Last week, Palestinian President Mahmoud Abbas signed a treaty to make Palestine the newest member state of the International Criminal Court (ICC).
The move was greeted with jubilation in Ramallah, where there were reportedly fireworks to mark the occasion, and by outrage in the Israeli government.
But the practical consequences of Palestine’s move to join the court are much less clear. Here’s what you need to know about what Palestine joining the court really means, why Israel and the US oppose the move, and what this means for the Israel-Palestine conflict.
1) So is Palestine a member of the ICC now?
Mahmoud Abbas signs international agreements, including the ICC’s Treaty of Rome, on December 31, 2014. (Issam Rimawi/Anadolu Agency/Getty Images)
Probably, but it’s not 100 percent for sure. If news reports are correct, Palestine has acceded to the ICC treaty, and thus completed the main legal process for joining the court. But there are still some significant legal questions to be worked out.
The most important question is whether the court considers Palestine a state. Only states can join the ICC, so if Palestine isn’t a state, then the membership question will be moot. In the past, the ICC prosecutor has said that Palestine couldn’t join the court until it was recognized by the UN General Assembly.
But in 2012, the General Assembly voted to recognize Palestine as a state. So, as far as the Office of the Prosecutor is concerned, Palestine has been eligible for membership since then.
However, if challenged, the prosecutor’s decision on statehood could be overruled by the court itself, which could apply a different legal standard that would be at least somewhat more difficult for Palestine to meet.
The second issue is the definition of Palestinian territory. By becoming a member state, Palestine will give the court jurisdiction over crimes occurring within its territory.
But the very nature of the Israel-Palestine conflict means the boundaries of Palestinian territory would almost certainly be a matter of dispute. That issue would also probably have to be litigated before any prosecution could proceed.
2) Does this mean that Palestine can sue Israel, or have Netanyahu dragged off to the Hague for prosecution?
The International Criminal Court building in the Hague (VINCENT JANNINK/AFP/Getty Images)
First of all, the ICC is a criminal court, not a civil one. That means that, despite headlines you may have read about Palestine suing Israel at the ICC, the ICC does not actually hear lawsuits.
And the decision about when to bring a criminal case against any individual lies with the Office of the Prosecutor, not with any particular state party. Abbas doesn’t get to force the ICC to take up his case.
What Palestine will be able to do, assuming it clears the legal hurdles described above, is refer particular “situations” to the ICC prosecutor, and request that they be investigated.
Palestine has submitted a declaration granting the court retroactive jurisdiction to June 13, 2014, which includes the Gaza invasion that summer. So any crimes that took place within that period, including those in the Gaza war, could potentially be referred to the court as part of a situation for investigation.
But it’s important to understand that if Palestine makes that kind of referral, it wouldn’t be taken as an invitation to just investigate possible Israeli crimes: any investigation would certainly look at possible Palestinian crimes as well.
The Office of the Prosecutor could investigate war crimes and crimes against humanity allegedly committed by Hamas or other Palestinian groups, as well as those allegedly committed by Israel.
In any case, it’s actually very likely that the Court wouldn’t have jurisdiction over a number of alleged Israeli crimes. That’s because of a rule called “complementarity,” which strips the court of jurisdiction over crimes that have already been investigated and prosecuted in good faith by a national court.
Israel has a strong judiciary that actively prosecutes war-crimes cases involving its soldiers (even if the courts’ decisions are often criticized as too lenient).
So to exercise jurisdiction over those offenses, the ICC would have to demonstrate that the Israeli courts had acted in bad faith, which is a high hurdle to clear — it requires more than just an acquittal.
However, the issue of building settlements in the occupied territories has not been taken up by Israeli courts, so that could be a more likely target for an ICC prosecution, as discussed further below.
3) What are the chances the ICC will prosecute Israeli leaders?
ICC Prosecutor Fatou Bensouda (TOUSSAINT KLUITERS/AFP/Getty Images)
The chances of them doing this any time soon are vanishingly small.
First of all, there are a bunch of things that would have to happen before that, and they will take a long time. The ICC will have to make a final determination on the question of Palestinian statehood, as well as the territorial limits on the court’s jurisdiction.
Then the Office of the Prosecutor will have to conduct a preliminary investigation to determine if there are serious enough crimes to warrant the court’s attention, and whether national authorities are already handling them.
IT IS LIKELY THAT PALESTINIANS, NOT ISRAELIS, WOULD BE THE FIRST TO FACE TRIAL
If the Office of the Prosecutor determines both that the crimes are sufficiently and that they are not being handled by national authorities, then the next phase is further investigation into specific crimes and individual perpetrators. All of that will take years.
But even if the court does decide to prosecute senior Israeli officials, there is no guarantee that they will actually be arrested, much less tried. The ICC has no police to execute its arrest warrants, which in practice means they often go unenforced.
For example, the court issued a warrant for the arrest of Sudanese President Omar al-Bashir in 2009 (and then again, for good measure, in 2010), and he remains in office to this day, resolutely and thoroughly un-arrested.
More broadly, the court has shown reluctance to get involved in the Israel-Palestine conflict in the past, and there is no reason to believe that attitude has changed.
In the event that the court does decide to bring prosecutions, law professor Kevin Jon Heller has pointed out that it would be far simpler to prosecute Hamas’s leaders than Israel’s, so it is quite likely that Palestinians and not Israelis would be the first ones to face trial.
The discussion around the ICC has focused on the Gaza conflict, but a number of commentators have written that Israeli settlements in the occupied West Bank could more likely lead to prosecution of Israeli leaders, both because the settlement policy’s architects are at the highest level of government, and because Israeli courts have not prosecuted the matter themselves.
That probably is the most significant risk for Israeli officials — but it doesn’t mean that the risk is large, or immediate.
4) Why is the US so opposed to Palestine joining the ICC?
Secretary of State Kerry meets with Israeli Prime Minister Netanyahu in Rome on December 15, 2014 (Amos Ben Gershom/GPO via Getty Images)
Because it’s an act of non-cooperation with the peace process, which the US believes must be negotiated directly between Israelis and Palestinians to ever achieve peace.
The US (and Israeli) position is that joining the ICC is an act of escalation by Palestinian leaders, and one that indicates a lack good-faith involvement in the peace process and that makes the peace process harder.
On December 31st, the State Department issued a statement condemning Palestinians’ decision to join the court, calling it an “escalatory” step that “badly damages the atmosphere with the very people with whom they ultimately need to make peace.”
5) Why did Palestine want to join the ICC?
Palestinian Foreign Minister Riad al-Malki and Palestinian Ambassador to the Netherlands Nabil Abuznaid visit the International Criminal Court in August 2014 (Martijn Beekman/AFP/Getty Images)
There are two theories on this. The first is that this is simply a further step in Palestine’s years-long strategy to gain recognition as a state, one UN agency and country at a time.
Previous steps have included joining UNESCO, the 2012 UN General Assembly vote mentioned above, and an ill-fated attempt to get the Security Council to vote on Palestinian statehood just last week.
The theory behind that strategy is to raise the cost of Israeli occupation by increasing pressure from the international community, and to assert the idea of Palestinian nationhood against a conflict that many Palestinians believe is aimed at robbing them of a state.
The second theory is that the Palestinians actually hope the court will bring charges against Israeli officials, and that exposing them to investigation and prosecution will increase Palestinian leverage in the peace negotiations. However, as explained above, that’s a risky strategy, especially as it places Hamas officials at risk.
6) Will this matter for the Israel-Palestine conflict?
US Secretary of State John Kerry speaks to the press in 2013, alongside chief Palestinian negotiator Saeb Erakat and Israel’s Justice Minister Tzipi Livni (NICHOLAS KAMM/AFP/Getty Images)
Yes, it will probably matter at least somewhat, for three reasons.
First, as noted above, this is an act of non-cooperation with the peace process by the Palestinians. That happens in all peace processes, and this one in particular has suffered an awful lot of setbacks before.
But when one side undercuts the peace process, that makes it harder for the other side to make difficult concessions. In this case, it may make it more difficult for Israel’s leaders to convince Israeli hardliners to agree to concessions, because they’ll be able to argue that Palestine can’t be trusted to engage in good faith. That limits the scope of negotiations, and makes peace more difficult.
At the same time, another view — the one shared by supporters of this move — is that Israel has been so stubbornly resistant to reaching a peace deal that it is necessary for Palestinians to bring greater international pressure to force Israeli leaders to make necessary concessions.
Second, ICC membership limits the opportunity to offer amnesty for leaders on both sides as part of an eventual peace deal, because the ICC wouldn’t be bound by any bilateral amnesty agreement between Israel and Palestine. In other words,
Israeli and Palestinian leaders can’t sign a peace deal in which they promise to grant one another’s leaders amnesty, because that amnesty won’t extend to the ICC. From the perspective of international justice that could, of course, be a good thing.
And it’s not clear that amnesty would ever have been a part of a peace deal anyway. But it’s still a potentially important negotiating chip that has been taken off the table.
Finally, the ICC could impact Palestinian politics if its initial investigation or prosecution focuses on Hamas, which has long feuded with Palestinian leader Mahmoud Abbas’s Fatah party. That could affect the balance of power within Palestinian politics, and make it more difficult for Palestinian leaders to negotiate with full authority.