In November, the prosecutor at the International Criminal Court in The Hague, Fatou Bensouda, halted the investigation into the 2010 Gaza flotilla affair in which Israeli commandos killed civilians on the Turkish ship the Mavi Marmara. She did so despite concluding that there were reasonable grounds to believe that war crimes had been committed on board. She said the case was not of sufficient gravity to justify further action by the ICC.
However, several of the Prosecutor’s statements highlight the risks facing Israel, especially now that the Palestinians have moved to join the court. For example, the prosecutor insisted that even though Israel declares that it no longer controls Gaza, the prevalent view amoung the international community is that Israeli control of the territory even after the 2005 disengagement is tantamount to an occupation.
The insufficient-gravity argument is based on the court’s constitution, which stipulates that the ICC has jurisdiction over war crimes when they are committed as part of a plan or policy, or as part of a large scale commission of the crimes.. In the Marmara case, the prosecutor cited insufficient gravity because this was an isolated case with a small number of victims.
The court has no authority over incidents that occur in the wider context of the Israeli-Palestinian conflict, the prosecutor said. While the situation of Gaza’s civilian population is a matter of international community, it did not fall under the jurisdiction of the court.
The fact that the Palestinians are moving to join the court completely changes the situation. The prosecutor will now have to decide whether to treat Palestine as a state that can join the court — which is likely to happen.
In April 2012, an ICC prosecutor decided not to investigate Palestinian claims of war crimes committed during the 2008-09 Gaza war. He noted that it was unclear whether Palestine was a state; the court’s statute stipulates that only a state can agree to the ICC’s investigation of alleged crimes committed on its soil (the exception being cases brought by the UN Security Council). The prosecutor said Palestine was only recognized as an observer, not a nonmember state, and that if this changed he could consider alleged crimes committed in Palestine.
But things have changed. In November 2012 the UN General Assembly recognized Palestine as a nonmember state. Acceptance as a member state requires a recommendation by the Security Council, but an American veto precludes such a step. Still, Palestine is recognized as a nonmember state. Based on her predecessor’s decisions, which were largely based on UN resolutions, Bensouda will now be able to open files against Israelis and Palestinians suspected of war crimes.
This is different than the Marmara case, where the vessel was registered in the Comoros Islands, which lodged the complaint. The prosecutor will now have a hard time arguing that the plight of Gaza Palestinians is outside its jurisdiction. Recognition of Palestine as a state and its joining the ICC can be interpreted as an extension of the court’s jurisdiction over all Palestinian territory in the West Bank and Gaza. The scope of incidents in both places would make it harder to claim insufficient gravity.
So which topics might show up at the court’s doorstep? The killing of civilians by Israel could launch an investigation, as would the killing of Israeli civilians by Palestinians; for example, by Hamas’ rockets.
True, the Palestinians’ move to join the ICC contains risks for Palestinians as well, but in cases of Palestinians attacking Israelis, they are already at risk of assassination by Israel or long prison terms if caught. In contrast, Israelis have enjoyed de facto immunity from prosecution for Israel’s actions. The Palestinian move is designed to lift this immunity.
Also note that the ICC’s constitution, just like the Fourth Geneva Convention, prohibits the transfer of civilians from an occupying power to an occupied territory. Such activity is deemed a war crime. This opens the path to proceedings against Israeli leaders responsible for establishing and expanding settlements in the West Bank.
Israel claimed in the past that the settlements were not banned by international law because the Geneva Convention does not apply to territory in which there was no previous sovereign. This claim was rejected by the international community and the International Court of Justice in The Hague when it ruled on the building of the separation barrier. (The ICJ deals with contentious cases between states, and gives advisory opinions, , while the ICC tries individuals.)
It’s unlikely that the ICC will decide differently. Some may consider that the prosecutor and court will evade the matter because the alleged crimes in this case do not involve the killing of civilians. But a specific clause on this matter was added to the Rome Statute despite Israel’s opposition, and the court can’t ignore it.
The ICC may actually decide that the settlements, no less than the killing of civilians, lie at the heart of the occupation and the denial of Palestinian self-determination, making it a good case to focus on. In contrast, when civilians are killed there are more complex issues, such as “proportionality.”
Also, in such cases the court’s authority may be blocked by the principle of “complementarity,” which states that the court will not have jurisdiction over a case if the relevant country conducts a genuine investigation or prosecution regarding it. Israel may claim that it has probed all cases in which civilians were killed during the 2014 Gaza operation. The complementarity principle does not, however, apply to the settlements which form part of a declared government policy.
It’s still a long way before Israelis are prosecuted. The prosecutor may try to quash any attempts to deal with the Israeli-Palestinian conflict so as to avoid a collision course with the United States and certain European countries. On the other hand, all current cases are against Africans, so the prosecutors, which is currently considering some cases involving world powers such as the United States and Russia, may be eager to show the court does not only prosecute Africans.
All told, the path is now open for embarrassing judicial-diplomatic complexities. The Israeli High Court’s recent approval of punitive house demolitions reflects the gap between Israeli legal positions and international norms; such demolitions could be construed as war crimes. This is but one example of the risks posed by the Palestinians’ move in recent days.
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