The Palestinians’ legal strategy, which has proceeded haphazardly for more than a decade, appears to have won a significant vindication from the green light given to the Prosecutor of the International Criminal Court by a pre-trial chamber to initiate an investigation into potential war crimes and crimes against humanity committed by Israel’s armed forces in East Jerusalem, the West Bank and Gaza.
It came in the wake of a series of failed attempts to prosecute senior Israeli officials in the courts of the United Kingdom, Belgium, and Spain, for war crimes under the principle of universal jurisdiction.
The ICC was Palestine’s last recourse to justice. Had the chamber ruled otherwise, many of the crimes documented by Israeli and Palestinian human rights groups over many years would have continued to go unjudged and unpunished.
The ICC decision has rightly been hailed as a major achievement by Palestinian Prime Minister Mohammad Shtayyeh and by numerous human rights groups; yet the real legal work is only just beginning.
Given that Israel is not a party to the Rome Statute, it is not obligated to cooperate with the ICC. Therefore, the response of other states to the chamber’s decision is important. Should these states refuse to cooperate with the Prosecutor, Israel will have little to fear.
Comments by Germany’s foreign minister indicate that Israel is winning exactly this kind of political support, and from powerful countries.
Some of them may consider shielding Israeli suspects from the reach of the ICC, by warning them about an impending arrest warrant, or simply ignoring one, even if that would create a judicial crisis between these states and the Court.
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There is a precedent: in 2015, South Africa let Sudanese president Omar al-Bashir fly home in defiance of a court order that he must remain to face an arrest warrant on charges of genocide and war crimes.
Unsurprisingly, pre-empting recent developments, Israel has been investing considerable resources into delegitimizing an ICC investigation, even establishing a slick government website dedicated to this purpose, with comments from friendly states and law professors. The aim is to discredit any investigation before it begins.
But dig deeper, and we can see that there remain serious obstacles to the success of any investigation — and not just regarding Israeli crimes, but also in respect of crimes committed by Palestinian groups, principally Hamas and Islamic Jihad, who will also be the subject of an investigation.
The truth is that the lowest hanging fruit for the new Prosecutor, the British barrister Karim Khan QC, who currently heads the UN Special Investigative Team on ISIS crimes in Iraq, and replaces Fatou Bensouda in June, would be to go after Hamas and Islamic Jihad leaders. They are accused of war crimes for targeting Israeli citizens using rocket fire and for the use of human shields.
Not only is Hamas headquartered in the territory of a state party — namely Palestine, but its diasporic leadership is scattered throughout the world, with many of its leaders living in the territories of state parties. To put it bluntly, they are sitting ducks. It is difficult to imagine that any state party would be willing to breach its international obligations to proactively shield Hamas leaders from an arrest warrant issued by the Prosecutor.
Of course, it would be bad optics if the Prosecutor only went after Hamas leaders and ignored Israeli crimes. This is especially true as Hamas is key to the success of any prosecution against Israel: they are not only potential defendants but also facilitators for the prosecution. After all, they, not Fatah, control Gaza where the most serious crimes occurred during Operation Protective Edge (2014) and during the Gaza border protests (2018-2019).
There is only so much work that can be done remotely. Access to the territory, the collection and preservation of evidence, and identifying and interviewing witnesses, cannot take place without involving Hamas. The new Prosecutor will therefore need their cooperation.
The reality is that the prosecutor will have to establish a good working relationship with all the principal parties – Israel, Fatah, and Hamas. This may sound like a tall order, but without their active cooperation it is going to be difficult to get an investigation off the ground.
And Fatah will have to reach a modus vivendi with Hamas on this issue. While to date, it appears that they have been working together successfully on the ICC file, an arrest warrant that only targeted Hamas leaders might jeopardize that relationship.
Nor is it inconceivable that Hamas and Israel could work together (quietly, behind the scenes) to frustrate an investigation that targeted Israeli and Hamas leaders, which, of course, they would strenuously deny in public.
What impact could the ICC process have on the long-deferred Palestinian elections, due to be held this summer? Whatever the result, it is difficult to imagine that if Hamas lost, it would willingly concede power to Fatah in the Gaza Strip, with arrest warrants hanging over its leaders' heads.
On the other hand, there may be an upside for Hamas in cooperating with the ICC. By cooperating with the Court, especially in the event of a trial, they may get to tell their story in a very public forum to the world. And, of course, a trial does not necessarily mean a conviction.
Victor Kattan is a Senior Research Fellow at the School of Law at the University of Nottingham. He was formerly a Senior Research Fellow at the Middle East Institute at the National University of Singapore. He is the author of "From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict" (Pluto Press 2009) and editor, with the late Peter Sluglett, of "Violent Radical Movements in the Arab World: The Ideology and Politics of Non-State Actors" (Bloomsbury 2019). Twitter: @VictorKattan