Threat of Justice

Israel fears prosecution in The Hague, and the Palestinians know it. But does the world’s war crimes court want to get involved?

At the beginning of April, Palestine submitted applications to join more than a dozen international organizations and treaties. The move was a calibrated step in Palestine's elaborate dance toward recognition as a fully sovereign state. The bid provoked all the expected responses: The Palestinians' backers applauded the move, while Israeli and American officials argued that "unilateral" steps toward recognition were provocative without a comprehensive peace deal. Israeli Prime Minister Benjamin Netanyahu warned "the Palestinians will get a state only though direct negotiations, and not through empty declarations."

One important international organization, however, was not included in the flurry of Palestinian paperwork: the International Criminal Court (ICC). The Hague-based court, which can prosecute individuals for war crimes, crimes against humanity, and genocide, has preoccupied Israeli officials for years. Consequently, the decision not to play the ICC card was intentional: Palestinian officials explicitly held out the prospect of taking that step if Israel does not make concessions. "If Israel wishes to provoke us further," said Palestinian U.N. envoy Riyad Mansour, "then we will continue to seek the membership of other international treaties and agencies, such as the ICC."

Palestinian officials understand well that Israel and the United States dread the prospect of ICC involvement in the conflict. That fear is understandable. In theory, an ICC investigation could become a major factor in the diplomatic equation and even expose senior Israeli officials to prosecution for war crimes.

But legal theory is one thing and practical realities are another. The actual behavior of the ICC suggests that Israel is greatly overestimating the danger that the court poses to its policies and its officials.  

First, the theory. The largest category of crimes covered by the ICC is war crimes, and that's the one most likely to be relevant in an ICC investigation. Over the years, Palestinian officials -- and some international observers -- have accused Israeli forces of an array of these crimes. The famous Goldstone report -- commissioned to examine the 2008-2009 Gaza conflict -- accused Israel of attacking civilian infrastructure, depriving civilians of medical care, and abusing detainees. It concluded that Israeli violations "fall within the subject-matter jurisdiction of the [ICC.]" Israel responded quickly and aggressively to all these charges and referred several possible violations by its forces for criminal investigation.

The most worrisome area for Israel is not its battlefield performance but its behavior as an occupying power. International law imposes special obligations on states occupying foreign territory, and Israel's settlement policy puts its officials in potential legal jeopardy. The ICC's underlying charter, the Rome Statute, includes among its delineated war crimes "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies..."

That language is ominous enough for Israel. Worse, the nature of decision-making on the country's settlement policy could put its senior leadership in the court's crosshairs. Violations committed during military operations would likely focus on mid-level and perhaps senior military commanders; settlement policy almost by definition goes to the very top of the Israeli government. And that is the scenario that haunts Israeli politicians and lawyers.

It is conceivable that an ICC investigation would produce indictments for its settlement policy. But how likely is that, given the court's performance to date? There are many reasons to think that a Palestinian move to join the ICC might not produce a full investigation, let alone indictments of senior Israelis. Both the court's overall performance and its specific approach to Palestine suggest that the court's prosecutor will avoid entangling the court in the Middle East morass.

The court's record is highly cautious, particularly when it comes to choosing which investigations it will launch. Most of its investigations have come when sovereign governments have asked the court to investigate the activities of rebel forces or militia groups on their territory (in places including Uganda, the Democratic Republic of Congo, Cote d'Ivoire, Central African Republic, and Mali). In two situations, the court has acted at the behest of the U.N. Security Council (Darfur and Libya).

By contrast, the court has steered clear of situations involving conflict between different states and those that have strong geopolitical overtones. It hasn't investigated Afghanistan or the Russia-Georgia conflict, for example, even though both have featured serious crimes that national authorities have not addressed.  

The court's own record with Palestine also suggests that it would be eager to avoid involvement. Palestine's first contact with The Hague came during fighting in Gaza. In January 2009, Palestinian authorities dispatched a minister to formally give the court jurisdiction over its territory. Then-ICC Prosecutor Luis Moreno-Ocampo met the Palestinian minister and helped him file the necessary paperwork. But the bid soon bogged down in the vexing legal question of whether Palestine is a state (only states can give the court jurisdiction over territory). For more than a year, the prosecutor sought opinions from all sides. Finally, he punted. In April 2012, he closed the Palestine file, noting that it is not the court's job to determine statehood.

Moreno-Ocampo's successor as chief prosecutor, Fatou Bensouda, has also been careful on Palestine. After the United Nations voted overwhelmingly to recognize Palestine as a state in November 2012, she might have simply accepted Palestine's declaration of jurisdiction. Instead, she put the ball back in the politicians' court, insisting that Palestine must make a new jurisdictional declaration.  

Behind the scenes, Israel has been working hard to ensure that Palestine doesn't take the next step. Shortly after the Gaza conflict, it initiated a quiet dialogue with Moreno-Ocampo. Israeli officials have also periodically pressed their American counterparts to state publicly what U.S. officials tell the ICC privately: that Washington would oppose any court involvement in the conflict. And pressure from Washington may be the key here. The relationship between the court and the superpower has improved dramatically, almost miraculously, since George W. Bush's first term, and the prosecutor no doubt understands that investigating in Palestine would threaten that reconciliation.

If Palestine does take the ICC plunge, the result may not be what it expects. The court might simply sit on the issue. The ICC's brand of justice isn't plug-and-play. The court's prosecutor gets to decide whether a full investigation is warranted, and nobody can compel her to launch one. The court has bided its time on a number of potential investigations. There is no clear reason to believe that Palestine wouldn't join the court's "cold case" file.

The prosecutor might also decide that Palestinian crimes should be her priority. Palestine can't pick and choose the criminal activity it refers to the court; it can only refer a situation in its entirety. And that means, if Bensouda takes up the investigation, Palestinian conduct would be just as vulnerable as Israel's. "Hamas's deliberate rocket attacks on Israeli civilians would be easy to prosecute both legally and factually," according to Kevin Jon Heller, a law professor at the School of Oriental and African Studies (SOAS), part of the University of London. "So they would almost certainly be prosecuted first."

In short, then, ICC involvement is likely to remain only an abstract possibility. Israel sometimes seems to be working from an old script about the ICC, in which the court would actively seek to prosecute government officials. But evidence from the past decade suggests that the ICC is as eager to avoid that scenario as Israel is. As for the Palestinians, one former ICC official told me, "An ICC referral...is most useful as a threat. If ever the Palestinians acted on it, their leverage would immediately evaporate and it is difficult to imagine that what they would gain in return from the ICC would be worth it."



The Lonely Man

With the peace process sputtering, will John Kerry abandon his signature initiative -- or cling to his belief that a deal can really be reached?

Like rock-and-roll, the Middle East peace process will never die. The latest chapter of the ongoing saga has encountered recent travails and may dwindle away. But for better or worse, in some form, the overall process will go on and on -- and on.

The central problem remains and will continue to be Tom Friedman's or Larry Summers's brilliant notion (not sure who really coined it) that in the history of the world, nobody ever washed a rental car. People only care about what they own, and today there just isn't enough ownership of this peace process by the Israelis or Palestinians to prompt the excruciatingly painful decisions both sides need to make to guarantees the process's success.

The only person who does own it is John Kerry. He believes peace is possible. Anyone who didn't believe would never take this process on with the intensity, relentlessness, and passion of the current secretary of state.

Believing isn't necessarily a bad thing; it can make a person tough and persistent. Believing only becomes a problem when a couple of things happen: You believe in what you're doing way more than anyone else; you believe that you're on a mission that nobody else but you can redeem; you believe that crusading is the last chance to achieve what you want; and (yes) you believe you can fix something that really may not be fixable. There is nothing wrong with getting caught trying to act on a belief, as Kerry maintains -- unless you continue to try with absolutely no chance of success. When that happens, what was deemed ennobling ends up looking foolish and, worse, appears weak.

Despite what his critics contend, Kerry hasn't yet reached that point -- in large part because, based on my own sense in watching this enterprise over many months, both Benjamin Netanyahu and Mahmoud Abbas see him as a kind of security blanket. They really do want him involved, even though they have grave doubts about whether they can make (or even want to make) this effort successful. The world without Kerry is worse for each of them than the world with him. Without him and his peace process, Bibi fears isolation and what will happen with respect to boycotts and pressure on Israel. And Abbas is smart enough to know that, no matter how popular it may be on the streets of Palestine, taking his statehood campaign to the international arena won't get him an independent country.

Not to put too fine a point on it, but the secretary of state is being used. And not just by Netanyahu and Abbas. President Barack Obama is doing much the same thing.

I do think Obama would like to see Israeli-Palestinian peace realized. It just doesn't appear to be  one of his top priorities -- nor should it be -- and I don't think he's prepared to put a great deal on the table without a much stronger sense that there a chance of actually accomplishing anything. Enter Kerry, who is ready and willing to manage the process. Like with Netanyahu and Abbas, the secretary of state serves a useful purpose, and Obama is glad he is around, so long as his effort doesn't require truly tough decisions by the administration or become embarrassing. A line may have been crossed with the Jonathan Pollard issue; I don't know exactly how it played at the White House, but it couldn't have gone down well. Pollard is a presidential matter, and so far it's turned out to be pretty messy. Is there going to be a deal? Is it even a good idea? There are too many questions; it all makes it look like the White House doesn't know its own mind -- or that it has a tactic without a strategy. 

What should the secretary of state do? He won't walk away, even though there's a good argument that he's being diddled and should put some distance between himself and the parties to the process. Plus, it's a big world and other areas beckon for his attention (see: Europe and Asia). He won't reveal what progress he's made on the substance of issues like Jerusalem or borders, either because there simply hasn't been much or because it's not ready for prime time.

Obama could shake things up by setting out parameters on what the United States believes constitute the basis for a settlement, but that's not going to happen until he is persuaded that the process is really, truly dead without him and pressure mounts for some bolder U.S. action.

Ultimately, I think Kerry will continue to engage as he has been. I'm betting the process will start up again. Where it will lead, I can't say, but where it won't lead is to a conflict-ending solution that resolves all of the core issues and lays to rest all claims. I suspect that Kerry will remain adrift for the foreseeable future in a kind of peace-process Bermuda Triangle, suspended between the two-state solution the parties won't commit to and a commitment to peace that he won't abandon.

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