I've touched before on the hypocritical attitude of the USA regarding the activities – or lack of activities – of the International Criminal Court, ICC with regard to international conflicts: here and here. In that case, the conflict in question pertained to Syria. Now, a few days ago, there were news of an official visit of the foreign minister of the Palestinian Authority, Riad al-Malki, to the ICC prosecutor, Fatou Bensouda, where the former urged the ICC to probe alleged war crimes of Israeli soldiers, IDF high officers, state officials and politicians during the recent and ongoing attacks in Gaza, to date resulting in around 2 000 dead, among which are many civilians and children, many more injured and material destruction of vast proportions (here, here, here).
Related to past Israeli attacks on Gaza, such petitions have ended in nothing, as the ICC have found the legal status of the Palestinian Authority to be uncertain. It has been commented that, in order for the ICC to move on this issue, the PA needs become a member of the ICC, and only states can be such members (here). However, in 2012, the UN general assembly voted with a large majority to recognise the PA as a de facto state, albeit not a UN member (here, here, here). This is now used as a stepping stone by the PA to move for membership of the ICC (see also here) – to sign the Rome statute – thus recognising the court's authority, becoming party to its actions and be bounded by its decisions. To quote a report from Reuters (linked to above):
If the Palestinians were to sign the ICC's founding treaty, the Rome Statute, the court would have jurisdiction over crimes committed in the Palestinian territories.
With Palestinian authorization, an ICC investigation could then examine events as far back as July 1, 2002, when the court opened with a mandate to try individuals for war crimes, crimes against humanity and genocide.
Of course, what such probes and possible prosecutions against Israelis would lead to is entirely up to the prosecutors and judges of the court. For a number of reasons, one of which is about evidence, it may end up in nothing. However, it must be observed that any such probe might also uncover war crimes committed by the PA or the Hamas-controlled Gaza leadership, their officers, officials, politicians and soldiers. For instance, the rocket-fire of the Hamas military contingent, The Izz ad-Din al-Qassam Brigades, towards Israeli civilian areas may very well constitute such crimes. Crimes such as genocide are namely not defined by the sheer number of victims, but by the intent behind prosecuted actions (here). In other words, by joining the ICC, the PA opens itself up to allegations and convictions and has bounded itself to comply, including the handing over of any Palestinian wanted for questioning or arrest.
Now, this is certainly not the case regarding Israel or its politicians or personnel and neither is it true of the USA. Both these states stand in the proud company of China, Iraq, Libya, Yemen and Qatar not to recognise the ICC and to have refused signing the Rome statute – in fact, USA has even (under G.W Bush) actively withdrawn a previous signature of then US president Bill Clinton (for sources see my former post). Nevertheless, responding to the move of the PA towards ICC, Israeli PM, Benjamin Netanyahu, has officially asked the US to help Israel to avoid ICC actions (see also here and here) and a White House representative has responded that the US will support the Israeli case in this respect. These attitudes of both Israel and the USA are not only hypocritical – if they want to have a say over the ICC, they should join it and recognise it – it is pathetically so. Both of them wants to eat the cake and have it, to get the goods without paying the price.
Exactly how pathetic these moves by the Israels state and the US are is revealed by Netanyahu's stated concern of Israel being held to a "double standard" visavis Hamas. As just described, it is in fact Israel's persistent refusal to join and recognise the ICC which creates a double standard – in Israel's favour. For while the PA moves to join, thus empowering ICC to probe and prosecute actions on its territories and charge and arrest its citizens, Israel is not (and neither is the USA). As long as Israel reserves this (doubtful) legal privilege, it is Netanyahu and the state that he is currently running that actively upholds a double standard towards all those states realising the value and import of solid international law instruments pertaining to war crimes and crimes against humanity and recognising the ICC – among them, should they join, the state of Palestine, represented by the PA.
In conclusion, if Israel and the USA really wants to work for an adequately functioning ICC and secure lack of double standard in its actions, they should both immediately sign the Rome statute and recognise the jurisdiction of the International Criminal Court. Then, there would be some clout behind their present claims.