On November 29th 2012, Palestine was voted by the United Nations General Assembly to be a non-member observer state. Although seen to be a largely symbolic vote, this decision provoked huge hopes, fears and discussions because the “media” thought that Palestine could now take Israel to the International Criminal Court and prosecute them. This gained so much traction that the international community and Abu Mazen started to use the threat of the ICC as their main hope to force Israel to make new concessions. However, upon further inspection into how the ICC operates, it becomes clear that Israel has little to worry about.
In 2002, the International Criminal Court was created with the hope of fighting crimes against humanity. The court only has jurisdiction over the states that are parties to its statute (countries that volunteered to be in it), which at this point in time, is 122 countries. For the most part, countries that are unlikely to be involved in conflict have joined the court, while those likely to be involved in conflict have not.
Israel for obvious reasons is not a party to the ICC. However, Palestine has attempted to give jurisdiction of their territory to the ICC with the hope of being able to prosecute Israel. After operation Cast Lead in 2009, Palestine tried to involve the ICC but had their request denied because they were not considered a state. Palestine believes that now, after the UNGA vote that the ICC would accept their case.
I will detail some of the hurdles that the Palestinians could face if they attempted to appeal to the ICC to prosecute Israel. The first is whether the PLO could even have their case heard. The ICC only hears cases if the Security Council refers them to it, or if the state is a party to the court. Nobody knows if the ICC will accept Palestine as a state even with the general assembly vote and without this, the ICC cannot hear a case regarding Israel. In 2009, the first time Palestine attempted to take a case to the court, it took three entire years before the ICC made a ruling on whether to hear the case or not. Whatever the court decides, it will take a significant amount of time before anything actually happens.
There is also the issue of politics. The ICC presently has low credibility and is seeking to increase its membership and presence in international affairs. If the ICC were to accept this case, it would have far reaching implications outside of Israel’s borders. Every state currently in a land dispute, or with soldiers on a foreign soil would feel threatened. The decision to hear this case would not only alienate Israel, but many other important countries in the world.
The ICC can only make rulings on a state’s territory, however the borders between Israel and Palestine are undefined and the ICC responsibility is not to produce borders. Even if the ICC were to accept the 1949 armistice lines with Jordan as the defined border of Palestine (which were specifically stated to not be borders), there would still be even further complications. In the 1949 armistice agreement, there is a vast swath of land known as “no mans land”. This land was never under Palestinian or Jordanian control, so it is extremely unlikely that the ICC could have judgment on anything that falls into this area.
Similarly, Before the Independence war, Jerusalem was supposed to be under international sovereignty, and as a result, the international community did not even recognize Israel’s sovereignty of West Jerusalem. It is unlikely that the ICC would recognize East Jerusalem as Palestinian territory, thus making the Palestinian claim even weaker.
Moreover, regardless of if Israel occupies the West Bank or not, Palestine is not and has not ever been the high contracting party of the land. Additionally, through the Oslo Agreements signed between the PLO and Israel, Israel has complete criminal jurisdiction over Area C in the West Bank. Because all of the Israeli settlements reside in Area C and the PLO has conceded territorial sovereignty over this land, it would make their case even more difficult.
The ICC is meant to only hear cases regarding the most severe and heinous crimes. Settlement building is not a crime that compares to the ones that the ICC has in the past dealt with, and would be outside of anything similar to what the ICC is supposed to deal with. It is unlikely that Israel has committed any actions that pass the gravity threshold of the ICC’s mandate.
Furthermore, the ICC only deals with crimes that have taken place after a state becomes a party to the court. That means that the ICC would not be dealing with anything from 1948-2013, but only specific actions that would be taking place in the future.
Lastly, the ICC can only deal with issues that are not already subject to some sort of internal review, commission or trial. What this means is that the ICC can only punish crimes that the state chooses not to investigate. Everything that Israel does in the West Bank is subject to these types of reviews. Because the IDF will review and penalize its soldiers for their actions in the West Bank, they would be immune to any sort of prosecution from the ICC. However, this leads to a much more interesting thought.
If the ICC were to accept Palestine as a state and hear their case, it means that crimes committed by Palestine would also be subject to the ICC. As the PLO does not launch any serious review, commission, or inquiry into crimes committed in their territory, it means that every war crime committed by Hamas and other terrorist organizations would be subject to review by the ICC. As the terrorist acts by these groups are much more heinous and almost certainly meet the threshold of gravity, it is much more likely that any attempt by the PLO to appeal to the ICC would lead to them being punished, not Israel.
The next time Abu Mazen tries to coerce Israel into making further concessions by threat of the ICC, understand that Israel has nothing to worry about.