The United States and Israel are pressuring the Palestinian leadership to forswear bringing charges against Israel at the International Criminal Court (ICC). This posture not only obstructs accountability before the law but, by implication, seems to concede that Israel has committed war crimes.
The ICC had refused to heed previous Palestinian requests for Israel to be prosecuted for war crimes, citing a lack of clarity about whether Palestine was a state, a necessary condition for the court’s jurisdiction.
But that legal technicality was settled in November 2012, when the United Nations General Assembly overwhelmingly voted to upgrade Palestine’s status to “nonmember observer state.” Now the Palestinian Authority must officially seek ICC jurisdiction, according to a Nov. 25 report from the office of the ICC’s chief prosecutor, Fatou Bensouda, before the court will consider war crimes charges against Israel.
Strangely, the Palestinians have not pursued the necessary procedures for jurisdiction.
“The main reason, current and former Palestinian officials say, is that Israel has threatened unspecified retaliation if it seeks the court’s jurisdiction, and the U.S. has reinforced the threat,” wrote Bill Van Esveld, a senior Middle East researcher at Human Rights Watch, on Dec. 6.
"The U.S. said to us clearly, conveying Israel’s position, 'Don't touch it,'" a former Palestinian legal adviser told Van Esveld.
During his Senate confirmation hearing on Jan. 24, Secretary of State John Kerry warned that “any effort to take Israel … to the ICC” would be “the kind of unilateral action that we would feel very, very strongly against.”
“The Israeli and U.S. threats cannot be taken lightly,” Van Esveld added, “given Israel's control over Palestinians' lives — at checkpoints, border crossings, and during arrest raids in their homes — and the Palestinian economy’s heavy reliance on foreign donations, including from the U.S.”
But not pursuing jurisdiction threatens the rule of international law — and the Palestinian leadership must step up to prevent further impunity for serious crimes committed on its territory.