ICC and Palestine: Why now?

It has often been said that “timing is everything”, and yet, that does not necessarily mean that we understand the timing of certain decisions and announcements. It is clear that the decision to open a preliminary inquiry into the Palestinian occupied territories is long overdue.

However, that being said, why now? It is particularly intriguing as to why the ICC prosecutor announced on January 16 that a preliminary inquiry into the situation in the occupied Palestinian territories had been opened.

The International Criminal Court (ICC) in The Hague was established to bring an end to impunity and to put on trial those persons who bear the greatest responsibility for the gravest crimes. It was not established as a tool of regime change nor was it established to change the course of politics. It is first and foremost a tool of accountability.

No peace without justice

But recognising that there can be no peace without justice also plays an important role in shaping democracies and contributing to the peace process. Its role in the Palestinian conflict cannot be overstated, as it will now need to draw borders, consider the legality of occupation, and determine the nature of the conflict.

It is curious in that as much as the opening of the preliminary inquiry was inevitable following the filing of a request by the Palestinian unity government on January 1, it will not formally become a member of the ICC until April 1. The timing of the announcement is therefore a point of discussion, with many asking “why now?”

The reality of the position is that we may never know the reasoning, but we can certainly hypothesise.

With the recent collapse of the Kenyatta case, the discontinuation of the investigation into Darfur, the failure to address the situation in Syria, it is quite clear that a hard-hitting headline was required.

Well, there are few headlines that attract more attention and controversy than Palestine.

Before racing ahead to draw conclusions, we must consider an element of the background prior to discussing the main issue.

The issue of whether to become a member of the ICC has long been the subject of intense discussion. There are those that have seen the issue being used as a political tool.

Israel stated that joining the ICC was an act of provocation that would have dire consequences. Those consequences included the freezing of tax funds, lobbying the withdrawal of US funding and now, in a decidedly desperate move, lobbying states to withhold ICC funding.

The move by Israel to attack the ICC is a new low and further impacts on its readiness to accept a structured resolution to the ongoing conflict. It further demonstrates that the Israeli government has no intention to contribute to accountability, arguably an essential component of any peace discussions.

The peace process

Let us not forget here that the preliminary inquiry is to look into crimes committed by any person since June 2014 in the occupied Palestinian territories. It is not a referral to prosecute the Israeli government. The ICC prosecutor will look at the situation and will look at the conduct of all parties to the conflict.

Relying on the peace process as a reason for not seeking justice and accountability is fundamentally flawed. The peace process ended long ago with no progress towards the vaunted “two state solution” being made, and therefore the Palestinian Authority (PA) made a further attempt to achieve statehood in a tabled resolution before the United Nations on December 29, 2014.

The PA were clear that if this attempt at recognition failed, they would have no choice but to sign and ratify the Rome Statute. The resolution did fail and therefore a new direction was taken.

The announcement that the PA had joined the ICC was met with equal praise and condemnation among the international community, and a clear intention by Israel and its supporters to lobby the ICC to attempt to prevent any formal investigation from taking place. This has now progressed to urging states to withdraw funding.

This is from a state that considers itself, and its military, to apply the highest, and most morally defensible, international standards.

It is perhaps here that we can see the rationale behind the announcement of January 16.

By confirming that the preliminary inquiry has been opened, the prosecutor has effectively taken a decisive step to halt the inevitable lobbying efforts from Israel, the US, and others prior to the PA becoming official member on April 1.

Secondly, and perhaps inadvertently, there is an argument that the prosecutor has, by making the announcement, addressed a point that was likely to be much argued; the issue of whether the occupied territories constitutes a “state” for the purposes of the Rome Statute.

I do not seek to address this significant legal point in any detail, as that is beyond the scope of this commentary. However, it is significant that this will be the first occasion that the ICC has accepted jurisdiction over a state with no clearly defined borders. This will be a monumental challenge for the ICC to determine.

Future expectations

The decision of the prosecutor has not prevented the question of statehood being made, but it has perhaps taken the immediate “sting” out of the argument and ensured that it is one to be heard at a later date.

The question now is what should we expect to see over the coming weeks and months? Well, considering the snail’s pace at which international justice tends to travel, very little indeed. This is just the start of the process. The prosecutor has not opened an investigation – this is a preliminary inquiry – a fact finding mission.

An investigation is likely to follow over time, but this could take at least a year. She will have to determine the parameters of her inquiry. She will have to determine which areas to focus on first. It is likely that Operation Protective Edge will be the initial focus, but the question of occupation, settlements, etc, will have to be addressed at some later stage.

The implications of opening a preliminary inquiry are enormous. As noted at the outset, there are few issues that divide opinion more than the question of Palestine. It is here that the ICC will have to operate with a certain degree of recognition that it has a herculean task and with that a great deal of responsibility. 

This is clearly a historic moment and time will tell how the ICC steps up to the challenge. There is a long road ahead and this is just the very beginning.

Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.