance the Palestinians’ negotiation leverage.

Despite rumblings for several years, PA President Mahmoud Abbas’s signing of the Rome Statute on the last day of 2014 came as a surprise to most observers. Until late 2014, the PA dangled criminal accountability as little more than a loaded threat in the vacuous remnants of a liberation strategy that the Palestine Liberation Organization (PLO) has abandoned since signing the Oslo Accords. Legal, grassroots, media, and popular mobilization fell to the wayside. On the legal front, such a strategy would include advocacy within the United Nations General Assembly, the advancement of human rights norms, the insistence upon adherence to international law, and cooperation with multilateral human rights organizations. It would also include supporting civil society representatives among human rights treaty bodies, and innovative claims within the International Court of Justice (ICJ) as well as in foreign national courts. The grassroots component includes support for local efforts aimed at building solidarity, including but not limited to Boycott, Divestment, and Sanctions (BDS) efforts. A media strategy involves globally taking on Israeli hasbara efforts through print, audio, television, and social media.

The PA turned its back on these strategies and adopted a narrow political emphasis rooted in an unequivocal faith in realpolitik. This faith effectively positioned the United States, in its capacity as world superpower and Israel’s primary patron, as the only party capable of delivering a Palestinian state. In practice, this strategy is the strict adherence to the US-brokered bilateral process, which lacks any reference to international law, external review mechanisms, and is dictated by expedience and pressure. In this iteration, the political is a narrow realm that dismisses the law and its attendant normative values as impediments to the possibilities of a political solution. Since 1993, at least, the Palestinian leadership has bought into this understanding of the political and left itself with no negotiating leverage.

Indeed, the PA has chosen time and again to prioritize realpolitik over any pursuit of legal accountability. There are many examples of these choices. In 2009, the PA rescinded the Goldstone Report from the United Nations Human Rights Council and turned its back on popular calls for criminal accountability as well as a review of Israel’s use of conventional weapons, and its non-adherence to the Fourth Geneva Convention. The PA also failed to leverage one of its most significant legal achievements, the 2004 ICJ Advisory Opinion on the route of the Separation Barrier and the situation in the Occupied Territories more generally. The PA showed no interest in using the ICJ’s recommendations to encourage states to cease all trade with Israeli corporations that facilitate the expansion of the wall or the entrenchment of its settlement infrastructure in the West Bank. The Palestinian leadership looked the other way when 170 civil society organizations assumed the mandate issued by the ICJ to states and launched the boycott, divestment, and sanctions (BDS) movement. The PA’s legacy of legal advocacy is one of missed opportunities and opportunistic failures. Since Israel’s twenty-two day aerial and ground onslaught on the Gaza Strip in 2009, the Palestinian leadership has invoked ICC prosecution as a threat of last resort should the United States (continue to) fail to deliver its political guarantees.

The concern in this last ditch turn is that the two decades of abandoning legal strategy means that the PA has not invested in its study, development, or preparation. It is likely ill prepared to tread the many pitfalls of an ICC investigation. The multilateral body, which is highly vulnerable to state interests and interventions, is replete with the trappings of legal technicalities. It cannot be a panacea to Palestinian claims for accountability. To successfully pursue ICC prosecution of individual Israelis on charges of war crimes and crimes against humanity, the PA must launch a multifaceted campaign that positions the courtroom in a broader vision of political mobilization. These efforts should support the ICC process, while looking far beyond it. ICC jurisdiction itself is not a silver bullet and may even prove more detrimental than beneficial. If the PA is to pursue claims within the ICC, it must do it within a broader commitment to resisting Israel’s apartheid regime and military occupation.

The law is a realm of both possibilities and obstacles, in particular in its inability to proximate non-legal justice. As David Luban, Michael Kearney, and others have shown, this is just as true for the ICC as any other venue. Here, I highlight these stumbling blocks and conclude with recommendations for viable legal strategies.

Stumbling Blocks on the Road to ICC Investigation and Prosecution


In 2009, the Fatah-dominated PA attempted to give the ICC ad hoc jurisdiction over Israeli crimes in the Gaza Strip during Operation Cast Lead. The ICC declined, stating that “only states can join the ICC or give ad hoc jurisdiction, and we cannot yet decide that Palestine is a state.” Since then, Fatou Bensouda was appointed ICC prosecutor. In August 2014, she signaled her willingness to consider a new application by Palestine. The November 2012 UN General Assembly vote, when 139 member states recognized Palestine as a state, may settle the question of statehood. The recognition of the state of Palestine renders an occupied territory as a viable entity. The evocation here of Palestine is one tinged with irony. The law has made its evocation before international legal institutions and multilateral bodies possible, while Israel both continues to deny and diminish its sovereignty. On 31 December 2014, Palestine deposited a 12(3) application accepting the ICC’s jurisdiction since 13 June 2014 and acceded to the Rome Statute. Unlike in 2009, in late 2014, Palestine committed itself to the Statute’s provisions and potentially made the entirety of the situation in Palestine, the West Bank including East Jerusalem and the Gaza Strip, subject to review.

As such, the ICC can investigate both Israel as well as Palestinian armed groups. Here, the law reifies the power imbalance between the occupying power and the occupied. However, some legal analysts have argued that only prosecuting Israel would be counterproductive for Palestinians. In this rationale, such a strategy would undermine the court’s legitimacy in the eyes of the world’s most powerful, and skeptical states, not least of which is the United States. Significant here of course is that of its (now) 123 parties, “Brazil is really the only large state in the world that is a member of the ICC.” Moreover, “more than half the world’s population lives in countries that do not belong to the ICC.” Here then, we see the vulnerability of the ICC. It has the potential to become a strong body but is reliant on the world’s strongest non-member states to determine the scope of its legitimacy.

Investigating War Crimes

The fact that the ICC can examine the entirety of the Palestinian territories is actually a positive development. Israel’s structural violations in law and policy and not simply its engagement in armed conflict become subject to scrutiny. Crimes that belligerents commit during wartime are the most difficult crimes to investigate. Their legal character is not self-evident. For example, the ICC would have to examine each of Israel’s military attacks on a case-by-case basis. This examination would entail a consideration of whether military harm outweighed the pursued military advantage. Thus the court must have access to military intelligence that both Israel and Palestinian resistance armed groups would not provide. More crucially the emphasis on the idea of “military advantage,” without examining the context in which that force is being used, itself legitimizes the use of armed violence and once again reifies the power imbalance between the colonizer and the colonized.

Legally, the conduct of Palestinian groups is easier to decipher. Palestinian rockets lacked the capacity to distinguish between military and civilian objects. Their use is thus ipso facto illegal. In contrast, Israel insists that it sought to avoid civilian casualties. This claim, while unevidenced, would necessarily complicate the legal readings of Israeli military action. Should Israel choose to participate in these proceedings, it will be eligible for making a case in contrast to Palestinian armed contingents. This has significant implications for Hamas, which governs the Gaza Strip and is one half of the desired, and necessary, Palestinian unity government. Its leadership will be the primary target of an ICC investigation and should the investigation lead to their prosecution, it will delegitimize their participation in government. Depending on who is prosecuted, it may have the effect of delegitimizing Hamas all together. Hamas recognizes this risk and has endorsed the ICC bid. Still, the Palestinian leadership should be prepared for this outcome and its impact on a unity government.

Palestine, as the ICC recognized it, is also at a disadvantage because of its inability to demonstrate that it can adequately investigate and prosecute its own alleged crimes. For this reason, the provision of complementarity, which affords the ICC jurisdiction only over cases where the state “is unwilling or unable to genuinely carry out the investigation or prosecution,” is—for all intents and purposes—moot. In contrast, Israel can make a case for complementarity. Specifically, it can argue that it is willing and able to investigate itself, as evidenced by its five ongoing criminal investigation into Operation Protective Edge. Together with its inclusion of non-military personnel in its military commissions, as established during the Turkel Commission, Israel could argue that these are genuine investigations. While Israel’s dismal record of investigating its own war crimes during Operation Cast Lead puts the adequacy of complementarity into question, to demonstrate that inadequacy would involve a separate and lengthy legal process. The principle of complementarity would at best shield Israel from ICC investigation and at worst, delay the process so severely as to thwart justice.

ICC Prerogatives

Even if the ICC could adequately investigate Israel’s alleged war crimes in during the summer of 2014, and assuming that it could demonstrate that Israel’s own investigations were not genuine, that does not guarantee an ICC investigation into the matter. The court may still choose to avoid the political landmines of walking into the Palestinian-Israel conflict, and, as put by Kevin Jon Heller, “slow-walk the preliminary investigation into oblivion.”

The Office of the Prosecutor (OTP) exercises significant discretion in deciding which cases and situations to investigate. Should the prosecutor find that a criminal investigation would not serve “the interests of justice” because it would hamper an ongoing political process or fail to adequately satisfy any party thus exacerbating the situation, she could simply delay the preliminary review process so severely as to make it irrelevant. Heller points out that this was the case in Afghanistan and Colombia:

Afghanistan was moved from phase two to phase three after seven years. In other words, it supposedly took seven years for the OTP to conclude that at least one international crime was committed in Afghanistan. You and I could have completed phase two in a lazy afternoon with tea. Photos of torture at Bagram Air Force Base would have been enough. Even one Taliban killing would have been enough for phase two to move to phase three, and yet it took the OTP seven years. Even worse, Colombia is still in phase three of the preliminary investigation after ten years, even though every human rights group inside and outside of Colombia agrees that the Colombian government is doing nothing to investigate and prosecute high-level perpetrators of violence in the country, particularly those that are linked to the government itself.

There is nothing to shield Palestine from this outcome. This possibility should temper faith in the ICC’s ability to deliver justice.       

Investigating Settlements

The Palestinian leadership can refer a specific situation to the ICC for investigation. Rather than refer the situation of the Gaza Strip or of Palestine, the Palestinian leadership could refer the situation in the West Bank only in order to limit the ICC’s investigation to the question of settlements. This may be preferable to prosecuting Israel for alleged crimes committed during Operation Protective Edge because it circumvents the difficulties of investigating military operations during hostilities. More importantly, a limited referral would bypass the hurdle of complementarity because Israel will investigate neither settlements nor prolonged military occupation since both are explicit Israeli state policies. That said, a limited referral will still open Palestine to prosecution for suicide bombings launched from the West Bank and other alleged crimes under the Rome Statute. Moreover, even this option is not a silver bullet since the Prosecutor can exercise her discretion to reject this referral for limited review. She can choose to investigate the Gaza Strip only or both the Gaza Strip and the West Bank, putting us back at square one.

While less complicated than the investigation of military operations, investigation of the transfer of civilian populations into occupied territories and the confiscation of land for that purpose will still raise considerable difficulties. These challenges include the impediments of bilateral treaties that the PLO and Israel have signed onto—namely Oslo II. Oslo II gave Israel military and civilian jurisdiction over Area C (of the West Bank), where Israel has aggressively entrenched its settler-colonial enterprise. The court is not likely to conclude that Oslo II overrides Palestine’s jurisdiction over the West Bank. As articulated by Darryl Li, Palestine did not delegate authority it had to Israel, but rather that the Occupying Power delegated its nominal authority to a temporary and local administrator, the PA. This is a lucid example of the irony of evoking Palestine as a state actor under the law. It exists as a forward-looking shadow without the ability to fully step into its own body.

That still leaves (at least) two issues. First, what is the value of the land swaps, which the PA has indicated a willingness to accept, on the territorial scope of the Palestinian state? And do those potential land swaps matter in light of the UN General Assembly November 2012 recognition and subsequent diplomatic efforts across Europe recognizing Palestine? I imagine that if the ICC prosecutor chooses to investigate this case or situation that she will defer to the majority will of member states and recognize Palestine as existing within the 1949 Armistice Lines. Secondly, what does ICC prosecution mean for land confiscations? During an ongoing armed conflict and under Occupation Law, which govern the West Bank and the Gaza Strip, Israel can justify these confiscations.

So Now What? Some Recommendations

At present, Abbas has only signed onto the Rome Statute and deposited a 12(3) application that gives the ICC retroactive jurisdiction to 13 June 2014. He has not referred a situation or case to the Office of the Prosecutor. This may be the farthest that the Palestinian leadership actually goes and that would not be unwise. This holding position is forward-looking and serves as a deterrent to any future attack Israel may launch against the Gaza Strip. If, however, the PA chooses to refer a situation to the prosecutor, then it is best to refer one of structural substance. One possibility is referring the situation in the West Bank in order to focus on settlements. If the prosecutor accepts this limited review, it would avoid the possibility of complementarity as well as the many liabilities associated with the investigation of hostilities in the Gaza Strip.

The ICC will not be the site of adequate redress for Palestinians. The likely scenarios include: the court slowly killing the referral in the inaccessible and lengthy intricacies of its proceedings; Israel evading prosecution through complementarity; the prosecution of alleged crimes committed by Palestinians only; and investigation of Israel’s settlement enterprise preceded or complimented by prosecution of Palestinians. These possibilities range from abhorrent to tolerable. The ICC cannot be a destination in and of itself. It is simply one venue, and a complicated one at that, of many. Any courtroom, including the ICC, can only be effective if it is one part of a broader commitment and struggle for self-determination and justice.

This broader commitment and struggle is the only way to leverage any potential benefits ICC prosecution may offer. The isolation of Israel and the delegitimization of its apartheid regime and military occupation require a resistance platform. Such a platform would include the PA’s expansion of its legal strategy and its seeking of diplomatic partners to resist and withstand US sanctions. It would include the PA’s turning to civil society’s robust campaigns, such as but not only the global BDS campaign, for direction. It would include the PA’s dedication to a concerted media effort, as well as its investment in Palestine’s cultural workers, and in a agricultural resistance economy. Such an economy seeks to provide basic goods to Palestinians in the Occupied Territories and enables them to boycott Israeli goods and resist their formation as a captured market. It would include achieving an actually functioning realistic unity government with Hamas- one that envisions the possibility of ICC prosecution against its leadership and prepares for that attendant fall-out.

Ultimately the best outcome of the turn to the ICC would be the PA’s extrication from the swamp that is Oslo and its reorientation toward Palestinian liberation. The worst-case scenarios are abundant. The PA could use ICC prosecution haphazardly and, more detrimental still, as weak leverage to continue the structural trap of bilateral negotiations. The best-case scenarios require diligence, resources, and a tremendous amount of good fortune. Most of all, they require the PA to turn away from its limited pursuit of self-interest. Such a dramatic shift among the Palestinian leadership offers much more promise for the pursuit of justice than any court could deliver.

This article was published in Jadaliyya

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