How does ICC membership change Palestinian legal options?

The State of Palestine officially became a member of the International Criminal Court (ICC) on April 1, a move that gives the court jurisdiction over potential war crimes committed on or from the Occupied Palestinian territories — defined as Gaza, the West Bank and East Jerusalem. But that's no guarantee that complaints will be formally investigated or lead to charges.

The Palestinian Liberation Organization, acting as the government of Palestine, on January 1 lodged a declaration under the court’s Rome Statute, accepting the jurisdiction of the ICC over alleged crimes committed since June 13, 2014 — the day after the kidnapping of three Israeli teenagers sparked a massive Israeli raid on Palestinian communities in the West Bank, and eventually war on Gaza. Amnesty International has accused Israel of war crimes for its Gaza campaign in which more than 2,000 Palestinians were killed, while thousands more were wounded and at least 100,000 civilians were left homeless.

On the other hand, rockets launched from Gaza indiscriminately targeting Israeli population centers could also be examined by the court for crimes — a Human Rights Watch report branded them as such.

ICC Prosecutor Fatou Bensouda on Jan. 16, as a matter of policy, responded to the Palestinian declaration with a preliminary examination to determine whether the criteria have been met to merit pursuing a formal investigation: were war crimes or crimes against humanity committed and were those crimes grave enough to merit the court’s attention. In addition, if there were any investigations being conducted in good faith by the state – Israel or Palestine – in relation to potential cases being considered for investigation by the court, in which case the ICC would refrain from involvement.

“Those investigations have to be credible and genuine," Balkees Jarrah, International Justice Counsel at Human Rights Watch and expert on the ICC, told Al Jazeera. "The ICC is a court that was established to be a court of last resort and will only step in when that isn’t taking place."

If the office of the prosecutor decides to move forward with opening a formal investigation, judicial approval is required to proceed. But as of April 1, Palestine as a member of the ICC can refer a situation to the prosecutor, and judicial approval is not required for the prosecutor to initiate a formal investigation. Only member states and the UN Security Council, but not citizens, can refer a situation to the ICC. 

If such an investigation finds evidence that Israeli or Palestinian individuals are responsible for serious crimes, the court would request that the state in which they reside execute an arrest warrant – which would require judicial approval – and surrendering of suspects to the court. It's not hard to see why state cooperation in arresting suspects would prove challenging in the case of the Israeli-Palestinian conflict. The ICC has, for instance, been unable to bring Sudan President Omar Al-Bashir to trial despite after two arrest warrants, issued in 2009 and 2010.

Israel’s settlement activity may also be subject to ICC scrutiny for violating Article 8 of the Rome Statute, which states that the below constitutes as war crimes:

“The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

All Israeli settlements in the West Bank, East Jerusalem and other territories occupied since 1967 are illegal under international law. However, settlements continue to be built with impunity today totaling more than 600,000 settlers on lands that Palestinians would see as part of their state. 

Any future settlement developments will be subject to the court's rule.

But it is now up to the states of Palestine and Israel to use this opportunity to present cases to the ICC for investigations of war crimes, however such actions will likely not be taken anytime soon. It is more likely that both sides will use it instead to threaten the other for leverage. 

Since Palestine was officially recognized as a state by the UN General Assembly in 2012, and therefore eligible to become a member of the ICC, the Palestinians have attempted to use their application to the court as a bargaining chip. The Palestinians only submitted their application to the ICC on Dec. 31 after failing to convince the UN Security Council to vote in favor of a two-year deadline to Israel's occupation.

Israel then responded by freezing the release of tax revenues it collects on behalf of the Palestinians. Just days before Palestine's accession to the ICC was formalized, Israel announced it will release part of the taxes, a move seen as an attempt to slow the Palestinians from referring cases against Israel.