Should the ICC Worry Israel?

The international court will not have jurisdiction vis-à-vis Israel if the latter undertakes a serious investigation of any crimes its army may have committed.

Mohammed Wattad
Mohammed Wattad
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International Criminal Court Prosecutor Fatou Bensouda.
International Criminal Court Prosecutor Fatou Bensouda.Credit: Wikimedia Commons
Mohammed Wattad
Mohammed Wattad

Both Israel and the United States condemned the Palestinian Authority's application to join the International Criminal Court in the Hague. They noted that once the request is accepted, the PA and other Palestinian groups – chiefly, Hamas, among others – will also be subject to the ICC’s jurisdiction, and they added that such an application also jeopardizes the chances for achieving a bilateral peace agreement.

In principle, nothing is wrong about joining the ICC. If they are serious about their commitment to international law, all countries must sign and also ratify the Rome Statute, which paves the way in that process. International law is not an open buffet of “pick and choose.” The ICC is the direct outcome of World War II and the Nuremberg trials, and ratification of the statute is a requisite, especially for the U.S. and Israel.

Already in 2000, the U.S. and Israel had signed the statute but did not ratify it. On August 28, 2002, Israel made it clear that it would never ratify it, primarily because of the inclusion of article 8(2)(b)(8), which makes the transfer by an occupying power of parts of its own civilian population into the territory it occupies, a war crime.

In my opinion, the chances that Palestinian leaders – especially those affiliated with non-PA organizations such as Hamas – will be tried before the ICC is nearly zero.

As for the PA leaders, official Israel has never made any serious argument supporting the accusations that they have been involved in any hostile armed activity against Israel. On the contrary, President Mahmoud Abbas has constantly been calling for a peaceful struggle against the Israeli occupation – publicly condemning, in English and in Arabic, armed attacks against Israelis – and has been working hand with hand with Israel’s security forces in maintaining law and order in the West Bank.

As for the Hamas leaders in the Gaza Strip, they cannot leave, given the Israeli blockade, which also bars international figures from entering Gaza. Other Hamas leaders are being held in Israeli military jails, in most cases serving more than one life sentence. Therefore, their only hope of being released, if at all, would be within the framework of a prisoners' exchange deal.

In any case, if they had to choose between facing the ICC or Israeli military tribunals, most Palestinians would choose the former, believing that the latter are biased against them. Moreover, unlike Israeli military trials, which are held in camera, ICC trials are publicly screened, thus providing those involved with a golden opportunity to tell their stories to the international community.

Ultimately, I am not sure Israel would like to give Palestinians the latter privilege – all the more so given Israel’s accusation that the ICC is inherently biased against Israelis.

One way or the other, I do not think the PA fears the implications of joining the ICC vis-à-vis the chances to reach a peace agreement with Israel. The PA long ago decided that the best way to establish a Palestinian state is by taking unilateral steps – thus mimicking the steps taken by David Ben-Gurion upon unilaterally accepting the 1947 United Nation's Partition Plan, despite its rejection by the Arab world.

Anyone who visits the West Bank will be extremely astonished to witness the existence of a quasi-Palestinian state there, in territories over which the PA has actual control. In terms of the economy, law and order, education (including high education), politics, governance, the judiciary and international diplomacy – this is a closely administrated quasi-state.

President Abbas has been substantively active in the international arena, gaining much sympathy and a significant amount of recognition of a Palestinian state, receiving the support of a number of leading, powerful countries like France. He succeeded to generate a public voice for the Palestinian case, and has actually provided the international community with a clear plan for a peace agreement – although one could plausibly think that Israel, as the occupying power, would do so.

Simultaneous with the submission of its application to join the ICC, the PA authorized the court to investigate alleged war crimes committed by Israel during Operation Protective Edge last summer. This move was made possible in light of language in the statute that allows for such authorization, despite the default rule that usually only permits the ICC to deal with crimes committed after the signing process.

However, given the complementary nature of the statute, the ICC will not have jurisdiction vis-à-vis Israel if the latter displays genuine will and the ability to carry out the investigation and prosecution of any crimes that may have been committed by its chain of command.

But political intervention by Israeli politicians – inter alia, the defense minister – aimed at preventing a criminal investigation even by the Israel Defense Forces' military advocate general, is doing damage to rather than helping the Israeli case.

We learned recently that the ICC’s prosecutor has decided to open a formal criminal investigation into alleged war crimes committed by IDF commanders during Operation Protective Edge. In this context, it will be sufficient to discuss the “Black Friday” affair in Rafah, in order for Israel to be anxious about the ICC’s decision to hold such an investigation.

The only thing that can help its case is if Israel decides to hold a serious and objective internal investigation of its own, trying its commanders in criminal proceedings if sufficient evidence exist for war crimes. Israel would thus not be led by the desire to artificially bar the ICC from assuming authority, but rather by the need to prove its commitment to the rule of law.

Israel should have preceded the PA’s application to the ICC by ratifying the Rome Statute. The trouble is the issue of the settlements: I am not sure Israel would ever be willing to investigate or prosecute its own political leaders for their role in establishing these locales. However, after ratifying the statute, together with drafting a serious peace plan, initiating an honest and serious peace process, and setting up a binding date for ending the occupation and/or signing a peace agreement – Israel can be protected against the statute in this context. Until then, Israel must take the PA’s application before the ICC seriously, and calculate its steps accordingly. It would be better for Israel’s leaders, as correctly asserted by my esteemed colleague Aeyal Gross in Haaretz ("ICC inquiry is a game changer for Israel," Jan. 19), to learn the rules in accordance with the Rome Statute, thus putting aside any superficial claims of political hypocrisy.

Mohammed Wattad is a visiting assistant professor in the department of political science, University of California – Irvine.

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