Palestine’s ICC bid could mark turning point

The Hague – Palestine’s bid to join the International Criminal Court (ICC) could mark a turning point in the Middle East conflict, as the war crimes court could prosecute both Israelis and Palestinians.

This week, Palestinian president Mahmoud Abbas signed papers requesting membership in the Hague-based court, and the Palestinian ambassador to the UN formally submitted the application to the UN secretary-general on Friday. It will take a minimum of 60 days for the request to come into effect. The move comes just days after the UN Security Council rejected a resolution that would have set a deadline for Israel to end its occupation of Palestinian territories.

If the court accepts the application, the ICC prosecutor could open an investigation into war crimes, crimes against humanity and genocide committed on Palestinian territories by any party. “The ICC would have jurisdiction to prosecute both Israelis and the Palestinians,” Eugene Kontorovich, a professor of international law at Northwestern University in Chicago and an expert on the conflict, told Al Jazeera.

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If the ICC decides to step in, crimes by both sides are likely to come under scrutiny, Kontorovich said. Hamas has been accused of indiscriminately targeting Israeli civilians and firing rockets from civilian areas, while Israel could be prosecuted for its settlements and the offensive in Gaza this summer, legal experts say.

In a report, Amnesty International documented attacks by Israeli forces, saying they amounted to war crimes. The attacks took place during Operation Protective Edge in July and August. 

Since ICC prosecutor Fatou Bensouda can only investigate crimes that take place after Palestine has ratified the court’s founding treaty, she would not have a legal basis for the prosecution of incidents related to Operation Protective Edge. However, Palestine could decide to give the court the power to cover events in the past, including Israel’s conduct in Gaza in 2014, international relations scholar David Bosco argues. Abbas has reportedly asked the court to investigate crimes that took place on Palestinian soil after June 13, 2014.

The ICC can only prosecute persons, not states, organisations or other entities. However, Palestine cannot choose which individuals the prosecutor goes after, nor could it avoid the prosecution of Hamas or Fatah members, Bosco noted.

Before the prosecutor’s office in The Hague can open an investigation, Palestine likely has to ratify the Rome Statute – the court’s founding treaty. The ICC, too, has to accept the membership. In 2012, the prosecutor rejected an application, arguing it was unclear whether Palestine was a state. However, its status was since upgraded by the UN General Assembly and more recently by other ICC member states, making it likely the court will accept Palestine’s bid this time.

As a member of the ICC, Palestine could invite the court to investigate crimes committed on its territory, while the prosecutor could also request an investigation on her own. However, “so far the ICC has tried only middle-ranking rebel leaders from Africa”, Kontorovich said, noting the court might lack the experience and the teeth to go after prominent Israeli and Palestinian suspects.

An Israel-Palestine case would not be an easy one for the court, which has previously experienced difficulties in investigating politically controversial cases. In December, the prosecutor had to drop charges against Kenyan President Uhuru Kenyatta. Eight days later, she announced a halt to investigations in Darfur after failing to get the necessary support from the Security Council and the international community.

The ICC does not have its own police force, instead relying on states’ cooperation to arrest suspects and carry out court decisions. Prime Minister Benjamin Netanyahu has already indicated Israel would protect its soldiers from prosecution, saying the Israeli army is “the most moral army in the world”.

“The ICC moves slowly, so one cannot expect immediate action on the part of the ICC in response to Palestine’s joining the ICC,” John Dugard, the former special rapporteur to the UN commission on the human rights situation in Palestine and a professor of international law, told Al Jazeera.

But the political implications of the Palestinian action are serious, he added. Firstly, it raises the possibility of the prosecution of Israeli and Palestinian leaders for war crimes. “The Israel Defense Forces portrays itself as the most moral army in the world. This will now be brought into question,” Dugard said.

Secondly, Israeli settlements could come under scrutiny: “If Israelis are summoned by the ICC, the West will have to come to terms with the fact that Israel is a criminal state and withdraw its protection.”