Can the International Criminal Court help the Palestinians?
Like virtually everything else connected to the Israel-Palestine conflict, the recent decision by the International Criminal Court producedpolarized reactions. The ICC, based in The Hague, ruled on February 5 that it has jurisdiction in Palestine, allowing its chief prosecutor to investigate alleged atrocities despite fierce Israeli and American objections.
(Palestine was admitted to the Rome Statue, which forms the legal basis for the ICC, in 2015. Israel, along with the US, Russia and China, has refused to join).
The prosecutor, Fatou Bensoudafrom Gambia, had announced in December 2019 that she intended to launch an inquiry into alleged war crimes in the West Bank, East Jerusalem and the Gaza Strip. But crucially, due to Palestine’s status as an occupied territory rather than a sovereign country, she waited – over a year – for the pre-trial chamber of judges to “confirm” if the court had the authority.
News that the judges had done exactly thatcaused predictable outrage. Prime Minister Binyamin Netanyahucondemned the decision as “pure anti-Semitism” while ignoring the fact that the prosecutor had also mentioned Hamas, the Islamist movement which rules Gaza, for targeting Israeli civilians.
Palestinians hailed the ICC move.Mohammed Shtayyeh Prime Minister of the Palestinian Authority, called it “a victory for justice and humanity and the blood of the victims and their families”. Others described it as a win“for international criminal law accountability and a defeat for the geopolitics of impunity.” Amnesty International praised a “historic ruling.”
Yet it is far from clear how much difference it will make to the Palestinian cause. It remains to be seen whether the ICC will open an investigation any time soon, and if it does, whether the new prosecutor – Bensouda is stepping down in June – will pursue it.
Another factor is whether the Palestinian leadership, under President Mahmoud Abbas,decides to go down this road given that it is likely to be offered incentives to abandon it – for example promises of renewed US and international pressure on Israel to return to bilateral peace negotiations –last held in 2014.
No-one, of course, failed to notice that the decision was condemned by the new US administration. “We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly,” responded the state department, confirming continuity with the hostility of the Donald Trump towards the ICC. Amongst EU member states, Germany and Hungary have also expressed support for Israel.
Back in 2019 Bensouda listed three types of possible crimes: those committed by Israel and Hamas during the Gaza war of summer 2014; those committed by Israel during mass Palestinian demonstrations along the Gaza-Israel border from March 2018; and those committed by Israel through settling its civilians in the occupied territories.
Legal experts have advised the ICC to make a distinction between these different categories, noting that settlement in “Judea and Samaria” has been pursued by different Israeli governments – both left and right-wing - since shortly after the 1967 war.
Netanyahu predictably honed in on this point, asserting that the ICC is “outrageously” claiming “that when Jews live in our homeland, this is a war crime.” Israel’s prime minister, not surprisingly, makes no distinction between the 1967 borders and the current “one state reality,” in which Jews and Arabs who live between the “(Mediterranean) sea and the river (Jordan)” have unequal rights.
Over a quarter of a century after the Oslo Accords of 1993, Palestinians remain stuck in the structure of the semi-autonomous Palestinian Authority in Ramallah; East Jerusalem was annexed by Israel long ago and Gaza remains under the control of Hamas, though Israel and Egypt retain control of its borders and airspace.
Israel’s defence against the ICC is that disputes with Palestinians should be settled by negotiations, not legal action. But it is nervous about efforts to arrest generals and ministers while travelling abroad(the court doesn’t prosecute countries, only individuals).A list of hundreds of Israelis who could potentially be at risk has already been prepared.
Israeli media reported relief when Bensouda’s successor – the British lawyer Karim Khan – was selected. Khan was described as “pragmatic” and expected to avoid “politicization” of the ICC.
Still, the liberal daily Haaretz described the ruling as a “red flag” adding: “Israel now has the status of a suspect state, and it must present its arguments and its interpretation of the incidents the court will investigate. Throwing mud at the ICC and refusing to cooperate with the investigation won’t acquit it if its guilt is in fact ultimately proved.”
This is a complex issue, with both political and legal implications. For Palestinians it indeed constitutes a moral victory, but for the moment at least, a largely symbolic one, against Israeli impunity and accountability. An actual legal victory is hard to imagine.
Overall, the ICC’s decision reflected radically different - and wearily familiar - approaches towards the world’s most divisive conflict. But Israelis and Palestinians are doomed – whether they like out or not(and many of course do not) - to share the same land. Will this latest move help achieve that? It seems unlikely.
BY: IAN BLACK