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What admitting Palestine to the International Criminal Court means

At the Israeli separation barrier in Bethlehem, Palestinians watch a projection of Mahmoud Abbas speaking at the UN General Assembly before a November 2012 vote that paved the way for ICC membership. EPA/Abed al Hashlamoun

2015 began with Palestinian leaders having submitted the paperwork to become signatories to the Rome Statute, the document that governs the International Criminal Court (ICC). Last week, United Nations Secretary-General Ban Ki-moon confirmed that Palestine will officially be a member of the court from April 1.

While the Palestinian Authority had made clear for some time the intention to join the ICC, Palestine’s accession has nonetheless caused waves. Membership raises several important issues.

Implications for statehood

The first concerns Palestine’s status as a state. Article 12 of the Rome Statute makes it clear that only the UN Security Council or a “state” may provide jurisdiction for the ICC.

This is not the first time the Palestinian Authority has sought involvement of the court in the Israel-Palestine conflict. However, then-chief prosecutor Luis Moreno Ocampo denied this earlier request on the grounds that until the UN deemed Palestine a state, the ICC could not accept a request on its behalf. Thus the November 2012 decision by the UN General Assembly to grant Palestine status as a non-member observer state served as the catalyst for current chief prosecutor Fatou Bensouda to accept Palestine’s application.

The European Parliament recently voted for qualified recognition of Palestinian statehood, following similar votes by several national parliaments. Unsurprisingly, Israel and the US still refuse to recognise an independent Palestinian state (and thus Palestine’s right to join the ICC). The US reaffirmed this position when declaring that Palestine is not a state and “does not qualify to join the ICC”.

While predictable, such criticisms are churlish and hypocritical. As long as Israel and the US continue their refusal to join the ICC, their objections should be given short shrift.

Also, given the current status of the peace process, claims by the US that Palestine’s actions will damage it are absurd. As has been pointed out, Israel has been so resistant to reaching a peace deal that applying for ICC membership was the only option left for Palestinians to bring greater international pressure to bear on Israel.

Consequences for violent conflict

While Palestine’s accession to the ICC will certainly not resolve its status as a state, it will have an effect on how belligerents are held to account for their actions. That, in turn, will affect the nature of the violence in the conflict.

Signing the Rome Statute opens up Palestinian territory to ICC investigations. The temporal and geographical limitations established by the Rome Statute mean that only incidents occurring in Palestine can be investigated. Also, in accordance with Palestine’s accession, the court’s intervention is limited to incidents that have happened since June 13, 2014.

Benjamin Netanyahu points out that ICC membership also means Palestinians could be brought before the court. EPA/Gali Tibbon

Joining the ICC represents a victory for Palestinian Authority President Mahmoud Abbas, but membership is double-edged. While the court can now investigate incidents involving the Israeli Defence Forces (IDF), the same is true of incidents involving Hamas. Israeli Prime Minister Benjamin Netanyahu was swift to make that point.

Palestine cannot “take” Israel to the ICC – it is not a civil court. Rather, the Office of the Prosecutor (OTP), as with all situations that the ICC investigates, will continue to determine whether cases should proceed or not. Finally, the ICC “is complementary to national criminal jurisdictions”, meaning it is a court of last resort.

Therefore, it is unlikely that we will see a procession of Israeli and Palestinian officials in The Hague in the immediate future.

This is not only because the wheels of international justice move slowly. The sensitivity associated with the conflict means the OTP will need to be especially prudent and politically shrewd. To avoid the expected (yet trite) claims of bias against Israel, the OTP could do worse than prioritise an investigation into Hamas’ use of rockets against civilians.

Nor is Palestine’s membership of the ICC likely to bring an immediate end to the conflict. The ICC’s involvements in Democratic Republic of Congo, Central African Republic, Uganda and Mali have done little to end the horrific conflicts in those states.

Extending the reach of law

Nonetheless, the magnitude of these most recent events should not be underestimated. First, Palestine’s accession to the ICC serves to extend the reach of legality to the Israel-Palestine crisis.

This long and bloody conflict has borne witness to numerous violations of the laws of war, which have mostly gone unpunished. Palestine’s ICC membership provides for the possibility that this will no longer be the case.

Finally, Palestine’s membership expands the court’s jurisdiction. One of the major criticisms of the ICC is that, up to now, it has investigated only situations in African countries.

While I’ve argued before that this is not necessarily an issue in and of itself, the greater problem with the ICC is its inability to investigate major conflicts where flagrant violations of the laws of war have occurred. These include, but are not limited to, the ongoing war in Syria, the recently concluded conflict in Sri Lanka and, up to now, the Israel-Palestine conflict.

Palestine’s membership of the court, while certainly no panacea for the conflict, is a significant development. Not only does it represent a further expansion of legal authority in the international sphere, it specifically allows the ICC to do exactly what it was established to do:

… end impunity for the perpetrators of the most serious crimes of concern to the international community.

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