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."
YASSER AL-ZAYYAT/AFP/Getty Images