Breaking Deadlocks: Palestine and the International Criminal Court

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By Guest Contributors Harsh Mahaseth & Nirupan Karki

Harsh Mahaseth and Nirupan Karki are currently pursuing their degree in law from the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad, India. 

The longstanding Israel-Palestine conflict dates back to 1967, when Israel captured West Bank and the Gaza Strip. As a result, more than 700,000 Palestinian Arabs were forced out of their settlements and made into refugees. Israeli authorities, since then, have taken thousands of acres of Palestinian land for their settlement and have facilitated the transfer of its citizens to the West Bank- a territory of Palestine. It is now home to approximately 580,000 Israeli people who have settled there with aid from their government. Such an action is similar to one of colonization and is contrary to the Fourth Agreement of the Geneva Convention. While the settlers are provided with adequate infrastructures, subsidies, protection and rights, these benefits are not extended to Palestinians living there. They are instead subjected to oppression, discrimination and severe violations of Human Rights. Discriminatory laws have particularly made it difficult for Palestinians to obtain building permits in West Bank and East Jerusalem, which are exclusively under Israeli control. This has led Palestinians to give up on land that is rightfully theirs. Furthermore, Israel revoked residency of Palestinian citizens residing on the West Bank citing arbitrary security concerns. As Human Rights Watch rightly puts it, this is a “repression that extends far beyond any security rationale.

On April 1, 2015, Palestine became the 123rd member to ratify the Rome Statute and became a member of the International Criminal Court (ICC). The reason behind this ratification was to threaten to bring charges against Israeli officials who had committed severe crimes in the Occupied Territories. This decision has met widespread approval, with the European Parliament describing it as a “historic moment in the Palestinian people’s struggle for justice, freedom and peace.” Both international law and the public opinion has been seen to side strongly with the Palestinians, but Israel shows no signs of stepping back.

 

Palestine in the ICC

The Office of the Prosecutor of the ICC began its preliminary examination in Palestine in January 2015. During this phase the prosecutor determines whether the certain criteria have been met to pursue a formal investigation. In September, 2017, four Palestinian human rights groups submitted a 700 page communication to the ICC alleging Israeli officials of committing war crimes and crimes against humanity in West Bank and East Jerusalem.  According to these human rights groups, this step is “necessary step to ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable”. This communication is said to hold evidence of the war crimes which could be considered strong evidence to launch a full investigation.

This is not the first time an organization has requested the ICC to open up a formal investigation. In 2016, Human Rights Watch had requested the ICC to open a formal probe drawing on the “unlawful attack” carried out by both sides during the Israeli war on Gaza and the continuous expansion of illegal settlements. In light of this report being submitted there are chances that this process is taken further.

 

Implications of the ICC’s Decision

According to the mandate of the ICC, Individuals can be tried and be held accountable for committing serious crimes that are of concern to the international community. The crimes should fall under any of the four criteria, namely genocide, war crimes, crimes against humanity, and the crime of aggression. In its mandate, the ICC further states that deportation or forcible transfer of population comes under the ambit of “crimes against humanity”. Thus, facilitating illegal settlements of Israelis in Palestinian territories and forcing conditions where Palestinians have to move out of their own houses does constitute as a serious crime under the ICC’s mandate and gives them jurisdiction to try those involved.

Considering that Israel is not a party to the Rome Statute, it may not agree to the decision of the ICC; however, its nationals can be tried by the ICC for crimes committed on Palestinian territory. Although enforceability of such a judgment lies solely in the hands of individual states and their stance on international law, failure to comply will be met with repercussions from the international community. Therefore, it would create a favorable outcome for the Palestinians as it would cast Israel in an unfavorable light in relation to the United Nations, international law, and public opinion, etching Israel’s history. Considering Israel’s volatile relations with nations of the Middle East and most of the P5 countries, as of late, disregarding the ICC judgment is not advised.

 

The Way forward

Lately, many have been wondering if the recent considerations of some African countries to withdraw from the Rome Statute will generate a domino effect and result in the end of the ICC. During the near two decades of the operation of the ICC, it has been very reluctant to be proactive except for in Africa, and that too has seen an immense backlash by the African nations as being unfairly targeted.

The ICC has been reluctant to stir up political opposition in the West, which is bound to happen if a full investigation is opened up by Palestine. With the ICC now beginning to take on powerful nations such as the United Kingdom for its actions in Iraq, or Russia for its actions in Georgia, or Israel for its actions in Palestine, there needs to be a more dominant role of the ICC. The dependence of the Court on the States’ cooperation and the rage against the Court by the AU has left the ICC in a conundrum. The ICC requires the States’ cooperation and without this, there can be no expectation of the victims of mass crimes having recourse to justice or atrocious crimes from being prevented from occurring now and in the future. The step taken by Palestine to take the Israelis to the ICC helps restore support for the flagging claims of the Palestinian Authority to serve as the sole legitimate representative of the Palestinian people.

However, the arguments against Palestine taking the Israelis to the ICC are something that needs consideration as well. This move could also prove to be fatal as the Israelis could move quicker towards closing the conflict and annexing West Bank. Their disproportionate reactionary tendencies to any formal action directed at the legality of their policies and practices can prove to be harmful to Palestine, but considering the strong support Palestine now has from the international community, a strong foundation is laid for Palestine the 50-year long deadlock.