HUFFINGTON POST
01/24/2015 01:00 pm ET

Expert Weighs In On What Palestinian Membership In The ICC Really Means

ABBAS MOMANI via Getty Images

Every week, The WorldPost asks an expert to shed light on a topic driving headlines around the world. Today, we speak with Dr. Sarah Nouwen on what Palestinian membership means for the International Criminal Court, and the nature of international law.

Founded in 1998 and situated in The Hague, the ICC is held to be the international community's last resort for bringing to justice those who commit crimes against humanity. On New Year's Eve 2014, President Mahmoud Abbas signed the papers officially allowing Palestinians to join the court, with the intent to bring claims against Israel.

The move was met with harsh criticism from the U.S. and Israel, which would only grow more intense when the ICC announced on Jan. 16 that it was launching an examination into possible war crimes in Palestinian territories.

To understand why this is such an important event, as well as how the wheels of justice turn at the ICC, The WorldPost spoke with international legal expert Dr. Sarah Nouwen. A lecturer in law at the University of Cambridge, Nouwen is the author of the book Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan.

What would you say is the likelihood that Israelis or Palestinians would actually be prosecuted?

That question requires looking far into the future. Right now the ICC has only opened a preliminary examination; it has not opened an investigation yet. What the court does during a preliminary examination is first look at whether there is reason to believe that crimes have been committed that fall within its jurisdiction: substantive, temporal, personal and territorial.

The court also needs to consider if these crimes have not been, or are not being, genuinely investigated and prosecuted in a domestic court. Then it also has to look at the gravity of the crimes, whether they are grave enough. Finally, it has to look at any reasons that an investigation would not be in the interests of justice, which is a concept that so far has never obstructed the opening of an investigation.

If you look at other cases in the world, these preliminary examinations can take very long. In Colombia the preliminary examination has been going on for more than 10 years and the ICC has still not opened a formal investigation. The ICC is still giving Colombia a chance to address impunity domestically. You also see that the ICC is particularly slow in opening a formal investigation if it is politically risky to open one, and this could apply to Israel-Palestine.

Is there a potential for a legal backlash against Palestinians because of their membership in the court?

The risk of a backlash from the perspective of the Palestinians is there, and I would say particularly so for Palestinian non-state actors. So far we’ve seen the court be more successful in going after non-state actors than in going after government officials.

How might this move affect the way Israel and Palestine wage war?

The Palestinian accession to the Rome Statute [to the treaty that established the International Criminal Court] illustrates that the involvement of international criminal law is not a replacement of politics; it is a continuation of politics by other means. It's an example of "lawfare," where you continue your war on legal grounds, or in the language of international law. This observation does not denounce the ICC as a political institution, but the ICC cannot escape being implicated in the political conflict.

By issuing arrest warrants, the ICC is seen to brand people as enemies of mankind. This is of course a very powerful weapon to parties in a conflict, even though they do not control the weapon. They can say "you are not just my enemy but an enemy of mankind, because you have committed crimes against humanity."

Do you see the use of the ICC as something of a political weapon as a potentially dangerous development, or is that inescapable?

I think it’s inescapable, so what we should evaluate is not whether it’s political in this sense or not; it will always be used to pursue political goals. What we should ask is, does the court reach the outcome we want to achieve? Of course, the question is who the "we" are: What people will want to achieve will be different depending on which side you’re on.

What capabilities does the ICC have in terms of enforcement?

The ICC doesn’t have its own army, it can’t go in to enforce an arrest warrant. That said, it has now 123 state parties that are legally obliged to cooperate with the court. If a person for whom an arrest warrant has been issued travels to a state party, then that state party is obliged to execute that. Now, whether they comply is a different question. We have seen in the case of Sudan that President Bashir has traveled even to states parties, and that these states did not execute the arrest warrant, mostly for political reasons.

The ICC, in terms of enforcement, is as strong as states want it to be. To give an example, the U.S. is sometimes in favor of the court and sometimes against. It is in favor of the court when it suits its foreign policy -- for instance, with respect to [Joseph Kony's] Lord’s Resistance Army, it helped in the transfer of [LRA Commander] Dominic Ongwen to the ICC this week. Yet at the same time it has objected to the role of the ICC in the Israeli-Palestinian conflict.

What implications does the Palestinians' move to join the court have on the Israeli and Palestinian legal systems?

I think the assumption of many is that it will have an impact on the Israeli and Palestinian systems, and that’s mostly because the court is governed by what is called the principle of complementarity. This means that the ICC is not allowed to exercise its jurisdiction if a case is being, or has been, genuinely investigated and prosecuted at a domestic level.

In other words, if Israel or Palestine investigate themselves each and every alleged crime within the court’s jurisdiction committed in Palestine, the ICC may not exercise its jurisdiction. Complementarity could be, in that sense, an incentive for both sides to investigate and prosecute crimes domestically.

What makes the court say "this is a legitimate domestic investigation"?

The domestic investigation would have to cover the same case that the ICC would want to do. So you would have to investigate the same persons as the ICC would be interested in, and the same types of conduct that the ICC would charge. In that sense, it has been very strict with respect to the scope of the domestic investigation.

However, it has not been -- and statutorily need not be -- strict in requiring that the procedure is similar to the international procedure, for instance when it comes to fair trial standards. The domestic legal system of states may deviate from the ICC system.

What impact could an ICC investigation of potential Palestinian complaints have on the court itself?

The Palestinian membership and its declaration of acceptance of jurisdiction have focused all eyes around the world on the ICC. For a long time the ICC has been criticized for focusing exclusively on Africa, and while it has opened preliminary investigations elsewhere in the world, it hasn’t moved on them.

In a lot of situations where the ICC would obviously be relevant, such as Syria and Palestine, it did not have jurisdiction. Now it does have jurisdiction with respect to Palestine and no excuse for an exclusive focus on Africa. And indeed, the court has immediately opened a preliminary examination into Palestine.

But the court is on very dangerous territory. First of all politically, because there is so much opposition from some great powers in the world against the ICC’s potential action in Palestine. Secondly, because the chances for cooperation from the Israelis are of course zero, and we’ve seen in other countries where the ICC has not had cooperation that it's had difficulties in its proceedings.

Is that a threat to the legitimacy of the court and the rule of international law when these issues arise?

I don’t think that it is a threat to the legitimacy of the court. There’s a lot of unfairness when it comes to how the court is assessed internationally. Whenever the ICC fails to get people in custody, it is often considered "a fatal blow to the court," and the court is said to be weak. However, the ICC itself is not responsible for the execution of arrest warrants.

The ICC is responsible for thorough investigations of prosecutions. If people are acquitted or charges are not confirmed due to a lack of evidence, then people can say the ICC has not done its work, but when people aren’t arrested that is the responsibility of states.

How do you assess the court’s ability to promote peace building in the context of the Israeli-Palestinian conflict? Does this differ from how it has attempted promote peace building in Africa?

It’s a fascinating question. Here you clearly see the double standards that the West has applied with respect to the role of the ICC in political conflicts. In that sense, the Palestinian membership of the ICC is a fundamental moment for a reevaluation for the role of international criminal law in political conflict. In respect to Africa, the West and particularly Europe has taken the view that there can be no peace without justice. They hold that international criminal justice must be done, even if the consequence is that a peace process may fall apart. With respect to Israel-Palestine, however, they argue that a political solution is required and that the ICC will not help.

Similarly, African states have been denied development aid by the EU if they did not support the ICC. With respect to Palestine, you see the opposite. The U.S. has said that they would withhold funding from Palestine if it accedes to the Rome Statute.

So with respect to some countries it was argued that international criminal justice must be applied irrespective of the consequences, whereas with respect to Israel-Palestine it was argued a political solution is required, not international criminal law. This is the moment for a thorough and empirical reevaluation of the role of international criminal law in the resolution of political conflicts.

This interview has been edited and condensed for clarity.

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