Palestine and the ICC: Will there be an investigation?

Editor’s note: This is part two of a two-part article. Read part one here.

The road to the commencement of an International Criminal Court investigation and then a trial is still a long and complicated one. The Prosecutor will have to open a preliminary examination into the situation in Palestine – a precursor to the opening of an investigation proper. But will she?

This question does not have an obvious answer. The Prosecutor’s office is currently conducting preliminary

The ICC is a reflection of its time: It ensures accountability for certain states and permits impunity for others.

examinations of ten cases in Honduras, Ukraine, Iraq, Afghanistan, Colombia, Georgia, Guinea and Nigeria. As we have seen, the former ICC Prosecutor took over three years to decide (in a two-page document) that he could not decide on the status of Palestine. In light of this record, we can easily imagine a situation in which it will take years for the ICC Prosecutor to decide on the preliminary question whether to open an investigation or not.

It should also be noted that the UN Security Council has the power to prevent the initiation of an investigation (or its continuation) for a period of 12 months, which is renewable, through resolutions adopted under Chapter VII.

In determining whether to initiate the investigation the Prosecutor considers whether: (1) there is a reasonable basis to believe that a war crime, crime against humanity or genocide has been committed; (2) the case is admissible (complementarity and gravity – see below) and (3) that the investigation serves the interests of justice.

How did we get here? Read part one here

In the Mavi Marmara Flotilla incident (referred to the ICC in May 2013 by the Comoros Islands – the State to which the ship was registered), the ICC Prosecutor concluded on November 2014 that her office would not open an investigation as “the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.

The complementarity principle – the cornerstone of the ICC – states that only if the relevant State is unwilling or unable genuinely to carry out investigations or prosecutions is there any potential for the ICC to step in. Similarly, if a case has been investigated and closed (unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute) the case is not admissible before the ICC.

Now, even if the Prosecutor starts an investigation, if the State informs the ICC that it is investigating, the Prosecutor is obliged to defer to that State’s investigation until the Court, on the application of the ICC Prosecutor, decides otherwise. Thus the complementarity principle may quite effectively shield states with a functioning judicial system. In the situation in Georgia, for example, the ICC Prosecutor has been examining domestic investigations for the last 6 years. Although no prosecutions have been initiated at local levels, the ICC Prosecutor has not commenced an investigation.

The risk that exists is that in Israel investigations, examinations, procedures and committees will be established in order to decide whether to open criminal investigations against Israeli officials and/or military personnel. As experience shows, this process can take many years.

For example, in 2002 the Israeli High Court of Justice was called upon to review a decision not to open a criminal investigation against those allegedly responsible for the killing of Hamas leader Salah Shehadeh by dropping a one tonne bomb on his home at midnight in a densely populated area – killing 15 people, including Shehadeh’s wife, daughter and seven members of a family in a neighbouring house.

The Court deferred the question back to the State, which established an ‘independent’ committee composed exclusively of former Israeli military officers. It took the committee 8 years to reach a decision not to open any criminal investigation. While this prolonged procedure was intentionally futile in term of accountability, it was very effective elsewhere: it blocked a parallel investigation that was opened in Spain on the basis of its domestic universal jurisdiction legislation.

Israeli investigations following the Gaza 2014 war

Israel has officially announced that it has opened 13 (military) criminal investigations into incidents during its offensive on Gaza in July-August 2014. These include investigations into the killing of 27 members of the same family of which 19 were minors and two were pregnant; some looting cases; the targeting of a UNRWA school in which 15 civilians were killed; the use of persons as human shields and firing over ambulances.

A dozen of these examinations were subsequently closed with no criminal charges arising from them. Others are still ongoing, most notably the indiscriminate firing in Rafah (‘The Black Friday’) in which 130 Palestinians and a large number of children were killed following the capture of an Israeli soldier and the activation of the ‘Hannibal Doctrine’.

The Hannibal Doctrine allows the massive use of force in order to rescue a captured soldier, even if this risks his or her life. This is to prevent a situation in which Israeli soldiers are captured and to avoid by all means the political embarrassment and costs involved (such as bargaining for the exchanging of prisoners, as happened with Gilad Shalit).

On 31 December 2014, a few days before Israel’s military investigative authorities were supposed to announce if a criminal investigation into this event would be opened, recordings from the army’s field-radio network during the battle in Rafah were leaked to Israeli press. These included the full names low level commanders, in which a commander is heard saying: “stop the shooting, stop the shootings, you idiots”. The General in Chief ordered the opening of a criminal investigation over the leak.

In a strong letter issued by B’Tselem, a prominent Israeli NGO, on 4 September 2014, the following is stated:

B'Tselem has decided … not to assist the Military Advocate General (MAG) Corps in any matter concerning such investigations... We have adopted this position in light of our experience with previous military actions in Gaza, which shows that investigations led by the MAG Corps do not promote accountability among persons responsible for such violations or reveal the truth.”

As Israel has a judicial system with a strong international reputation – the complementarity principle may effectively shield Israeli officials and/or military personnel from the reach of the ICC. Quite cynically we may end up with a Court that will investigate only crimes committed by the Palestinians if their legal system is held to be unable to investigate and prosecute allegations of criminal activity committed by its nationals. Given the long-running Israeli occupation, the separation between Gaza and the West Bank, and the stunted capacity and strength of its national institutions, this is a very real possibility.

Reflections

The threat of joining the ICC was seen as the Palestinian “nuclear option”. The comparison is ironic in one sense, however: With nuclear weapons it is the threat of their use, and not actual use, that has the most effective impact.

The ICC is a reflection of its time: It ensures accountability for certain states and permits impunity for others. While the ICC was created as an institution outside the UN system, through a treaty that all states can join, it nonetheless functions within the framework of the existing international balance of power. Not only does the UN Security Council (three of the UNSC’s veto-wielding permanent members – the US, China and Russia – are not ICC State Parties) have the authority to refer a situation anywhere in the world to the ICC. It also has the power to stop any ICC investigation or prosecution.

It is worth emphasizing that at present, the ICC has only dealt with citizens of African countries who are politically weak on the world stage. Since its creation in 2002, 12 persons have so far been in the custody of the ICC.

The struggle for global justice and human security against any form of oppression is an ideological and political struggle that cannot be resolved in a courtroom. This is important to remember not only for the Palestinian situation, but also for the future functioning of the ICC in general.

Legal institutions are the consequences of a political vision, and they reflect existing political powers and structures. They cannot in of themselves change the balance of power nor the vision. After all, justice is not a ‘nuclear option’ but an ethical value. And if we have created an ICC only for it to be wielded as an uneven political tool, then it will not last long.

This is part two of a two-part article jointly published with Orient XXI. Read part two here.