A Pyrrhic victory?

Accession to the International Criminal Court may boost Palestinian national pride but it could backfire.

By ROBBIE SABEL
The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)
THE PALESTINIAN accession to the Rome Statute of the International Criminal Court (ICC) came into effect on 1 April and the court now regards Palestine as a full party to the statute.
This follows earlier unsuccessful attempts to obtain such recognition and is a result of intensive legal and political preparation by the Palestinian Authority. The PA set up a special internal committee to prepare its case and consulted with international experts including controversial Canadian law professor William Schabas, who is considered a leading authority on the subject. (Schabas recently resigned as head of the UN probe into the 2014 Gaza war when evidence of his professional relationship with the Palestinians surfaced.) The accession of Palestine to an international court no doubt boosts Palestinian national pride and provides a special feeling of satisfaction at joining an international judicial body to which Israel is not a party.
The Palestinians, who traditionally see themselves as the underdog in their dispute with Israel, have developed a strategy of seeking support from international institutions as a counterbalance to Israel’s military and economic superiority. Having Israel’s alleged crimes investigated by an international juridical body must inevitably give them a feeling of satisfaction at Israel’s expense.
But how effective is this legal avenue of attack likely to prove? The ICC has jurisdiction over any war crime committed in the territory of a state that is a party to the Rome Statute. If the question of territory arises, Palestine will presumably ask the court to recognize the West Bank, East Jerusalem and the Gaza Strip as its territory.
The Rome Statute has a list of grave war crimes which includes, “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” The phrase “or indirectly” does not appear in any previous treaty concerning the laws of war and was added to the text of the Rome Statute at the initiative of the Arab States, who openly declared that it was intended to criminalize Israel’s settlement policy. Even if the Palestinian authorities refrain, for political reasons, from filing a complaint against Israel, the ICC can investigate an alleged crime on the basis of information available to it. One can assume that there will be an abundance of NGOs and individuals who will rush to provide the ICC with information on Israel’s alleged crimes.
Israel’s settlement policy in the West Bank has no international support and, if it can also be categorized as a grave war crime, this would be politically significant for the Palestinian cause. Any success in associating Israel’s military operations with the conduct of war crimes could incrementally augment Palestinian attempts to delegitimize Israel. The fact that the ICC prosecutor is now conducting preliminary investigation of possible Israeli war crimes could therefore be seen as a significant political achievement for the Palestinians.
Nevertheless, they will most likely find that, ultimately, their involvement with the ICC will prove to be ineffectual and even harmful to their cause. The court has, up to now, dealt with crimes such as mass murders, mass rapes and mutilations. The preamble to the Rome Statute refers to “unimaginable atrocities that deeply shock the conscience of humanity” and “the most serious crimes of concern to the international community as a whole.”
Israel’s settlement policy has been categorized by the US as harmful to the peace process and is widely regarded as controversial.
The issue, however, is clearly of a political not criminal nature, bearing as it does on where the future boundary between Israel and a Palestinian state will be drawn.
The ICC has an enormous backlog of cases, its prosecutors are inundated with complaints of alleged crimes and the work process of the ICC is subject to widespread criticism. In the 12 years of its existence, there have been only two convictions. It is highly unlikely that the ICC will want to get itself embroiled in this highly political issue, which would be clearly beyond its mandate as a criminal court.
It would mean, for instance, that the court would have to make a decision as to whether East Jerusalem is the occupied territory of a Palestinian state. This would be a particularly difficult conclusion to reach since East Jerusalem has never been under Palestinian jurisdiction and was under Israeli rule years before the Palestinians declared themselves to be a state.
If the court were to rule that the Israeli settlements and East Jerusalem are at present under the jurisdiction of Palestine, it would not only have to deny reality but also to overcome weighty legal issues. The Oslo agreements signed by the PLO and Israel explicitly exclude Jerusalem and the Israeli settlements from PA jurisdiction for the interim period, that is, until a final status agreement is reached.
THE PLO agreed that these two issues would be subject to negotiations between Israel and the PA. It would be difficult for the ICC to adopt a contrary position whereby they are to be considered, as of now, part of the Palestinian state, artificially placing the settlements and East Jerusalem under Palestinian jurisdiction.
A further legal difficulty facing the court on the settlement issue would be whether Israel’s settlement policy constitutes a crime as set out in the Rome Statute. There has never been a prosecution for such a “crime” in any national or international court. No investigation of a crime has been instigated, for example, as a result of Turkish settlement in Northern Cyprus, although the EU regards it as Cypriot territory under Turkish occupation.
The phrase “transfer of population” implies that there must be an involuntary transfer. This interpretation is strongly reinforced by reference to the same article in the Rome Statute, which classifies as a crime “the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”
Clearly the word transfer here refers to involuntary transfer and the word “transfer” must be given the same consistent meaning when used twice in the same article.
The Palestinians have also stated that they want the ICC to investigate “Israeli war crimes” during military operations in Gaza. This raises the issue whether, in fact, Gaza is at present within the jurisdiction of the Palestinian state.
Perhaps even more salient is the ICC’s stated policy to investigate the behavior of all parties to a conflict once an investigation has started. There is no doubt whatsoever that Hamas committed grave war crimes by deliberately targeting Israeli civilians and civilian installations, and by using their own civilian objects, including mosques, schools and even hospitals for military purposes.
Israel has collated evidence of such crimes and even an NGO like Amnesty International, not known for any pro-Israel bias, has confirmed that Hamas committed grave war crimes. The individual Hamas members and their commanders may be indicted for such crimes but if, as the Palestinians claim, Gaza is under the jurisdiction of Palestine, then the interesting question arises as to possible command responsibility of the Palestinian leadership.
Israel, on the other hand, made strenuous efforts to avoid heavy Gaza civilian casualties.
It did so because of its own human rights principles, legal restraints, humanitarian considerations and for the very practical reason that enemy civilian casualties provide no military gain and grant Hamas a public relations advantage in terms of international public sympathy.
The Israeli authorities, at their own initiative, investigated the few cases where Israeli soldiers allegedly misbehaved or used excessive force. Under the complementarian rules of the ICC, once a state has in good faith investigated or prosecuted alleged offenders, the ICC lacks jurisdiction. Needless to say, Hamas has not investigated or prosecuted any of its fighters for attacking Israeli civilian targets.
The final consideration for the Palestinians should be the possibility of US sanctions under the “Consolidated and Further Continuing Appropriations Act of 2015,” which requires cutting off funding to the PA for initiating or supporting ICC action against Israeli nationals.
In conclusion, the ICC is extremely unlikely to go into the question of settlements, a highly political issue beyond its mandate.
And if it investigates the conflict in Gaza, it would inevitably have to refer to Hamas war crimes.
Accession to the ICC may have given the Palestinians a feeling of satisfaction, but it has done nothing to enhance their presumed goal of achieving a viable independent state with agreed boundaries. 
Robbie Sabel is a professor of international law at the Hebrew University of Jerusalem and a former legal adviser to the Foreign Ministry