Smoke and flames rise from Gaza's electricity distribution company plant after it was hit by Israeli strikes in the Nusseirat refugee camp, central Gaza Strip

The ICC and the Challenge of Palestinian Accession – Seeking Justice at the Cost of Peace?

Smoke and flames rise from Gaza's electricity distribution company plant after it was hit by Israeli strikes in the Nusseirat refugee camp, central Gaza Strip

The recent decision by Palestine to join the International Criminal Court (ICC) has generated grave concerns over the Middle-East peace process. At the same time, its decision to join reflects a desperate move to pursue state recognition and international justice regardless of the repercussions. But what does this mean in practical terms and what implications will it have for the parties concerned?

On 1 January 2015 Palestine lodged an ad hoc declaration, under article 12(3) of the Rome Statute, accepting the jurisdiction of the Court as of 13 June 2014 (a day after three Israeli teenagers were kidnapped and later killed in the West Bank which reignited the armed conflict in Gaza). This means the Court would have power to investigate crimes as of 13 June 2014. A day after the ad hoc declaration the Palestinian President Mahmoud Abbas transmitted the ratification documents related to the Rome Statute to the UN Secretary-General, who is the depositary of the Rome Statute.

Later, on 6 January after careful analysis UN Secretary-General Ban Ki-moon confirmed that Palestine would join the Court on 1 April 2015 (according to the Rome Statute, the “Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations” – See article 126(1)). The ad hocdeclaration allows the Prosecution to start conducting preliminary investigations sooner than the accession date though stricter rules apply. These circumstances open the door to at least two potential investigations as has already been explained by several commentators (see for example commentary by Harvard Professor Alex Whiting). The first potential investigation would look into alleged war crimes committed by either side during the Gaza war last year, and the second would concern Israeli settlements in the occupied territory.

Palestine’s decision clearly has the potential to complicate any future solution of the Palestinian-Israeli peace process, which raises the question as to what was the main rationale behind Palestine’s move. One can only guess, but the most likely strategy being pursued is Palestine’s relentless quest for gaining state recognition over the last decades.

This strategy gained momentum in November 2012 after the UN General Assembly voted in favor of granting Palestine ‘non-member state observer status’ (resolution 67/19) replacing its previous ‘non-member entity status’. Hereafter, Palestine has been recognized by both states and international organizations, and has ratified over 20 international conventions, including the Geneva Conventions which form the core of international humanitarian law. Yet, despite this progress Palestine’s final attempt to obtain statehood recognition was quashed after the UN Security Council voted to reject it on 30 December 2014. The decision to join the ICC seems to be yet another move in its quest for statehood recognition.

The price to pay is quite high as a referral is a sword that cuts both ways: no specific crime can be referred, only a situation as such. So the Palestinians could find themselves being investigated. ICC membership will potentially pave the way to investigations and prosecutions over crimes committed by Palestinians. Accession to the ICC would also potentially target high-ranking Israeli officials suspected of crimes under the jurisdiction of the Court. Another issue that the Court will have to deal with is statehood recognition and whether Palestine indeed is a state falling under its jurisdiction.

In this regard, as has already been pointed out by the Prosecutor in August last year, the prosecution most likely will base its case on UN General Assembly resolution 67/19. Judging from a letter written by the Prosecutor to the Palestinian Authorities in September last year, it actually seems very improbable that the Prosecutor will reach any other conclusion. The main difficulty however, will be to define the Court’s territorial jurisdiction given that Palestine is an occupied territory (see ICJ advisory opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004).

These issues are only the tip of the iceberg, a new Pandora’s box has been opened in the Middle-East conflict that due to its long-lasting unresolved nature already represents a recurrent failure of the current global order. The new situation will generate several political and legal challenges for all parties involved, but in particular for the ICC. The court will most likely face three major challenges, adding to its existing struggles.

The first challenge for the ICC will be for the OTP to determine after a preliminary investigation (and later to challenge before a Pre-Trial chamber in order to open an investigation) that crimes were committed not only under its jurisdiction but that they were serious enough to call the attention of the Court. As expressed in theOTP’s Prosecutorial Strategy, the Court’s limited resources force it to engage in focused investigations – that is, focusing on the most serious crimes and those bearing greater responsibility to increase the possibility of expeditious trials. Moreover, a preliminary investigation would trigger the positive complementarity mechanism whereby the ICC is seen as a Court of last resort acting only when the state in question is unable or unwilling to investigate and prosecute. By doing so the drafters of the Rome Statute wanted to encourage genuine and in good faith national proceedings while scrupulously monitoring them (See art. 17 of the Rome Statute). For this reason preliminary investigations can take years as exemplified by the highly politicized situations of Georgia and Afghanistan.

The second challenge is directly linked to the first. With no cooperation from the states concerned, nor the international community, there is little the ICC can do, such as carry out meaningful investigations or the execution of arrest warrants, as exemplified by both the collapse of the Kenyatta case and the temporary halting of the investigation on the Sudan situation last year. The self-evident political tensions between Israel and Palestine would threaten the Court’s credibility, because a lack of cooperation could be perceived as a failure of the Court rather than by the countries involved.

The final challenge regards the political impact of the Court on the ground and whether opening investigations would actually have a deterrent effect for the commission of further crimes by either side to the conflict. In other words, could Palestinian membership to the ICC actually help achieving peace in the region? It is possible, under these circumstances, that both sides to the conflict would think twice before engaging in armed conflict. But this remains to be seen.

These are daunting challenges and the Court will only be able to master them in cooperation with the other parties involved and with the support from the international community.

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