Claudia Mendoza: Palestine Goes To The International Criminal Court

JLC Head of Policy and Research Claudia Mendoza discusses the reasons for Mahmoud Abbas joining the International Criminal Court (ICC).

When Mahmoud Abbas went to the United Nations Security Council at the end of last year, demanding an end to the occupation by 2017, he was well aware that the chances of the resolution passing were nil.

Even if he received the nine votes required for the resolution to pass, it would have been vetoed by the US. As the motion fell short of one vote, with the Nigerians apparently having a last minute change of heart, a US veto was unnecessary.

The fact that the final version of the resolution added a demand for a State of Palestine “with East Jerusalem as its capital” as well as a reference to Palestinian prisoners held in Israeli jails meant that the UK and others had to abstain. Indeed, the final draft was radically different from the initial draft which was more diplomatic and had called for Jerusalem to be a “shared capital of the two states which fulfils the legitimate aspirations of both parties”.

But for Abbas, success wasn’t a passed resolution but a failed one, for a failed resolution gave him licence to finally join the International Criminal Court (ICC) – something he promised to do if his stunt at the UN failed.

And so, after years of threating to do so, Abbas has finally surrendered his one remaining bargaining chip at the negotiation table and joined the ICC, opening up Palestinian territory to future ICC investigations. The stated aim of such investigations is to put Israeli soldiers and officials on trial for ‘crimes against humanity’.

In principle, the PA's move enables the ICC to assert jurisdiction over future developments in the West Bank and Gaza Strip, and empowers any signatory to the Rome Statute (currently including 160 countries) to claim that Israel should be brought to the court on charges of war crimes.

The Prosecutor of the ICC, Fatou Bensouda, has already opened a preliminary examination of the ‘situation in Palestine’. A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation.

The court also needs to consider if these crimes have not been, or are not being, genuinely investigated and prosecuted in a domestic court. It also needs to consider the gravity of the crimes (the Gaza-bound flotilla in 2010 for example may or may not have constituted a war crime but was not considered to be of ‘sufficient gravity’ to pursue an investigation as only 10 people had died), and finally it has to consider that an investigation would be in the interests of justice.

To provide some perspective, a preliminary examination in Colombia has been ongoing for more than 10 years with a formal investigation still not opened. If an arrest warrant has been issued for an individual and that individual travels to a country which has signed the Rome Statute, then that country is obliged to execute the arrest. It is worth noting that President Bashir of Sudan has travelled to some of those 160 countries, and that these states did not execute the arrest warrant, mostly for political reasons. Obviously, the existence of an arrest warrant does not provide the best optics in the international arena and anti-Israel activists would use any ICC conviction as further justification for BDS against Israel.

The ICC’s lengthy preliminary investigations, such as that of Colombia, and the fact that it has only ever secured two convictions (both against African warlords) has attracted criticism. With jurisdiction in Palestine – a conflict area with much international attention - there is an opportunity for the ICC to gain some eminence. Politically however, it is on dangerous territory, not just because of opposition from world powers such as Canada and the US, but also because cooperation from Israel will not be forthcoming.

Given the nature of the ICC, the likelihood of any Israeli official actually being prosecuted is slim. What is certain however is that acquiring ICC membership when Israel is in an election period means that the diplomacy tract has been well and truly shut down. So while Abbas stands on a platform of demanding justice for the Palestinians, this move has made prospects for peace - and real justice - less likely than ever.