How Exactly Does the International Criminal Court Work – and Should Israel Be Worried?

Having been accepted to the ICC, the Palestinian Authority can file war crimes complaints against Israel after 60 days.

Ilene Prusher
Ilene Prusher
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Palestinian Foreign Minister Riad al-Malki (left) at the International Criminal Court in The Hague.
Palestinian Foreign Minister Riad al-Malki (left) at the International Criminal Court in The Hague.Credit: AFP
Ilene Prusher
Ilene Prusher

Since the collapse of the United States-sponsored final status talks last April, Israelis and Palestinians have been in a downward spiral, with little hope of a resumption of the peace process in sight. With apparently dwindling prospects of making gains in negotiations with Israel, the Palestinian Authority has instead opted to seek international recognition for a Palestinian state, and acceptance to international bodies.

Following a failed gambit to pass a resolution for the creation of an independent Palestinian state at the United Nations in late December, on January 1 Palestinian President Mahmoud Abbas signed on an application to the International Criminal Court in the Hague. In retaliation for both moves, which Prime Minister Benjamin Netanyahu views as diplomatic warfare, Israel announced it was freezing about half a billion shekels in tax revenue due to the Palestinian Authority.

Should Israel be worried? Does the ICC actually have any teeth, and what will happen next? A few questions and answers below help explain the significance of the latest developments.

What exactly is the ICC? Is it a part of the UN?

The ICC is an independent international organization based at The Hague in the Netherlands, and is not part of the UN system. It was founded after a long campaign that culminated in the Rome Statute, which was adopted by 120 states in 1998 and entered into force in 2002, after 60 countries ratified it. More than 120 countries have now ratified the treaty – Israel and the U.S. are not among them.

Until the creation of the ICC, tribunals were established to try crimes committed only within a specific time-frame and during a specific conflict. Since such tribunals were difficult to establish and sometimes happened only decades after the fact – witness the long-overdue and still-running tribunal addressing the Cambodian genocide, which occurred in the mid-1970s – there has been a consensus among many international law experts and human rights advocates that an independent, permanent criminal court was needed. The perceived need for an international criminal court grew in particular following the international tribunals for Rwanda and the former Yugoslavia.

What’s the difference between the ICC and the ICJ, the International Court of Justice?

Both are in the Hague, lending some degree of confusion. At the ICJ, which is a branch of the UN, states act as parties and can initiate contentious cases against other states, for example Ecuador versus Colombia. The UN General Assembly can pose legal questions to the court and gain “advisory opinions,” but these opinions are not binding on state parties. One example of an advisory opinion was the case in which the UN asked the ICJ for an opinion on the legality of the construction of the separation barrier in Israel, which opponents call an “apartheid wall.”

The ICC, on the other hand, only interprets the Rome Statute and has jurisdiction to try individuals, not states. Cases at the ICC can be initiated either by a prosecutor choosing to initiate a case, a referral from the UN, or a state who is party to the Rome Statute. Since Palestine was recognized in November 2012 by the UN General Assembly as a “non-member observer state,” it became eligible to apply for many treaties, including the one that created the ICC.

What period of time might the court look at in terms of the Israeli-Palestinian conflict?

The courts said in a press release that on January 1 its registrar received “a document lodged, under article 12(3) of the ICC Rome Statute, by the Palestinian government declaring Palestine’s acceptance of the jurisdiction of the ICC since 13 June 2014.” That is the day after the June 12 kidnapping of Naftali Fraenkel, Gilad Shaer and Eyal Yifrah, three teenagers who were seized from a West Bank hitchhiking post by two members of the Hamas-affiliated Qawasmeh clan and later murdered. The date indicates that the PA will try to bring charges of war crimes related to Israel’s sweeping arrests in the West Bank following the kidnapping, as well as the whole of the IDF’s actions in Gaza during Operation Protective Edge. Therefore, it would not include the time of Operation Pillar of Defense or Operation Cast Lead.

If the court is now accepting jurisdiction over the PA, does that mean that Israeli officials, both civilian and military, could soon be tried?

Acceptance of the ICC’s jurisdiction in a case does not automatically trigger an investigation, the court notes. “It is for the ICC prosecutor to establish whether the Rome Statute criteria for opening an investigation are met and, where required, to request authorisation from ICC judges,” the court said in a statement.

At the end of the war this summer, the chief prosecutor of the ICC, Fatou Bensouda, wrote an op-ed in The Guardian in which she opined that as of November 2012, Palestine now has the status of state and can therefore file war crimes complaints against Israelis if it chooses to join the ICC’s Rome Statute. Some interpreted this as an encouragement to proceed.

Again, the ICC can only try individuals as opposed to Israel as a whole. Therefore, it is most likely that names on the docket could potentially be Israeli leaders such as the prime minister and minister of defense, senior IDF officials and mid-level military commanders of IDF units known to have led operations in areas of the Gaza Strip with particularly high casualty counts, such as Shujaiyeh and Rafah.

What kinds of crimes can be tried in the ICC? What does it say about what kind of crimes the PA may try to have lodged against Israelis?

The ICC defines itself as an “independent, permanent court that tries individuals accused of the most serious crimes of concern to the international community as a whole.” The court addresses four general areas: genocide, crimes against humanity, war crimes and crimes of aggression. These four areas are detailed in great depth, and could be interpreted by Palestinians – and a sympathetic court – to be legitimately charged against Israeli officials. For example, the listing under war crimes includes this definition: “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

The first three of seven definitions of crimes of aggression in the treaty include: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State.

Is the ICC biased against Israel? Does it deal with other human rights violations?

So far, 21 cases in nine conflicts have been brought before the International Criminal Court. The court says that to date, four parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring in their own countries to the court. In short, it has largely been used for conflicts in Africa.

What are the chances of the ICC convicting Israelis?

The ICC has so far convicted only two people – Thomas Lubanga Dyilo and Germain Katanga, two Congolese warlords. The court itself cannot make arrests and has no power to detain people, although individual member states can. More likely to be of concern is the threat of Israelis being hauled into court at the Hague, and the damage this does to Israel’s image, explains Shana Tabak, a practitioner-in-residence with the International Human Rights Law Clinic at American University: “If a case were to be brought against an Israeli official, presumably Israel would not turn that defendant over to the court. However, it would make for a difficult public relations campaign and would also make it more difficult for the official to travel through any country in Europe, for example, which had signed onto the Rome statue.

“What is most important in my eyes in terms of the Palestinians joining the ICC – as well as over a dozen other international treaties – is that it is bolstering its position vis-à-vis the international community and the UN, which can only lead to greater international recognition of Palestine as a state.

“The move also potentially opens up Palestinian officials to prosecution at the ICC for war crimes, so one might hope that signing the Rome Statute along with other important human rights treaties indicates a willingness on the part of the Palestinian government to refrain from any policies that might lead to prosecution of their own officials. The cynical perspective, of course, is that Palestinian behavior need not change, yet signing the Rome Statute allows Palestine to bring cases against Israel which, whether or not they are successful in bringing defendants to the Hague, will have important public relations ramifications on the world stage.”

Now that the Palestinians have signed on, what happens next?

PA President Mahmoud Abbas’s signature on the documents last Friday started a 60-day period, after which the PA could file war crimes complaints with the ICC Prosecutor’s Office. On Tuesday, Secretary-General Ban Ki-moon said the state of Palestine will officially join the ICC on April 1. In a statement posted on the UN’s treaty website Tuesday night, the secretary-general said he was acting as the “depositary” for the documents of ratification.



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