If Palestine joins the ICC, then what?

Although it is uncertain whether the step to join the ICC will lead to peace, it is certainly a peaceful step.

By BIRTE BRODKORB
January 25, 2015 21:56
The Hague

The entrance of the International Criminal Court (ICC) is seen in The Hague. (photo credit: REUTERS)

The Palestinian bid to join the International Criminal Court (ICC) has triggered debates regarding whether the ICC will accept the request, whether it will launch investigations into the situation in Israel and the Occupied Palestinian Territories, and which specific acts the ICC may prosecute. However these debates fail to address the probable effects of this strategic move and how it will influence the Middle East conflict.

Certainly, not just a future possible intervention by the International Criminal Court, but already the Palestinian move to join the Rome Statute itself, may affect the conflict, very likely in a positive as well as in a negative way. The request may impair the peace process as is claimed by many opponents to the Palestinian bid. On a positive note, the ICC’s coming into play may change the way the conflict is carried out between the parties in such manner, that the opponents avoid the commission of further acts that falls under the Court’s jurisdiction.

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One must distinguish between two different scenarios, each of which may influence the Middle East conflict. The first is simply the acceptance of Palestine as an ICC member state. The second is the possible initiation of investigations - or even a trial - regarding the situation in Israel and the Occupied Palestinian Territories.

The ICC does not examine individual cases but rather the “overall situation”. Thus, if the ICC accepts the recent request and Palestine joins the Court as a new member state, not only will acts committed by Israeli officials be under scrutiny, but also those committed by protagonists of the Palestinian Authority and Hamas.

These actors will have to consider their future actions, such as killing civilians or constructing settlements, in the light of possible investigations or trial. As the ICC does not prosecute a state, but holds responsible individuals committing acts considered as international crime, the mere membership of Palestine in the ICC will influence decision makers concerning orders that constitute such acts. In the theory of criminal law, this is called a “deterrent” preventive effect. In the aftermath of the Palestinian request to join the ICC Benjamin Netanyahu declared a severe response to the Palestinian move, including the withholding of Palestinian tax money. However, the response does not, as is often the case, include the construction of more settlements - perhaps the deterrent effect is already showing an impact.

Palestine joining the ICC may also propel the conflicting parties to avoid ICC jurisdiction by launching domestic investigations into incidents that violate international law. The ICC’s jurisdiction is based on the “complementary” principle, meaning that it may only open investigations in cases in which the state itself does not prosecute the relevant acts. This may drive both sides to launch judicial proceedings within their own legal systems. Yet, when criminal acts are state practice, such as the construction of settlements or the targeting of civilians, it is unlikely that Israel or the PA will open judicial proceedings. Hence, the path to the ICC is open.

A subsequent scenario could be that its prosecutor will actually initiate investigations regarding to the situation in Israel and the Occupied Palestinian Territories and that the Court will launch a trial against individual members of the conflicting parties. Such investigations do not have to be initiated by Palestine.

Every member state of the Rome Statute may refer the situation to the prosecutor and the prosecutor may open investigations by him- or herself.

The opening of investigations, however, is a less likely scenario than the mere acceptance of Palestine to the ICC. Should the ICC open investigations and hold a trial against relevant individuals from each party, this again may have both beneficial and adverse implications. First of all, the court will collect evidence on the incidents and acts that occurred. Documents will be filed and archived, examinations recorded, witnesses heard, and other evidence gathered. Irrespectively, whether and how these exhibits will be used for the proceeding, the investigation will create an historic documentation, by a third party, of the events occurring in Israel and the Occupied Territories. International criminal proceedings also give a voice to victims of grave state atrocities. Those who have suffered from unlawful acts on both sides would receive public acknowledgment.

Eventually, in addition to Palestine merely joining the ICC, prosecution or even a trial will have a preventive effect on the conflict. On the one hand proceedings will put an end to impunity of those responsible for unlawful military actions and political decisions.

They will deter those currently in power from committing or ordering acts considered international crimes under the Rome Statue and promote lawful means of action - detached from mere domestic political strategies. The Middle East conflict may not come to an end by Palestine joining the ICC; however, the means of combat may change from violent to political means.

Furthermore, the fact that unlawful acts are not left unpunished may strengthen trust in the functioning of the judicial system, values of human rights and the rule of law within both societies of the conflict, as well as within the global legal community, in the sense of a “positive preventive” effect.

On the other hand, paving the way to international justice may endanger the negotiations towards a peace process that will bring a sustainable political solution for the region, at least, when considered from a quixotic point of view. Negotiations on a peaceful solution have failed or been stuck for years. Moreover, as long as the progress of the peace negotiations is determined by internal political power and rather than with the intention of ending the conflict, a supranational organization like the ICC - despite criticism regarding its lack of impartiality - is the more advantageous solution. The US State Department declared the Palestinian bid an “act of escalation”. And surely, considering the fierce statements made by Israel and the US in response to the move, it seems like one. But in the long run, Palestine joining the ICC will lead to less escalation, less violence, fewer human rights violations and it may even bring the two sides back to the negotiations table.

Although it is uncertain whether the step to join the ICC will lead to peace, it is certainly a peaceful step.

The author is writing a PhD about International Criminal Law. She studied law and passed the bar examination in Berlin and holds a Master’s degree in Criminology and Criminal Justice from King’s College London.


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