A Brief Note on Palestine's Bid to Join the ICC and Have War Crimes in Occupied Territories Probed

It has been reported recently that the Palestinian Authority (PA) has made a bid to join the Rome Statute and thus recognise and be recognised by the International Criminal Court, and that this move has been recognised and affirmed by the U.N. general secretary, who have stated that the State of Palestine will join ICC by April 1 this year. ICC itself has welcomed this move by the PA as being consistent with the ICC's general striving to make the Rome Statute and the ICC universally recognised as a legitimate international legal institution. As an immediate effect, the ICC has opened a preliminary investigation of war crimes committed in the Israel occupied Palestinian territories since June 13, 2014 – as that is the date from which the PA has accepted ICC jurisdiction in its ratification of the Rome Statute (see also here and here).

As before, Israel and the USA has reacted strongly against this sort of development (see here and here). The basic point of the rhetoric this time is that it is a "tragic irony", that Israel or Israeli forces possibly might be found guilty of war crimes when Israel and Israelis have in the past been victims of terror attacks. As I have commented on similar responses from Israel and USA before, however, this is wholly hollow words. First of all, none of these states have ratified the Rome Statute, and thus do not recognise the ICC in the first place – what is more, both states have actively withdrawn former intentions to recognise the ICC (here, here), thus clearly declaring that they do not, repeat not, belong to this particular club in international politics. But this also means, that they have no say whatsoever on ICC policy - that is the choice you make when not becoming a member. Both the US and Israel could have ratified the Rome Statute, in Israel's case this used to be the intention until 2002, and thus have the court probe whatever terror activity of other states instigated against them. They have however, voluntary chosen not to, so whatever "irony" is present here is of purely Israeli and US manufacture. To this may be added, that these choices most likely were made to able to "get away with" violent actions on foreign (or occupied) soil.

Moreover, this criticism fails to recognise the elementary fact that the PA move will also mean that any action from Palestinian territories towards Israel will be open to prosecution. This aspect has been deliberately blinkered by the Israeli government propaganda before as well. That is, to the extent that there are war crimes being committed towards Israel from PA territory, these are now – thanks to the PA bid to join ICC – possible to prosecute under international law. In other words, Israel cannot validly argue that this expansion of ICC jurisdiction is a one-sided action against Israel. What does remain, of course, is that Israel is unable to demand that ICC prosecutors open investigations into such things, since Israel has actively chosen to stand outside the ICC. But, then again, this situation could be easily remedied if only the Israeli government chose to reverse its past withdrawal and ratify the Rome Statute.

So much for rhetoric and propaganda. But how should the present development be assessed from the standpoint of someone who desires increased stability, peace and justice for the people burdened by the seemingly never ending conflict in this region? My own assessment, for the time being, is this: The bid of the PA to join ICC is a good thing, as it puts pressure on the violent extremists on both sides to temper their actions, and on both states to actively restrict the ability of these groups to keep on to sabotage the peace process – and fuel the support of each other. This will also mean that political movements such as Hamas and its more or less openly aligned violent branches, will have to chose a more moderate political course, or face the force of international justice – this will go for, e.g. the Likud party in Israel and the various religious fundamentalist extreme right wing groups allied with it as well. It is obvious that all of these groups have self-interested reasons to resist the current course of development – much of their support arises out of a reality where violence prevails and both sides can point to each other as the rationale for their own excesses. This also goes for their respective financial bases – the dignitaries of each of these political organisations living comfortably thanks to the prolonged and deepened violent conflict, while the overwhelming majority of people on both sides suffers the consequences. My own hope is that, when spirits have settled down a bit in Israel – as it may do also due the obvious counter-productivity and self-destructiveness of the current policy – its government chooses to join the ICC as well, further strengthening the bonds holding back extremist violence while also restricting its own actions in the occupied territories. That would, indeed, be a wide step forward for anyone interested in sustainable peace and the interests of ordinary people in the region.

The Pathetic Hypocricy of Israel and USA on Palestinian ICC Plans to Probe War Crimes in Gaza

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.