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Will the ICC restrain violence between Israel and Palestine?

To the delight of many states and the dismay and indignation of some, Palestine has made a step forward on the international stage.  Last week, the UN General Assembly accepted the request which granted Palestine the status of a “non-member observer State”. Palestine’s role at the UN will not undergo a drastic change, but the International Criminal Court might be mentioned more often in the future when we read about the conflict between Israel and Palestine. Palestine is now eligible to sign the Rome Statute of the ICC with possible consequences for Israel. These consequences might appear in the form of Palestinian demands to investigate and prosecute alleged crimes against humanity and war crimes conducted by Israel.

“Yes, the occupation will continue, the settlements will continue, the crimes of the settlers may continue, but there will be consequences,”— Saeb Erekat, Palestinian negotiator, 2012

Palestine recognised the ICC’s jurisdiction already in 2009, albeit unsuccessfully as the ICC rejected the unilateral declaration on the grounds that Palestine does not fulfil the basic prerequisite of being a state. Importantly, the ICC claimed that in the case of a dispute about the question whether an applicant does meet the requirements attributed to statehood, the UN Secretary General, who receives the instrument of accession, would follow the advice of the UN General Assembly. The Assembly has now spoken and decided in favor of Palestine. The ICC was established by the Rome Statute and is tasked to hold individuals accountable for crimes such as war crimes, crimes against humanity, aggression, and genocide. Palestine is likely to address crimes on its territory such as forced displacement and persecution. Israel, which is not a state party to the Rome Statute of the ICC, would struggle to justify these alleged crimes as military necessity.

Fatou Bensouda, the Chief Prosecutor, might soon be addressed by Palestinian authorities who hope to bring Israeli Prime Minister Benjamin Netanyahu to trial. However, the likelihood that we will see Netanyahu in The Hague is rather small, probably even impossible. The Prosecutor does not have to conduct an investigation if she deems that there is either insufficient evidence proving, or at least assuming, that individuals in Israel have committed any war crimes or crimes against humanity or by drawing on the principle of complementarity, which would come into force if the Prosecutor assumes Israel to be capable and indeed willing to investigate the accusations.

Notwithstanding these potential barriers, the Prosecutor might decide that an investigation is necessary; though the possible necessity of an investigation is likely to be negated by Realpolitik. Notwithstanding the fact that the Czech Republic was the only European state to vote against an upgrade of the Palestine status, it is rather doubtful that states that abstained or indeed voted in favor of Palestine, would accept such an investigation.

UK’s demands incompatible with statehood

The UK, for example, was believed to vote in favor of Palestine, though it abstained in the end. A reason might be a demand made by the UK authorities: “Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice which could both be used to pursue war crimes charges or other legal claims against Israel.”

The UK’s underlying rationale for this demand is understandable as it fears an end to any hope for a peace process. Nonetheless, the conditioned support by the UK contradicts the very norm of statehood and its attributed rights. On the one hand, Palestinian statehood would be recognized, on the other hand this specific statehood would not enjoy rights commonly attributed to a sovereign state; namely, the right to sign international treaties.

Another pivotal role is played by the US, which has not signed the Rome Statute of the ICC, but, nonetheless, has started to accept the ICC as a valid tool to hold individuals responsible for mass atrocities accountable. An investigation pointed at the Israeli Government is very likely to cause a withdrawal of US support for the ICC.

Further, the ICC would not be able to apprehend suspects as it would have to rely on the Israeli authorities to arrest and extradite suspects. One does need to elaborate on the likelihood of Israel or any of its allies arresting Israeli individuals alleged of crimes against humanity by the ICC.

A glimmer of hope

However, there is reason for hope. Reuters news agency reported that “Netanyahu has indicated in private he fears Palestinians might accuse his government of violating the Geneva Conventions’ prohibition on forced displacement of populations by establishing settlements”.

Maybe the chance of ICC involvement, slight though it is, will influence some degree of restraint in future Israeli decision-making. Notwithstanding the fact that that many pointed their finger at Israel recently, one should not forget that Palestinians might become the subject of investigations as well. This, in turn, might exercise some restrain on Palestine. Subsequently, possible ICC involvement might exercise some restraint on both sides. This will not solve the conflict, especially as retributive justice exercised by the ICC addresses merely symptoms but not the causes of conflict. However, the conflict might be less violent and we may see some more negotiations, rather than violence, in future.


About the Author

Thomas Hauschildt

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Thomas Hauschildt earned his BA in International Relations from the University of Portsmouth and is currently studying for his MA in Dispute and Conflict Resolution at the School of Law at the School of Oriental and African Studies, University of London. His interest lies in the field of conflict and security, especially in the causes of conflicts, their prevention and resolution. In the past Thomas worked in the financial services industry, the German Navy and for NATO. In addition, Thomas volunteered for the British Red Cross and interned with charities in the field of dispute resolution and development in London. 
  • Robert Rowley

    ICC only has legal authority over those who sign the Rome Accord, something Israel did NOT do. ICC has NO jurisdiction over Israel or Israelis and is thus powerless. Also, one wonders if the “Palestinians” might not have a LOT more to answer for in the ICC than Israel ever would considering most if not all the “Palestinian” groups are considered terrorist groups by almost all countries.

    • http://www.jeremyrhammond.com Jeremy R. Hammond

      If an Israeli who has been charged with war crimes leaves Israel and ventures into another country that HAS signed the Rome Statute, he will face arrest.

      • dubinsky

        not anywhere near likely, son.

        you’re whistling Dixie.

        • Mike Thompson

          With Israel rocketing up the list of “The Worlds Most Corrupt Countries” you may have a point dubinsky, but there again, you may not!

        • http://www.jeremyrhammond.com Jeremy R. Hammond

          I didn’t say it was likely. Just observing the fact.

          • dubinsky

            fair enough, Hammond.

  • Prof. Taheri

    The violence between the sides will most likely come to a head as portrayed in Jonathan Bloomfield’s award-winning book, “Palestine.”

    • Mike Thompson

      Come on! That`s as bad as saying “watch a John Wayne movie for an accurate history of WW2″.

  • James O’Neill

    @Robert Rowley. Your assertion is incorrect as a matter of international law. The ICC has jurisdiction over crimes committed by non-member states when those crimes are committed on the territory of states that are signatories to the Rome statute. This is why the Israelis had a concern over Palestinian recognition by the UN General Assembly. Palestine now has the ability to accede to the Rome Treaty and crimes committed by Israel on Palestinian territory are subject to ICC jurisdiction.

  • Mike Thompson

    Israel corruption is being increasingly exposed dubinski, despite tightening Israeli control of press freedom.

    Israel is down to 133rd in the Press Freedom Index, with the Occupied Territories down to 153 out of a total of 179 countries en.rsf.org/press-freedom-index-2011-2011.

    Restricting information ensures ignorance prevails amongst Zionists, it`s the Israeli way.

  • dubinsky

    Mike, you have a link that actually works?

    • Mike Thompson

      Ho dub, the year date should have been 2011-2012.

      But Google Reporters Without Borders, that web site is en.rsf.org (computers are black magic as far as I`m concerned).

      Israel IS moving in the wrong direction re. corruption, I mentioned Israeli press restrictions simply to illustrate Israel`s need to suppress information that rocks the Gil Eyall inspired press releases (That man is a genius! A God of a spin doctor!) he gives what supporters of Israel needs, shame that it`s works of fiction, but hey why let the truth spoil a good story.

  • dubinsky

    and I’m glad that you ceased trying to maintain your ignorant claim about Israel rocketing up the world’s most corrupt lists… and are trying something else.