Palestine and the ICC: Why International Law Matters in the Middle East
Ardi Imseis, Thursday 16 Apr 2015


As Foreign Minister of Israel, Tzipi Livni made headlines when, during a 2007 negotiation with the Palestine Liberation Organization, she proclaimed that “I was the Minister of Justice. I am a lawyer, but I am against law; international law in particular.”

To many at the time, these remarks were not surprising, given Israel’s prolonged record of disregard for international law in its treatment of the Palestinians, documented in countless United Nations (UN) resolutions and reports, affirmed by the International Court of Justice and catalogued by leading human rights organizations, including Israel’s own B’Tselem. It has been that very record, and the failure to hold anyone to account for it, that has led some cynics to half-jokingly call occupied Palestine an international law-free zone.

On 1 April 2015, the Rome Statute of the International Criminal Court (ICC) entered into force in Palestine. Acceded to by President Mahmoud Abbas on 2 January 2015, the Rome Statute established the ICC and vested it with the authority to investigate and prosecute the most serious of international crimes, where domestic authorities are unwilling or unable to do so, including crimes against humanity and war crimes.

The accompanying declaration lodged by Palestine with the ICC recognized the jurisdiction of the court in the West Bank and Gaza Strip, including East Jerusalem, from 13 June 2014 – a date chosen to ensure coverage of acts committed during Israel’s ‘Operation Protective Edge’ last summer, where the UN recorded a death toll of 2,256 Palestinians (among them 1,563 civilians, including 538 children) and 71 Israelis (among them 5 civilians, including one child). While those acts may cover alleged crimes committed by both Israelis and Palestinians during the fighting, the lion’s share of any preliminary investigation opened by the Office of the Prosecutor of the ICC is likely to fall on the Israeli side of the ledger given the sheer numbers involved. As noted by Makarim Wibisono, UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, “[t]he stark disparity in casualty figures on the two sides…reflects the skewered [sic] balance of power and the disproportionate cost borne by Palestinian civilians, raising questions as to whether Israel adhered to the international law principles of distinction, proportionality and precautions.”

To make matters worse for Israel, any preliminary investigation is likely to also include its ongoing colonization of the West Bank, including East Jerusalem, through the implantation of between 500,000 and 650,000 civilian settlers since 1967. Article 8(2)(b)(viii) of the Rome Statute proscribes “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.

As with a variety of other prohibited acts under the Rome Statute, this war crime derives from the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Article 49 of which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” According to the International Committee of the Red Cross commentary on the Fourth Geneva Convention, the intent of this provision was to “prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories.”

The issue of illegal annexation through demographic alteration and colonization of occupied territory has been the principal concern of the international community in its treatment of the matter of Israeli settlements since 1967. Demonstrations of this include Security Council Resolutions 252 (1968), 298 (1971), 446 (1979), 452 (1979) and 465 (1980), the latter of which affirms that “all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East”.

Cynics from both sides of the conflict have viewed Palestine’s accession to the ICC as a ploy by Mahmoud Abbas to either bolster his credibility with an increasingly skeptical and alienated domestic constituency or to “abuse” law as a means of embarrassing Israel at a time when its legitimacy is increasingly under attack.

Either way, for many the result does nothing to alter the understandable perception that the climate of impunity and injustice that has fueled generations of conflict is far from being brought to an end. Indeed, and in no small part because of the practices listed above, it is now widely recognized that peace between Israelis and Palestinians is as unlikely to transpire today as it ever was.

Nevertheless, although not a panacea for the Israel/Palestine conflict, Palestine’s accession to the Rome Statute may actually provide a unique opportunity, and at a unique time, to affirm the role of international law in the service of peace, however distant a prospect it may be. In brief, there are at least three reasons for this.

First, for a durable peace to one day have any chance of being achieved, international law and justice must lay at its heart. Open claims, like open wounds, fester and drive peoples in conflict further apart. Two classic examples of this are the Treaty of Versailles and the South African Truth and Reconciliation Commission. Whereas the former was widely regarded as imposing terms on post-World War I Germany so onerous that they helped plant the seeds of World War II (what John Maynard Keynes called a Carthaginian peace), the latter offered a relatively successful mechanism for transitional and restorative justice, keeping in view the need for all stakeholders in post-Apartheid South Africa to have a proverbial seat at the table, with dignity and justice at the center of it.

In the Israel/Palestine context, the main failing of the Oslo process, commenced with the signing of the Declaration of Principles on Interim Self-Government Arrangements in 1993, was that beyond reference to Security Council Resolutions 242 (1967) and 338 (1973), it completely sidelined the relevant international legal framework governing military occupation, failed to expressly mention the right of the Palestinians to self-determination, and neglected to adequately address the full array of rights of Palestinian refugees.

While military occupation is meant to be a temporary state of affairs in international relations, based as it is on the inadmissibility of the acquisition of territory through the threat or use of force, the temporary became permanent during the Oslo years. Now in its 48th year, the occupation persists, Palestinian self-determination is no closer to reality, the number of settlers has over doubled, and peace between Israelis and Palestinians remains illusive. By going to the ICC, the State of Palestine has affirmed the importance of international law and justice for all who have been victimized in the conflict.

Second, notwithstanding Israeli protests over Palestine’s move to the ICC, Palestine’s accession to the Rome Statute has resulted in a slight upturn in Israeli military investigations into atrocities committed in the last war on Gaza. While this shift is aimed at forestalling ICC prosecution on the basis that domestic investigations are underway, a key feature of the Rome Statute, the fact that a small increase in investigations is proceeding is both slightly positive and demonstrative of a realization on Israel’s part that it has to take international law much more seriously in its dealings with the Palestinians, including at the negotiating table.

The negative consequences of failing to do so may be borne out at the ICC if Israel’s investigations into the 2014 Gaza war are shown to be male fide. Under article 17(1) of the Rome Statute, the court may assume jurisdiction of a case where it determines that a State that has jurisdiction “is unwilling or unable genuinely to carry out [an] investigation or prosecution”, or that it has carried out such an investigation and chosen not to prosecute because of such “unwillingness or inability”. Under article 17(2), in determining whether a State is “unwilling” to investigate or prosecute, the court is required to consider whether the proceedings or decision not to prosecute “was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court”, whether “[t]here has been an unjustified delay in the proceedings”, or whether “[t]he proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”.

Given Israel’s poor history with investigating its actions in Palestine, demonstrating the bona fide’s won’t be easy. As noted by Valentina Azarov, “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 [ICC] Prosecutor as insufficient to foreclose ICC jurisdiction”. A considerable complicating factor for Israel will be its systematic and widespread support for the settlement enterprise, a position that by definition will preclude the possibility of any domestic Israeli criminal investigation into settlements.

On the Palestinian side, while a preliminary investigation may be opened into the indiscriminate firing of crude rockets and mortars at Israel by Palestinian irregulars during the war on Gaza, it is uncertain whether this will result in prosecution. As highlighted by Victor Kattan, “it is possible that the Prosecutor may conclude that the Hamas rocket attacks aimed at Israel during last summer’s conflict that killed 4 [sic] Israeli civilians, whilst deplorable, will not be of sufficient gravity to justify further action by the court. […] This conclusion would be in line with the findings of the Prosecutor’s preliminary examination into the events that occurred on-board the M.V. Mavi Marmara when the Prosecutor concluded that the deaths of 10 Turkish nationals by Israeli commandos were not of sufficient gravity to justify further action by the court.” Suffice to say, the coming into force of the Rome Statute in Palestine has been a potentially important wake-up call.

Third, Palestine’s accession to the Rome Statute has offered a slight, but potentially important, corrective in the imbalance of power between Israelis and Palestinians that may one day help bring the parties closer together. Since the onset of the Oslo process, a preponderance of power has allowed Israel a free hand to consolidate and expand its control over Palestinian land, people and resources, virtually cost-free. For years, relative Palestinian weakness in the political, economic and military spheres disincentivized Israel to alter course. But absolute power corrupts absolutely.

In so far as it holds out the possibility of imposing a cost on Israel for its actions, particularly in respect of its settlement policy, Palestine’s accession to the Rome Statute is a potentially momentous development that may possibly assist the parties at a future negotiating table. Benjamin Netanyahu’s 17 March 2015 re-election (and defeat of Tzipi Livni’s Zionist Camp) on the express promise that there will be more settlements and no Palestinian State established under his watch, along with the Obama administration’s open assertion to reassess its relationship with Israel as a result, may add impetus to this. While fundamental changes in US support for Israel are unlikely, other States, particularly in Europe, have indicated they are concerned enough to adopt a more principled stance toward Israel. Given Palestine’s strategy to re-internationalize the conflict through use of legal and diplomatic tools at the UN, one element of which is membership in the ICC, this is no trivial matter and may push Israel closer to the realization that a peaceful settlement based on international law is in its interests.

*Ardi Imseis is a Ph.D. Candidate in the Department of Politics and International Studies, Fitzwilliam College, Cambridge. Between 2002 and 2014 he served as a senior policy and legal advisor with the United Nations in the Middle East.

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