The entrance of the International Criminal Court (ICC) is seen in The Hague.
(photo credit: REUTERS)
The world is a different and harsher place for Israel after the Palestinians signed the Rome Statute which probably grants them membership to the International Criminal Court. But the Palestinians still have many hoops to jump through before Israelis (and not Israel as the ICC only deals with individuals) will be seen in the dock at the Hague.
1. The ICC Prosecutor must recognize Palestine as a full member and accept its signature to the Rome Statute. This is not guaranteed since the UN Security Council has not done so, but it probably will as foreshadowed by ICC Prosecutor Fatou Bensouda in a recent related decision.
2. The Palestinians must officially file a complaint against individual Israeli soldiers and leaders. This is also far from guaranteed as it could expose the Palestinians to "mutually assured legal destruction" with the Palestinians facing probably worse war crime cases for indiscriminate rocket fire and Israelis facing complex grayer fog-of-war cases, in the Palestinians' best scenario.
3. The ICC Prosecutor must decide based on the complaint to order a preliminary examination and then a full criminal investigation. It cannot do this unless it shows that Israel refuses to or is unable to investigate itself. Israel investigating itself does not require a set number of convictions, just reasonable investigations and Israel has already ordered 13 investigations into the Gaza war.
4. The ICC Prosecutor, not Palestine, decides whether or not to indict. To indict, the prosecutor would need to believe there is evidence beyond a reasonable doubt to convict that there was essentially intent to murder, whereas many incidents in war are foggy and involve mere negligence or mistake.
5. Israel is not a party to the Rome Statute or the ICC and, like some other countries which have directly or indirectly ignored the ICC, could choose not to give its citizens or evidence over for trials.
6. The Palestinians cannot file complaints relating to any date before November 29, 2012, when the UN General Assembly recognized Palestine, and Israel, if it joined the ICC could not file complaints relating to any date earlier than July 1, 2002, the effective start date of the ICC.