Opinion

Should Palestinians seek justice at The Hague?

Ramallah has backed off from ratifying a statute that would let the ICC investigate crimes committed on its territory

December 12, 2013 8:00AM ET

by John Glaser @jwcglaser

A protest in front of Israel’s separation barrier in Bethlehem in July 2011, the anniversary of a ruling by the International Court of Justice that termed Israel's construction of the barrier as illegal.

Musa al-Shaer/AFP/Getty Images

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.

'The most dangerous issue'

The last time Palestine tried to take Israel to the ICC was in 2009, following Operation Cast Lead, Israel’s military assault against Palestinian militants in Gaza, in which an estimated 1,400 Gazans were killed and 5,000 were injured.

Israeli officials said they launched the operation in response to Hamas rocket fire from Gaza, which they said broke a cease-fire that had been in place since June 2008. But Israel was in fact the first to break the cease-fire, in November 2008, when, as U.S. News & World Report explained at the time, “Israeli commandos killed a team of Hamas fighters during a raid” that “set off more Palestinian rocketing, which prompted further Israeli attacks.”

Israel’s actions were widely condemned by human rights organizations. The U.N.’s fact-finding mission found in September 2009 that both Israel and Hamas had committed war crimes.

A U.S. State Department diplomatic cable released by WikiLeaks in 2011 revealed that Israel feared the prospect of criminal prosecution at the ICC following the operation. Avichai Mandelblit, a senior Israel Defense Forces (IDF) official at the time, met with U.S. Ambassador James Cunningham in February 2010 to request that Washington “state publicly its position that the ICC has no jurisdiction over Israel regarding the Gaza operation.”

Mandelblit “warned that PA (Palestinian Authority) pursuit of Israel through the ICC would be viewed as war by the GOI (Government of Israel).” Also at this meeting was the head of the IDF's international law department, Col. Liron Libman, who “noted that the ICC was the most dangerous issue for Israel.”

The fact that the U.S. and Israel are particularly motivated to stop the Palestinian Authority from initiating war crimes investigations at The Hague is indicative of a distinct worry, both that such a process would represent an enormous political blow to Israel and that Israel might be found guilty.

No more impunity

U.S. or Israeli officials would never acknowledge it publicly, but the contention that Israel has violated international law in its occupation of Palestine is, for many high-level observers, uncontroversial.

The International Court of Justice, the U.N. General Assembly and the U.N. Security Council, for example, have all officially condemned Israel’s settlement policies in the West Bank as illegal under international law.

The United Nations Human Rights Council (UNHRC) stated in a report issued in January 2013 that Israel’s settlement policies violate Article 49 of the Fourth Geneva Convention, which prohibits the transfer of civilian populations into occupied territory. The report said the settlements are “leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian state and undermines the right of the Palestinian people to self-determination.”

Unity Dow, one of the UNHRC judges who contributed to the report, said in a statement: “The magnitude of violations relating to Israel’s policies of dispossessions, evictions, demolitions and displacements from land shows the widespread nature of these breaches of human rights.”

If the Palestinian Authority simply ratified the Rome Statute of the International Criminal Court, the treaty that established the court, the ICC could then begin the process of indicting Israel for these crimes. As the UNHRC report noted, “Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.”

But direct threats by both Israel and its principal patron, the U.S., have apparently frightened the Palestinians into abandoning plans to pursue Israel at the ICC, at least for the time being.

Publicly, Israel and the U.S. argue that attempts to prosecute Israel would undermine so-called peace negotiations.

“But during 20 years of on-and-off negotiations, impunity for rights abuses and laws-of-war violations has fueled animosity and made negotiators' jobs more difficult,” Van Esveld of Human Rights Watch wrote. “The absence of credible accountability mechanisms has hardly proven an advantage in bringing the conflict to an end.”

If Palestine continues to be intimidated into not pursuing Israel at the ICC, then decades of war crimes will be swept under the rug, rendering the rule of law and any prospect for a just settlement of the conflict unattainable.

John Glaser is based in Washington, DC. He has been published in CNN, Newsweek, The National Interest, Reason, and the Washington Times, among others.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.