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Will the ICC fail Palestine too?

One week into 2015 and we have, if you read the Israeli press, the first and most dangerous crisis of 2015

Chris Doyle

Published: Updated:

One week into 2015 and we have, if you read the Israeli press, the first and most dangerous crisis of 2015. The “nuclear option” has been taken and the state (or non-state) of Palestine has signed the deadly, dangerous, Rome statute and requested to join the International Criminal Court (ICC). The first 122 state parties were all warmly welcomed but Palestine is, as ever, an exception.

Palestine has chosen “confrontation.” “If the Palestinian Authority continues to attack us, I assume we will consider other steps” threatened Israel’s security minister. In the past, Israel has threatened to turn the West Bank into a second Gaza.

Yet surely as Israeli politicians, diplomats and spokespeople tell the world’s media on a daily basis Israel is a state that abides by the rule of law, so what has it to fear? In other conflicts and crises, the ICC is welcome but not in Israel where the court itself is criminal. The United States was all too happy to support (rightly) taking Syria to the ICC as well as Qaddafi in Libya but of course not Israel.

Israel’s image

Israel’s image will take a bashing as one of the states that considers itself above the law. The other main states not to have signed up to the Rome Statute are the United States, Russia and China, who similarly reject any attempts to have international law applied to them.

The ICC is no quick fix for Palestine. If the ICC takes up the challenge, the process will be slow, a question of years not months

Chris Doyle

The reality is that the international system once again is on trial over Palestine. A 47-year-old occupation is no closer to ending; Israel still is in breach of numerous U.N. Security Council Resolutions not least its full-scale colonization of the West Bank. The Palestinian leadership has attempted negotiations with negative results and then going to the United Nations Security Council, which failed in its duties in upholding international law and addressing threats to peace and security. President Abbas had held out for months from taking the ICC route but devoid of alternatives, what else could he do? If Palestine’s request is accepted then for the first time the ICC can exercise jurisdiction in “Palestine.” It seems very likely that Palestine will be accepted given that the ICC prosecutor has already stated that following the 2012 U.N. vote to upgrade Palestine’s state, “Palestine could now join the Rome statute.”

Palestinians and their supporters celebrated. Many see this as a chance to put Israel in the dock for the first time for its crimes, to hold a non-African Western state to account.

Yet a reality check is needed. The ICC has hardly gained itself glory since it was set up in 2002. All the official investigations have been in Africa so far, including the nine active investigations. The ICC has just had to drop its investigation into the president of Kenya and its indictment of the president of Sudan went nowhere. It is underfunded and under resourced. Is the ICC up for a battle with Israel and the U.S.?

Israeli strategy

The Israeli strategy is to pressure the Palestinians to back down, the holding back of around $125 million in Palestinian tax revenues being the first step, whilst lobbying for the withdrawal of $400 million of U.S. aid to Palestine. Israel could embark on a new round of additional settlement building yet as the Rome Statute defines these as war crimes, even Netanyahu might desist for the time being.

Should the ICC decide to investigate then a deluge of paperwork involving a blitz of tortuous legal argument will be directed at The Hague. Part of this will include claiming that the borders of Palestine have not been set so the court cannot be clear where its jurisdiction lies. Of course Israel would almost certainly not allow entry to anyone from the ICC to investigate.

The ICC is no quick fix for Palestine. If the ICC takes up the challenge, the process will be slow, a question of years not months. Whilst many will push for prosecutions over Israel’s 2014 war on Gaza this may prove challenging not least as Israel will argue that it has conducted proper investigations into these events. A far more clear-cut case could be made over issues where Israel refuses to accept the illegality of its actions. These include settlements; home demolitions and the destruction of property to build the wall inside the West Bank. The court does not act retrospectively so could only cover crimes when Palestine is accepted or perhaps if agreed, those committed post June 13, 2014. Those who command responsibility for approving settlement expansion could be held liable, so therefore this could include the prime minister and defense ministers among others. There is no immunity for heads of state or government.

Next move

But where can the Palestinian leadership go with this? Will it put all its eggs into the half-broken basket of the ICC, to focus solely on this long-winded legal route? It also has to uphold the Rome Statute, meaning that it is obligated to investigate potential war crimes, including rocketing of civilians and the killing of alleged collaborators. Otherwise it is more of the same – peaceful non-violent resistance, further futile attempts at getting a U.N. Security Council Resolution and efforts to isolate Israel internationally.

Internationally, the U.S. has criticized Palestine but what will the EU and other states that supported the ICC do? In a normal world they would be calling for Israel to sign the Rome Statute as well and encouraging Palestine, in line with their duty as state parties. Britain and France oppose this but other states may feel embarrassed to criticize in public given the brazen hypocrisy of the EU stance.

Palestine’s resort to the ICC is ultimately a sad indictment of international failure. Like a naughty child, Israel has been indulged too much by its friends for decades. The United States should not have permitted its foremost ally to be so cavalier with international law. Conflicts should never be allowed to drag on interminably as this one has. The U.N. Security Council has failed. Just maybe over the coming years the ICC can redress the balance, bring some hope of justice but perhaps above all, become the first international institution in sixty-six years to act as a real break on Israeli behavior.

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Chris Doyle is the director of CAABU (the London-based Council for Arab-British Understanding). He has worked with the Council since 1993 after graduating with a first class honors degree in Arabic and Islamic Studies at Exeter University. As the lead spokesperson for Caabu and as an acknowledged expert on the region, Chris is a frequent commentator on TV and Radio, having given over 148 interviews on the Arab world in in 2012 alone. He gives numerous talks around the country on issues such as the Arab Spring, Libya, Syria, Palestine, Iraq, Islamophobia and the Arabs in Britain. He has had numerous articles and letters published in the British and international media. He has travelled to nearly every country in the Middle East. He has organized and accompanied numerous British Parliamentary delegations to Arab countries. Most recently he took Parliamentary delegations to the West Bank in April, November, December 2013 and January 2014 including with former British Foreign Secretary Jack Straw.

Disclaimer: Views expressed by writers in this section are their own and do not reflect Al Arabiya English's point-of-view.