Against the backdrop of Benjamin Netanyahu’s election win and the Israeli prime minister’s stated rejection of a two-state solution, Palestine will soon join the International Criminal Court (ICC), in a move expected to shake up a moribund peace process.
Frustrated by slow progress towards a deal with Israel, Palestinians have embarked on diplomatic efforts to “internationalise” their plight by securing UN recognition in 2012 and by joining the ICC, a war crimes tribunal based in The Hague, on Wednesday.
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Al Jazeera spoke with ICC officials and other experts about whether to expect alleged Israeli or Palestinian war criminals in the dock any time soon, and whether it could reshape a struggle that has confounded peace negotiators for decades.
What happens on April 1?
Palestine acceded to the ICC’s treaty in January; it comes into force on April 1. From that point on, the ICC can probe and prosecute alleged war crimes, crimes against humanity and genocide in the West Bank, Gaza and East Jerusalem. It can investigate alleged perpetrators from any country, including Israel, which is not a member of the court, if certain conditions are met.
ICC chief prosecutor Fatou Bensouda has opened a “preliminary examination” into atrocities in Palestine committed since June 2014 – backdating ICC jurisdiction to before Israel’s 50-day offensive in Gaza last July and August.
“I am looking at everything that is alleged to have been committed on the territory of Palestine,” Bensouda told Al Jazeera. “Depending on the facts and circumstances, my office will decide whether to continue to collect information, ultimately initiate an investigation or decline to initiate an investigation.”
The world’s first permanent war crimes tribunal was established in 1998 and currently has 123 members.
What ‘crimes’ could it tackle?
ICC prosecutors will note the heavy Palestinian death toll during last year’s Gaza conflict, making it one of the most anticipated cases. Tens of thousands of homes were destroyed and some 2,100 Palestinians, mostly civilians, died, including about 500 children. On the Israeli side, 67 soldiers and six civilians were killed. Prosecutors are also looking at Israeli settlement-building in the West Bank, which the UN calls “illegal”. The ICC treaty defines the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” as a war crime.
This is the Middle East, the land of the scorpion and the frog, which means that both sides could wind up getting hurt in this fight.
But Robert Danin, a former US official who worked on Arab-Israeli peace plans, called the ICC a “double-edged sword” for Palestinians. Hamas, which runs Gaza, routinely fires rockets at southern Israeli towns, and the ICC treaty defines “intentionally directing attacks against the civilian population” as a war crime.
“This is the Middle East, the land of the scorpion and the frog, which means that both sides could wind up getting hurt in this fight,” Danin told Al Jazeera.
ICC prosecutor Bensouda said nobody is immune from scrutiny. “We will be looking at alleged crimes committed by all sides to the conflict, in total independence and impartiality, and without fear or favour,” she told Al Jazeera.
Will it tackle them?
According to Kenneth Roth, director of the New York-based Human Rights Watch, the atrocities are so palpable that the ICC must act. “It is so clear that the Israel-Palestine situation will merit scrutiny by the prosecutor,” he told Al Jazeera.
Beyond the preliminary examination, the court can proceed to investigations, charges, arrest warrants and a full-blown trial, but cases must meet stringent criteria to advance. One is the “gravity” threshold: The crimes must be serious. Another is that the ICC is a court of last resort that can only try cases when national prosecutors are “unable or unwilling” to act. Israel has military tribunals to try errant soldiers, but, according to Roth: “In the last three wars, the worst punishment imposed on an Israeli soldier was seven-and-a-half months for stealing a credit card.”
Which side fares better in court?
Pro-Palestinian lawyers suffered a bruising setback in New York in February, when jurors awarded $218.5m in damages against the Palestinian leadership and blamed it for terror attacks in Israel that killed or wounded American citizens a decade ago. Pro-Israel lawyers chalked up another victory in New York last year, when jurors agreed that Jordan’s Arab Bank was liable for materially supporting Hamas.
Previously, efforts to issue arrest warrants against Israeli officials, such as Tzipi Livni and Ariel Sharon, via European justice systems did not succeed, through lack of political will. A case against Avi Dichter, Israel’s former security chief, over a one-ton bomb hitting a Gaza apartment block in 2002, failed in the US. However, the Palestinians secured a landmark victory when judges at the UN’s International Court of Justice voted 14-1 against Israel’s building of a wall on occupied Palestinian land and called for construction to stop in 2004. Building work has continued, despite protests from the UN.
When it comes to potential ICC cases, Israeli officials have long argued that they try to minimise civilian deaths and warn residents about impending attacks. They blame Hamas for using Palestinian civilians as human shields. According to George Bisharat, a Palestinian-American law professor at California University: “Israel will fight tooth and nail and raise every conceivable legal argument. No outcome is predictable.”
Does the ICC have enough muscle?
Since it started work in 2002, the ICC has struggled both to validate its legitimacy and to put criminals behind bars. Powerful countries like the US, Russia and China are not members, denying the court jurisdiction on their territories. In December, prosecutors dropped charges against Kenyan President Uhuru Kenyatta; Sudanese President Omar al-Bashir remains at large, despite an ICC indictment from 2009.
For Stefan Barriga, a UN diplomat from Liechtenstein and champion of global justice, the Israel-Palestine conflict is of a different order of magnitude to the African cases. “Just getting involved is a big deal for the ICC,” he told Al Jazeera.
The court can deflect political pressure for probing Israel by similarly investigating Palestinian violations, even though the violations are graver against Palestinians.
The ICC is already being bashed by both sides for tackling the divisive Israeli-Palestinian conflict. Palestinian supporters say the court will doubtless bend to the will of Israel’s ally, the US. Israelis say it is biased and has pre-judged the outcome.
For Bisharat, the court is “relatively insulated from political pressure” and bases decisions on evidence, not favouritism. “The court can deflect political pressure for probing Israel by similarly investigating Palestinian violations, even though the violations are graver against Palestinians,” he told Al Jazeera.
According to Barriga, prosecutors will follow due process and investigate duly. “The real test comes when warrants are issued and any of the indictees winds up in the territory of an ICC state party,” he said, raising the question of whether a European ICC member would detain a visiting Israeli official who was wanted by the court.
Will it change anything on the ground?
Courtroom dramas are fun to watch, but according to the US and Israel, the ICC is a sideshow that cannot change the underlying reality that Palestinians need to strike a deal through direct talks with Israel. The Palestinian approach acknowledges this: They seek to “internationalise” the issue to gain leverage in negotiations.
Talks have been deadlocked since 2014; Netanyahu recently spoke against a two-state solution that has been the basis of deal-making for two decades. While some analysts say the ICC will fuel acrimony between the rivals, Roth argues that the looming ICC probe has already prompted both sides to commit fewer offences.
“So far, Hamas rocket attacks have been reduced,” he said. “On Israel’s side, the typical Israeli action to a Palestinian step they dislike is to announce a massive settlement expansion. That didn’t happen this time, and I suggest that’s because settlement expansion is a war crime, subject to ICC jurisdiction.”
The ICC could be a game-changer that breaks the impasse in talks, he added. “The biggest impediment to trust is the war crimes that both sides have been committing, so the ICC’s deterrent effect can reduce the war crimes that are undermining the trust needed to get to peace,” he said.
Follow James Reinl on Twitter: @jamesreinl