THE BLOG
09/17/2014 04:06 pm ET Updated Nov 17, 2014

Palestine and the ICC

The question of Palestinian membership in the International Criminal Court has become a battleground in the Israel-Palestine conflict. For months the Palestinian Authority has been threatening to join the ICC. Israel and its Western allies are vigorously opposed to this and have threatened to withdraw financial aid from the PA if it pursues membership. The US senate, for example, debated legislation in 2012 that would cut off millions of dollars in assistance to the PA, and the EU has reportedly said it will withhold aid for re-building Gaza after the latest assault, if the PA were to bring a case against Israel. As a result the PA has delayed joining the Court and instead has been using the threat of membership to try to extract concessions from Israel; for instance, the ICC was reportedly discussed during recent negotiations over a Gaza ceasefire.

But in the midst of this controversy it is easy to lose sight of some basic questions: Why is Palestinian ICC membership so important and what has Israel to fear from it? The answer is that the ICC can try persons of any nationality for crimes committed on the territory of the states that have signed its Rome Statute. This means that, were Palestine to join the Court, Israeli leaders could be prosecuted for war crimes and crimes against humanity committed in the West Bank and Gaza, even though Israel is not a member of the ICC.

Nor would an ICC investigation be limited to Israel's military operations such as its attacks on Gaza. Other Israeli practices that result in the severe or systematic violation of Palestinian rights like the construction of settlements and the appropriation of Palestinian land could be prosecuted. The court might reach the same conclusion as a 2009 legal report commissioned by South Africa's Human Sciences Research Council that Israel's occupation regime itself amounts to a form of apartheid -- an offense under the Rome Statute.

A case could therefore go a long way to addressing the impunity enjoyed by Israel for its violation of Palestinian rights. It would also allow for many of the claims Israel makes about the ways it conducts its wars to be challenged in an impartial judicial setting. For example, Israel's assertion that that it does not target civilians and that the high death toll in Gaza is due to Hamas's use of civilian human shields would be subjected to scrutiny, as well as Israel's dubious interpretation of the laws of war in which 'self-defense' justifies the infliction of disproportionate damage in Gaza, and the lines between what are military and civilian targets are blurred.

By providing an opportunity to examine the legality of Israel's occupation regime, an ICC case might also support wider Palestinian claims about the conflict; a decision by the Court that the occupation entails the institutional, systematic violation of rights would bolster the Palestinian assertion that it is illegal and must end.

But it is far from certain that ICC membership would actually result in the trial of Israeli leaders. For a start, the Court would come under pressure from Israel's Western allies not to pursue a case against Israel. Indeed former ICC officials have reportedly claimed that the Court's failure to move forward on a Gaza war crimes case is the result of political pressure from the US and its European allies. Although the current ICC prosecutor, Fatou Bensouda, has denied this is the case, the Court is susceptible to outside pressure, given its need to maintain good relations with major powers, especially the US, in order to be able to effectively conduct its work.

There are also difficult legal issues the Court would have to resolve before a case could go ahead. Lawyers are divided, for instance, about when the Court's jurisdiction over Palestine would begin. And the Court has not to date prosecuted the sorts of crimes typical of Israel's occupation which occur over long periods in an institutional setting, such as settlement construction or apartheid. It would have to grapple with the complex issues that arise in prosecuting such offenses without the benefit of legal precedent, since these crimes have never been litigated before. And even if the ICC reached the stage of issuing arrest warrants against Israeli leaders, it would still have no way of enforcing them.

But perhaps none of this really matters, for the question of ICC membership has clearly taken on a wider significance. For Palestinians it has come to symbolize a form of resistance against Israel -- a way to pursue rights and to strive to achieve Israeli accountability. Polls show that many Palestinians want the PA to go to the ICC, and even Hamas which might be at risk of prosecution for the rockets fired from Gaza has urged the PA to join the Court. Meanwhile, Israel and its Western allies understand the harm an ICC war crimes investigation could do to Israel's international standing, already eroded by its assault on Gaza, and are therefore determined to prevent it.

Were the PA to join the ICC and initiate a case against Israel, rather than merely using the threat of ICC membership as a bargaining chip in negotiations, it would be adhering to a strategy long advocated for by Palestinian civil society to stop relying on endless negotiations with Israel to achieve rights, and instead to use mechanisms of popular pressure -- legal action, boycotts, protests -- to advance Palestinian national aims. The real question is whether the PA has the courage or the political will to join the ICC in spite of the risk of Israeli-Western retaliation.