Will joining the ICC finally lead to justice?

On January 2, 2015, Palestine formally submitted its credentials to the International Criminal Court (ICC), which were promptly accepted. The ICC’s much-criticized former prosecutor, Luis Moreno Ocampo, had previously rejected Palestine as a state party. However, the current prosecutor, Fatou Bensouda, already made clear in August of 2014 that, due to its change in status by the UN, “Palestine could now join the Rome Statute”.

It must be regarded as an encouraging sign that the ICC takes an interest in crimes committed against Palestinians.

A day earlier, on January 1, 2015, the Palestinian Authority had lodged a declaration in accordance with article 12, paragraph 3 of the Statute, that it accepts the Court’s jurisdiction from June 13, 2014 onwards, for the crimes referred to in article 5 of the Rome Statute, when committed on its territories.

What now?

It is likely that the prosecutor’s preliminary examination will take some time before it is clear what the next steps will be by the ICC.

The ICC has jurisdiction over all the crimes listed in the Rome Statute. This includes war crimes. Accordingly, the article 12 (3) declaration that was lodged by the Palestinian Authority creates retrospective jurisdiction over war crimes that were allegedly committed as part of Israel’s military operation Protective Edge, launched on July 8, 2014. A full investigation could help establish the truth about what happened in this most recent war in Gaza, including what crimes were committed by either side to the conflict, and which individuals should be held responsible for those crimes.

But beyond war crimes in Gaza, the Rome statute also gives the ICC jurisdiction over other relevant international crimes, including the transfer of population, forced disappearances and apartheid.

The crime of transfer of population: States may not deport or transfer parts of their own civilian population into a territory they occupy. This is considered to be a war crime. This brings the establishment of Israeli settlements on Palestinian territory within the areas that can be included in the prosecutor’s preliminary inquiry. Considering the 1979 UN Security Council Resolution 446 and the 2004 International Court of Justice advisory opinion, it seems unavoidable that it will be one of the main points of focus of the prosecutor. 

The crime of enforced disappearance: An enforced disappearance takes place when a person is arrested, detained or abducted by the state or agents acting for the state, who then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law. 

Enforced disappearance is a so-called continuing crime. This means that even if the disappearance began in the past, the crime is still regarded as being committed today. This essentially means that the ICC has jurisdiction for all enforced disappearances that ever took place on Palestinian territory and that remain unresolved.

The crime of apartheid: The ICC also has jurisdiction over the crime of apartheid. The crime of apartheid is defined by the Rome Statute as “inhumane acts of a character similar to other crimes against humanity, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”

Successive United Nations Special Rapporteurs have described the situation in the West Bank as an apartheid regime, referring to a myriad of measures, including Jewish-only settlements, military check-points, the wall, separate roads for Palestinian citizens and a discriminatory legal regime directed at Palestinians resident in the occupied Palestinian territories, including the West Bank (including East Jerusalem) and Gaza.

Since this situation continues today, the jurisdictional starting point of 13 June 2014 is not an obstacle. The reports by the two Special Rapporteurs alone should be sufficient for the ICC prosecutor to include this crime in her preliminary examination of the situation Palestine. The ICC could potentially bring charges against political leaders and military commanders who were regarded as the masterminds of the apartheid system.

Opponents from all sides

Opponents of the ICC move come primarily from Israel and its supporters, but also from Palestine and its supporters. Israel has long objected to the Rome Statute’s inclusion of certain offences, and – consistent with Israel’s critique of nearly every other international organization and agency – challenged the ICC’s impartiality and independence. More recently, officials have claimed that all Israelis fear the ICC’s intervention, since both men and women serve in the Israeli military and, they argue, all could be charged by the ICC. Such hollow arguments, apart from being unsubstantiated, disregard the fact that the ICC will only investigate the most serious offences, committed by high-ranking military commanders and senior government officials.

Meanwhile, there are pro-Palestinian commentators who argue that the ICC will shift the focus from the main problem towards individual violations. Such critiques tend to focus exclusively on war crimes. It would seem reasonable to assume that the individual violations of settlements, disappearances and apartheid touch at the very core of the problem. 

It is also important to acknowledge that, despite its having approached the ICC, many Palestinian groups may not be overly enthusiastic for certain crimes to be brought to the attention of the prosecutor.

Substantial critiques of the ICC’s intervention, such as by Mazen Masri, Noura Erakat and others charge that the ICC is “political” and that the “odds are stacked against Palestinians in the courtroom”. It thus follows that any expectations one might have regarding the ICC’s intervention ought to be tempered by a range of internal and external capacity and political challenges faced by the Court, all of which have challenged the Court’s legitimacy.

These are fair critiques, and indeed we have made similar critiques of the ICC ourselves. However, one may also expect that the ICC, which is still very much in its early stages and eager to distinguish itself as being interested in more than just crimes committed in Africa, will soon take up its originally-intended role as an institution committed to ending impunity for the worst international crimes.

The limits and potentials of the ICC

The ICC does have limitations. It cannot return civilians from the dead, nor can it end the occupation. The ICC can neither demand the return of refugees nor can it address critical questions of self-determination. Furthermore, the ICC cannot hold the state of Israel accountable, only individuals, and its jurisdiction is principally limited to crimes that took place after 13 June 2014 (with the exception of certain, continuing crimes we identified earlier). In short, many core injustices are excluded from the jurisdiction of the court.

However, there is potential as well. The ICC could be a real game changer in the decades-long impasse that has existed since the State of Israel came into being in 1948, resulting in the exclusion of several hundred thousands of Palestinians who lost their lands, homes and livelihoods.

With the ICC, there is finally an institution to turn to, for family members of Palestinian children and teenagers who are reportedly disappeared by occupation forces on a daily basis, and for all Palestinians living under a legal and military regime that discriminates at a very broad, structural level.

It should not, however, simply be a waiting game. Until the ICC completes its preliminary investigation, it is important for anyone interested in international justice to uphold the ICCs impartiality. Furthermore, it is important to provide whatever evidence of crimes one may have. Above all, no state should interfere with the ICC while the prosecutor embarks on the perilous task of what many anticipate will be a full-scale investigation, either with or without the co-operation of Israel, or any other party for that matter.

There are other, potential spin-offs as well. Mustapha Barghouti made clear during a recent interview that the ICC’s launching of preliminary enquiries is likely to reinforce the global Boycott, Divestment and Sanctions campaign that has shown remarkable success in recent years.

Justice will come slowly, if it comes from the ICC or any other institution. But it must be regarded as an encouraging sign that the International Criminal Court takes an interest in crimes committed against Palestinians, which Israel regards as outrageous.

Time will tell whether this optimism is well-founded or empty sentiment.