The real question therefore becomes: Does the PA have the political will to pursue a case against Israel, despite pressure from Israel and its Western allies not to do so? If past behavior is any indication, one must be skeptical: the PA has a track record of failing to use international legal mechanisms to achieve Palestinian objectives. Joining the ICC is undoubtedly a positive development in the Palestinian pursuit of legal accountability for Israeli crimes. The ICC prosecutor will be able to open investigations despite the fact that Israel is not a member of the Court. The Court’s jurisdiction will cover any crimes committed just over sixty days after the date of Palestine’s accession to the Rome Statute, as well as past crimes, if the PA requests it, back to at least November 2012, when Palestine’s status at the UN General Assembly was upgraded from “observer entity” to “non-member observer state.” Nor would an ICC investigation necessarily be limited to crimes committed in a narrowly military context, such as during the recent attack on Gaza. It could also cover crimes that occur during Israel’s occupation of Palestinian territory, such as the construction of settlements, and could even call into question the overarching nature—and therefore the legality—of Israel’s occupation regime. * * * But none of this is as straightforward as it seems. To start with, there are several legal obstacles to a successful prosecution. Still to be resolved is the thorny question of when the ICC’s jurisdiction over Palestine begins—in 2002, when the Rome Statute first came into force, or only after 2012, when the UN upgraded Palestine’s status? Another difficulty is that the ICC is only allowed to prosecute crimes of “sufficient gravity.” It is unclear at what point crimes that occur gradually, such as settlement construction, reach a sufficient level of “gravity” to merit prosecution. Then there is the issue of “complementarity”: the ICC can only proceed against Israeli perpetrators if it is demonstrated that the Israeli national justice system is “unwilling or unable genuinely” to prosecute the case. At one level, the failure of Israel’s justice system to credibly investigate war crimes against Palestinians is well documented. In 2010, for example, a UN committee of experts found that Israel had carried out no investigations to determine the identity of the senior officials who would have been most culpable for the commission of crimes during Israel’s 2008-09 “Cast Lead” assault on Gaza. But Israel is good at opening preliminary investigations to convey the false impression that it is willing to examine the conduct of its military. For example, Israel ostensibly opened 400 investigations after Cast Lead, but only three minor cases were eventually prosecuted (the harshest sentence was given to a soldier who stole a credit card). Such tactics could delay an ICC case for months or even years. Finally, Israel is unlikely to cooperate with, and could easily disrupt, an ICC investigation. Because it directly or indirectly controls Palestine’s borders, Israel could decide to prevent evidence or witnesses from leaving the country for The Hague, where the ICC is headquartered. Moreover, Palestine could find itself having to hand over to the ICC its own nationals indicted for crimes such as rocket fire from Gaza into Israel, even as Israeli suspects avoid trial by refusing to surrender. But perhaps most difficult are the political obstacles, chief among them the enormous pressure that Israel and its Western allies will almost certainly apply on the PA not to refer Israeli crimes to the ICC prosecutor, a necessary step before a case can proceed. Already in 2010, Israel’s Military Advocate General warned that the Israeli government would view PA pursuit of Israel through the ICC “as war.” Furthermore, Israel, the United States and the European Union have all threatened the PA with the withdrawal of financial aid and other retaliatory measures if it were to join the ICC. The day after Palestine submitted its application, Israel announced that it would withhold the next monthly transfer of Palestinian tax revenue it collects on behalf of the PA, totaling some $127 million. It has also threatened other unspecified “retaliatory steps.” While the United States has not formally stated its position, a law passed by Congress last month stipulates that if the Palestinians initiate any action against Israel at the ICC, the State Department would have to stop American aid to the PA, which comes to around $400 million annually. A senior State Department official has also warned that the PA’s ICC move will have implications for US aid to the PA. It is true that there are other mechanisms for starting a case against Israel, ones that don’t rely on PA action. The prosecutor can open an investigation following a referral by another ICC member state or on her own initiative. But these avenues are also not immune from political interference. The ICC needs the support of powerful nations—especially the United States—to conduct its work effectively, which makes it directly vulnerable to pressure from those quarters no matter who brings a case. Israel and its Western allies could also pressure other ICC member states not to refer Israeli crimes to the Court. In any event, the prosecutor is unlikely to want to pursue a case against Israel without the support and cooperation of the PA.
Posted on: Tue, 06 Jan 2015 19:33:41 +0000
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