Photo: A black woman with braided hair is photographed in front of a blue background. She is Fatou Bensouda, the Prosecutor for the International Criminal Court (ICC).

This Woman Could Free Palestine (or Just Embarrass Israel)

Background:

Prosecutor Bensouda’s preliminary examination will cover any atrocities committed in or from the Palestinian territories since June 2014, including those committed by the IDF during Operation Protective Edge.

will cover any atrocities committed in or from the Palestinian territories since June 2014, including those committed by the IDF during Operation Protective Edge. By joining the ICC, Palestine is now a party to the Rome Statute. That means that even though Israel is not a signatory to the Statute, the ICC now has the jurisdiction to indict Israelis who ordered war crimes in Palestine.

Bensouda has three options moving forward: 1) continue to collect information, 2) formally initiate an investigation into crimes against humanity, 3) formally decline to initiate such an investigation.

moving forward: 1) continue to collect information, 2) formally initiate an investigation into crimes against humanity, 3) formally decline to initiate such an investigation. Why now? Only United Nations states with “member” or “nonmember” status may be party to an ICC investigation without a UN Security Council recommendation. In November 2012, the UN General Assembly overwhelmingly recognized Palestine as a nonmember state, which opened the way for legal action via the ICC.

What to expect from an ICC investigation:

A ruling against Israel on Gaza. Bensouda has stressed that Israel is considered the occupying power of the Gaza Strip, despite Israel’s claims to the contrary. This would make Israel, not Hamas, the party responsible for the welfare of Gazan Palestinians according to the Rome Statute. However, the ICC can decline to investigate a crime already investigated by the perpetrator government - a principle known as complementarity. The Israeli army allegedly investigates its own misconduct. Whether it does so to the ICC’s standards remains to be seen.

Bensouda has stressed that Israel is considered the occupying power of the Gaza Strip, despite Israel’s claims to the contrary. This would make Israel, not Hamas, the party responsible for the welfare of Gazan Palestinians according to the Rome Statute. However, the ICC can decline to investigate a crime already investigated by the perpetrator government - a principle known as complementarity. The Israeli army allegedly investigates its own misconduct. Whether it does so to the ICC’s standards remains to be seen. A ruling against Israel on East Jerusalem and West Bank settlements. The International Court of Justice (ICJ) has already deemed the Israeli separation barrier and settlements illegal. Since Jewish settlements are part of official Israeli government policy, no internal investigation is applicable and so complementarity cannot protect Israel. Therefore Israel’s Achilles’ heel at the ICC is likely to be its settlements, not its massacres.

The International Court of Justice (ICJ) has already deemed the Israeli separation barrier and settlements illegal. Since Jewish settlements are part of official Israeli government policy, no internal investigation is applicable and so complementarity cannot protect Israel. Therefore Israel’s Achilles’ heel at the ICC is likely to be its settlements, not its massacres. Litigation and arrests warrants for war criminals. The ICJ merely gives advisory rulings, while the ICC tries individuals complicit in crimes against humanity. Israel’s punitive house demolitions and blockade against Palestinians are considered collective punishment under international law. As such, Likudniks in government and those to the right of them could become personae non gratae even if they refuse to stand trial. Netanyahu’s obstinate, colonial statements help the Palestinians’ case.

The ICJ merely gives advisory rulings, while the ICC tries individuals complicit in crimes against humanity. Israel’s punitive house demolitions and blockade against Palestinians are considered collective punishment under international law. As such, Likudniks in government and those to the right of them could become personae non gratae even if they refuse to stand trial. Netanyahu’s obstinate, colonial statements help the Palestinians’ case. Possibly nothing. Bensouda must be eager to show the world that the ICC doesn’t only prosecute African warlords. However, ruling against Israel could put the Court at odds with the United States. Though Bensouda’s ruling will be an interpretation of international law, she may also feel pressure to reach an outcome that will secure the ICC’s rising prominence. Which would accomplish that: challenging Western double standards of international law, or enforcing them?

A double edged sword? The Palestinian Authority-initiated bid may create legal complications for Hamas. The Islamist movement’s firing of upgraded fireworks in 2014 did not distinguish between civilian and legitimate military targets and may therefore constitute war crimes. Nevertheless, Hamas, which joined into a unity government with the PA last year, risks little. For one thing, the proportionality of violent aggression comes overwhelmingly from Israel, with the Israeli army killing 1,500 Palestinian civilians and Hamas killing only 6 civilians during Operation Protective Edge. For another, Palestinians who attack Israelis are already vulnerable to Israeli retaliations such as long term imprisonment, military strikes, and assassinations (which are illegal), while Israelis who order attacks on Palestinian civilians are not even vulnerable to litigation. An ICC investigation would give Palestinians much more legal recourse against Israel than vice versa. Israel knows it stands to lose from an ICC investigation, which is why it fought the bid tooth and nail. In the short term, perhaps, the bid could be said to undermine Palestinian democracy by dragging on the presidency of Mahmoud Abbas. Abbas’ constitutional term is long over, so aggressive diplomacy is his only way to buy more time and legitimacy.

Whichever way things go, Prosecutor Bensouda is unlikely to make news with her examination any time soon.

Other sources: (1)(2)(3)