Does Abbas signing Rome Statute doom IDF to ICC war crimes trials?

The Palestinians still have many legal and diplomatic hoops to jump through before Israelis will be seen in the dock at The Hague.

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)
Yesterday was a game-changer for Palestinian lawfare against Israel.
The world is a different and much harsher place for Israel after the Palestinians signed the Rome Statute, which probably grants them access to the International Criminal Court.
This was the main obstacle Israel has used to block the Palestinians from filing war crimes complaints with the ICC since their first try in February 2009, after the 2008-9 Gaza war – that Palestine was not officially a state, and that it had not formally signed the Rome Statute.
Despite the shifting landscape, the Palestinians still have many legal and diplomatic 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.
First, the ICC Prosecutor must recognize Palestine as a full member and accept its signature to the Rome Statute (and the Palestinians must ratify the statute as simply signing is not enough.) 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 September statement and the recent related Comoros Islands decision.
In that decision, Bensouda decided not to open a full criminal investigation into Israeli soldiers conduct in killing nine people on the Mavi Marmara flotilla in 2010 for unrelated reasons, but strongly implied a readiness to recognize Palestine as a state if it signed the Rome Statute.
Next, 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.
The Shurat Hadin NGO has already filed some complaints against Palestinians and Israel could file even more devastating ones using detailed intelligence and exclusive IDF data from the war.
Third, the ICC Prosecutor must decide based on the complaint to order a preliminary examination and then a full criminal investigation.
This will probably be the primary battle since it cannot do this unless it shows that Israel refuses to, or is unable to investigate itself.
The ICC is a special court of last resort, meaning if countries investigate their own war crimes, it should usually have little to do and in non-Israel cases it has appeared ready to defer to other countries’ explanations of incidents if they do some investigating.
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.
But what is “reasonable?” The IDF has decided to investigate incidents where it hit an UNRWA facility and where it killed civilians on a beach, but has closed preliminary reviews without full investigations into a hit on an UNSCO facility and Wafa Hospital.
It has detailed explanations for why, and if Bensouda is willing to accept IDF explanations at face value, the IDF’s own investigations may be enough to keep the ICC out of things.
But in the earlier mentioned Comoros Islands decision, Bensouda also declared Gaza occupied and that minus an unrelated technical jurisdictional issue, she thought war crimes likely could have been committed by the IDF in the Marmara incident – this despite that both the quasi-government Turkel Commission and the UN Palmer investigation found no war crimes occurred.
If Bensouda is ready to question IDF findings, then IDF soldiers and leaders’ situation could be far more dire.
Next, 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 opaque and involve mere negligence or mistake.
Thus, even if Bensouda is ready to question IDF findings, it could be difficult for the IDF judges themselves, who have appeared defendant- friendly until now, to convict Israeli soldiers.
Further, Israel is not a party to the Rome Statute or the ICC and, like some other countries that have directly or indirectly ignored the ICC, could choose to give neither its citizens nor evidence over for trials.
Another important limitation is that 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.
This may be most relevant with trying to accuse Israelis of war crimes relating to the settlements as it means that most settlements are “grandfathered” into being exempt from ICC involvement.
Academic Sigall Horovitz pointed out that if Israel does sign the Rome Statute, under Article 124, it could prevent the ICC from investigating settlements-related issues for seven years, and permanently block such investigations if it reached agreed upon borders with the Palestinians by the end of that time frame.
Absent that, 2013-2014 settlement actions could be a problem for Israelis since Israel does not investigate them or view them as the ICC might.
In short, Israelis are far closer to a perilous legal situation than ever before, but the legal war is just beginning.