Out of Court

The​ latest assault on Gaza has given fresh impetus to calls to bring Israel to account at the International Criminal Court. Since the UN General Assembly recognised the state of Palestine in 2012 – upgrading it from ‘permanent observer’ to ‘non-member observer state’ – it has been eligible for membership of the court. The current ICC prosecutor, Fatou Bensouda, has said it is now up to Palestinians whether or not to join. Were they to decide to do so – as human rights organisations have been calling for them to – the ICC would have the jurisdiction to prosecute Israeli war crimes committed in the conflict. But ICC membership may not be the panacea that some believe it to be. Even if the court overcame the obstacles to bringing a case, it still might not be able to deliver Israeli suspects to the dock. In the short term, the real value of an ICC case to Palestinians would be the damage to Israel’s legitimacy: it is not so much law as legitimacy that is at stake here. International law is after all unlikely to regulate Israel’s behaviour: the US veto in the UN Security Council makes enforcement effectively impossible. But it does reinforce Palestinian claims and may alter public perceptions of the conflict.

Israel has responded to the possibility of Palestinian membership of the court by threatening unspecified retaliation. ‘The PA’s pursuit of Israel through the ICC,’ Israel’s military advocate-general warned in 2010, ‘would be viewed as war by the government of Israel.’ The US and the EU have said they would cut off financial aid to the PA if it joins; according to one report, the EU has threatened to withhold aid for rebuilding Gaza after the latest Israeli assault. Pressure has also been applied in New York. In 2012 the US tried – and failed – to include a clause in the resolution recognising Palestine as a state that would have prevented it from joining the court. The UK – unlike the US, a member of the ICC – made its support for the upgrade conditional on the same grounds. The PA has an unenviable dilemma: it needs to join the court in order to assuage Palestinian popular opinion, which wants Israel to be held accountable for its actions, but it is also dependent on Israeli-Western support for its survival, and Israeli retaliation in response to ICC membership could have severe consequences. The question, then, is whether in spite of the risks the PA, were it to join, will bring a case against Israel at the ICC and open a new front in the battle for legitimacy.

Palestine first approached the ICC in January 2009 after Operation Cast Lead, Israel’s three-week assault on Gaza, when 1400 Palestinians were killed and Gaza’s infrastructure was devastated. The PA lodged a declaration asking the ICC to exercise jurisdiction over crimes ‘committed on the territory of Palestine’. The prosecutor was unsure whether Palestine was a state, a necessary precondition for a case to go ahead. But Palestine’s upgraded status at the UN has resolved the issue, and if Palestine joined the ICC Israel could be prosecuted even though it is not a member, since the court has jurisdiction over crimes committed by any national on the territory of a state party to the Rome Statute (the treaty which established the Court). It doesn’t require a great stretch of the imagination to see how a case brought before the ICC could affect the balance of power in the conflict. Take a prosecution of Israel’s settlement activity (‘the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’ is an offence under the Rome Statute). Such a case could easily extend to high-ranking members of Israel’s political class: most are implicated in the settlement enterprise, and might be subject to ICC arrest warrants. Other Israeli policies that are likely to fall within the ICC’s jurisdiction include the demolition of Palestinian homes, attacks on civilians in Gaza, and Israel’s occupation regime, which the court might consider a form of apartheid – a crime against humanity under the Rome Statute.

But the court would have to resolve several thorny issues before any case could go ahead. Some argue that the ICC can only try crimes committed after November 2012, when Palestine’s status at the UN was upgraded. And prosecutions can’t go ahead unless crimes of ‘sufficient gravity’ have been committed since that date. Have enough settlements been built post-2012 to constitute a crime of ‘sufficient gravity’? The Israeli Central Bureau of Statistics reports that construction began on 2534 housing units in settlements in 2013. By the beginning of 2014, according to Peace Now, Israel had approved 5349 new units. This looks like a significant expansion, but not all the new units have been completed, so the crime of transferring settlers might not yet have taken place on a large scale. Alternatively, the prosecutor might decide that transferring settlers is a ‘continuous crime’ – in other words not limited to the transfers that have taken place since 2012. Other potential difficulties, such as Palestine’s undefined borders and the fact that the Oslo Accords don’t allow the PA to exercise criminal jurisdiction over Israelis, would also have to be resolved.

Another difficulty is political. The ICC has an institutional interest in maintaining good relations with the major powers, especially with the US. Given the pressure the Americans would bring to bear on the court not to pursue a case against Israel, the prosecutor might be tempted to invoke an ill-defined provision in the Rome Statute that means she can decline to investigate or prosecute if it isn’t ‘in the interests of justice’. For its part the UN Security Council can require the ICC to suspend a case for 12 months if it is considered a ‘threat to international peace or security’, a position the US will want to encourage and other permanent members might support, or at least not oppose.

Because the court can prosecute crimes committed on the territory of a state party by any national, and also by the nationals of a state party on any territory, Palestinian crimes such as rockets fired from Gaza would also come under its remit. Membership of the ICC could, then, result in Palestine having to hand over its own nationals to the court while Israelis, even with arrest warrants against them, might avoid trial by refusing to surrender themselves. But all Palestinian factions – including Hamas, which is responsible for most of the rockets – have agreed to ICC membership, in spite of the risk of prosecution.

Over the past ten years, a series of cases brought by Palestinians against Israelis in European courts, under universal jurisdiction laws, have marked small advances in the ‘legitimacy war’. In 2001 victims of the 1982 Sabra and Shatila massacre lodged a criminal complaint against Ariel Sharon in a Belgian court. In 2008 a Spanish judge opened a criminal investigation into several Israeli leaders, including the former defence minister Binyamin Ben-Eliezer, for the assassination of a Hamas leader in Gaza in 2002 that also killed 14 civilians. In 2009 a British magistrate issued an arrest warrant against Tzipi Livni, the former Israeli foreign minister, for her role in Operation Cast Lead. The effect of these cases on public perceptions of Israel as a rogue state with leaders on the run outweighed the fact that the chance of prosecution was always slim. Nonetheless, Israel saw the danger and lobbied the governments of countries where cases had been brought not only to stop them but to change their laws to make it more difficult to bring such cases in future. Belgium, Spain and the UK all gave way and altered or restricted their laws on the application of universal jurisdiction.

Whatever the outcome, an ICC case would be a further defeat for Israel. An investigation into the settlements, in particular, would support claims that they were both illegal and criminal, making it harder for Israel to argue that it should be allowed to keep the major settlement blocs. Some states would be prompted – and if they are signatories to the Rome Statute they might be obliged – to prohibit any dealings with the settlements that amounted to ‘aiding, abetting or otherwise assisting’ them. This would further increase the precariousness of the settlement project. The EU has already excluded the settlements from funding and banned imports of animal products from them: most member states have warned against commercial activities with them.

In a 2010 lecture, Danny Ayalon, Israel’s deputy foreign minister, argued that legal cases brought by Palestinians were one of the biggest challenges Israel faced in the years ahead: ‘Today the trenches are in Geneva in the Council of Human Rights, or in New York in the General Assembly, or in the Security Council, or in The Hague, the ICJ.’ Israel calls Palestinian legal initiatives ‘lawfare’, the strategy of using law rather than traditional military means to achieve an objective. The term was used by the US administration after 9/11 to describe allegations that US soldiers had committed war crimes, made in an effort to undermine support for the American invasions of Afghanistan and Iraq. But Israel is practised at fighting back. In 2004 a case was brought before the International Court of Justice on the question of the legality of Israel’s wall in the West Bank. Israel put forward numerous arguments opposing the court’s jurisdiction; almost half the court’s findings were devoted to refuting them. In 2009 Israel tried to prevent the Goldstone Report from reaching the UN General Assembly by lobbying the secretary-general; it also threatened to undermine the Palestinian economy, in part by declaring that it would withdraw its commitment to allot radio frequencies for a new Palestinian mobile phone provider if a scheduled vote on Goldstone went ahead at the UN Human Rights Council. Had the mobile phone deal collapsed, the PA would have faced hundreds of millions of dollars in penalties, and investment in the Palestinian economy and jobs would have taken a devastating hit. The PA asked the Human Rights Council to delay the vote on the report but later reversed its decision, as a result of popular pressure in the Occupied Territories, and requested an emergency session of the council. Israel’s threats turned out to be hollow; the council referred the report to the General Assembly, which endorsed its findings. But Israel’s assiduous lobbying, with US support, ensured that the report was never put before the Security Council: Goldstone’s recommendations, including that the Security Council refer the Gaza conflict to the ICC (as it has the authority to do), have not been implemented.

Popular pressure on the PA to join the ICC has increased since the latest breakdown in peace talks in April. A poll by the Palestinian Centre for Policy and Survey Research in June found that 80 per cent of Gazans and the majority of West Bank residents want the PA to go to the ICC; Operation Protective Edge has only strengthened this feeling. The desire for ICC membership is largely a reaction to what the Goldstone Report calls the ‘justice crisis’ afflicting the Occupied Territories – the impunity enjoyed by Israel for its violation of Palestinian rights. The possibility of Israeli-Western retaliation against the PA for ICC membership is not a consideration for the moment: few people are aware of the threats that have been made against the PA, which tends to deny that its decisions are shaped by external pressures. More important, there is a growing sense that a return to a strategy of resistance against Israeli occupation – even if it entails sacrifices – may be the only way forward now, and the ICC is viewed as a form of non-violent resistance. Despite the popular pressure, Mahmoud Abbas has continued to drag his feet over ICC membership, even as members of his inner circle, notably Saeb Erekat, the chief Palestinian negotiator, have criticised him for doing so. His announcement on 30 July that the PA would sign the Rome Statute has yet to be followed through and attempts to blame the delay on a lack of agreement from Hamas were thwarted when Hamas publicly urged the PA to move ahead. The stalling is likely, as so often, to be the result of pressure brought to bear on Abbas by the US and the EU.

The tendency to refrain from legal action against Israel and instead try to settle all claims through negotiation is part of a wider PA policy of acquiescence, the quid pro quo for continued financial aid from Israel and the West and the trappings of self-government. As a consequence the PA is limited to using the prospect of ICC membership to gain leverage in what most Palestinians believe to be fruitless negotiations, rather than as a genuine means of achieving redress. In July Hanan Ashrawi, a senior figure in the PLO, announced that Palestine would seek ICC membership ‘sooner rather than later’ if Israel did not stop its offensive on Gaza; the Palestinian ambassador to the UN, Riyad Mansour, and the foreign minister, Riyad al-Malki, have made similar statements. The threat of membership of the ICC is almost more important than membership itself.

The real question is how much longer the PA can continue not to act when Palestinians want a change in direction. A poll in December 2013 found that most people in the Occupied Territories opposed the PA’s decision to resume talks with Israel the previous summer, and the latest assault on Gaza has only increased popular dissatisfaction with the status quo. Palestinian civil society has for several years been calling for a new strategy to achieve Palestinian national aims, in which rights are paramount and negotiated political outcomes are secondary; in this view, law is a genuine mechanism rather than a bargaining chip. In November 2009, after the PA had achieved little at the UN over the Goldstone Report, 13 Palestinian human rights organisations signed a letter criticising the PA for having ‘negotiated away’ rights ‘in order to provide the appearance of political progress’. The Boycott, Divestment and Sanctions campaign, endorsed by most Palestinian civil society organisations, as well as the grassroots Stop the Wall campaign, also articulate their aims in terms of human rights and call for the enforcement of international law. The PA could sit it out and hope that the popular sentiment subsides, but it could harness the legitimacy that legal action against Israel would confer by signing the Rome Statute and then taking the necessary steps to initiate a case, by referring crimes to the prosecutor and supporting an investigation into Israeli actions. Doing so would send a clear message to the Palestinians: your rights are more important than continued acquiescence to Israeli-American demands.