Hussein Ibish

Is the ICC Palestine's "briar patch?"

Israeli threats to bring Palestinians before the ICC would acknowledge Palestinian sovereignty

Palestinian President Mahmud Abbas gestures during a speech in the West Bank city of Ramallah on January 4, 2015. Abbas spoke about the steps he took to try and get membership for Palestinians to the International Criminal Court (AFP Photo/Abbas Momani)

The brouhaha swirling around efforts by Palestine to join the Assembly of State Parties overseeing the work of the International Criminal Court (ICC) is largely characterized by empty threats and other forms of humbug. Politicians, officials, analysts and commentators either genuinely don't understand the ICC's processes — I mean in its largest sense, because only a handful of real experts understand the granular details, which are not necessary to grasp the fundamental equation at work — or they are content to mislead the public for cynical purposes. Probably the emptiest and most cynical of these threats — a tall order indeed — are recent suggestions by Israeli officials that Israel might seek criminal charges at the ICC against Palestinians.

Rhetoric about the ICC is almost always rooted in some form of illusory reduction or overwrought hyperbole, all of which serves to confuse and misinform people. For years, some Palestinians and their allies have been pushing the Palestine Liberation Organization (PLO), now upgraded at the UN to the non-member observer state of Palestine, to sign the Statute of Rome and join the ICC. The implication has always been that it would then be easy to file war crimes charges against Israeli officials, military officers or others. The effect of all of this bluster has been to create an atmosphere in which many supporters of Palestine are now convinced that the ICC operates in a manner analogous to a small claims court. All that really needs to be done is to join the organization, file charges, organize the briefs and wait for the tribunal to be created and the trier of fact to rule.

Even if many people understand that this is a caricature, few seem to have really grasped how convoluted and complex the process would be for Palestinians to eventually succeed in bringing any Israelis before an international dock on ICC-related charges. Joining the ICC almost certainly became possible for Palestine once its mission at the General Assembly was upgraded to non-member observer state. Palestinians enjoy an automatic majority in every international body that represents the whole global community and operates on a one-state one-vote basis. So, while there is a process that will have to be followed, by signing the Statute of Rome last week, President Mahmoud Abbas has probably ensured that by March at the latest, Palestine can take a seat at the Assembly of Parties as a "member" of the ICC.

That's when the real difficulties begin, however. The most basic problem with bringing international criminal charges against Israelis for abuses against Palestinians begins with the question of sovereignty, and hence standing. Israelis cannot be brought before the ICC on the basis of their Israeli nationality. Israel has not ratified the Statute of Rome, and is not a member of the Assembly of Parties. Therefore, the ICC does not have jurisdiction over Israelis as Israelis. The UN Security Council could authorize an investigation that could lead to prosecutions of Israelis. This is what happened, for example, in the case of Sudan (another non-signatory), when the Security Council authorized the investigation that led to the indictment of President Omar Bashir. But the Security Council will not take any such action regarding Israel.

When Palestinians have tried to bring charges against Israelis at the ICC in the past, they have been informed that there was no basis for the Court considering the request because Israel is not a party and neither was Palestine. The ICC therefore had no jurisdiction at all, and no basis for claiming any. That all changed, at least in theory, when the UN General Assembly non-member observer State of Palestine signed the Rome Statute last week. It will be admitted to the ICC on 1 April. 

Now Palestine can try to bring ad hoc requests for investigations against Israelis on the grounds that it is an ICC member. But this will require answers to several complex questions. First, Palestine might be considered a state for purposes of acceding to the Statute, but not for purposes of requesting ad hoc investigations. Second, and similarly, the question of sovereignty will have to be resolved in Palestine's favor in order for such a request to be considered.

For example, the State of Palestine appears to be preparing to seek an investigation into last summer's war in Gaza. It will be doing so on the explicit basis of claiming to be the sovereign in Gaza, a claim to which there could be a huge number of plausible and practical objections, even if there is a strong theoretical and moral case to be made for it. Beyond that, authorizing any investigation of Israelis at the ICC would take on an increasingly political and diplomatic — as well as legal — character as the process intensifies. That applies even more powerfully to the question of any prosecution.

Would ICC prosecutors really have the gumption to investigate Israelis, let alone indict them? I suppose it's possible. But I wouldn't count on it. There's a reason why international criminal proceedings have all involved either parties that have lost wars or power struggles in their own countries, and why most recent international prosecutions and tribunals have involved Africa rather than other parts of the world in which there were at least as many horrifying abuses. The ICC operates in the same debased and unfair political space shared by the rest of the world's multilateral institutions. It's pointless to kid ourselves otherwise.

Other significant issues would have to be resolved as well. The question of retroactivity is not insurmountable, but it is difficult. Palestine was certainly not a member of the ICC framework at the time of the last Gaza war. Strong arguments would be made on both sides of the question if Palestinians and Israelis ever got to the stage in which retroactivity actually mattered because the prospect of indictments was becoming plausible.

So obviously there's been a great deal of smoke and mirrors on the Palestinian side of the ICC carnival. But the situation is at least as bad among Israelis. Israeli officials are given to insisting that the ICC is no threat whatsoever and that they are not in the least scared, or even concerned, about the vulnerability of their military — which they preposterously tout as the "most moral" in the world — to charges based on violations of international humanitarian laws and standards. Israeli government behavior, as well as all the known facts, very strongly suggests otherwise.

Indeed, concerns about the ICC were at the heart of most of the practical Israeli handwringing about the Palestinian upgrade at the UN to non-member observer state. Now that Palestinians are moving to join the Court, Israel has responded with a set of "harsh measures," including the "withholding" of Palestinian tax revenues that Israel collects because Palestine is still under Israeli occupation, and is bound to turn over to the Palestinian Authority under the Paris Protocol. This tax revenue, by the way, constitutes about 60% or more of the monthly Palestinian Authority budget at any given time, the vast majority of which is used to pay public employees in both the West Bank and Gaza.

It's not clear how long the Israelis intend to keep up this response, which is not only indeed "harsh" (and indefensible), but also highly self-destructive. Attacking the budget of the PA means attacking its ability to govern, its credibility and, sooner rather than later, its fiscal and indeed political viability. Who would benefit from that? Hamas, of course, and the Israelis know this. Last time there was a major attack on the PA budget, it led to the catastrophic downfall of Prime Minister Salam Fayyad, an eventuality that all sensible Israelis, Americans and Europeans correctly regard as a disaster. If they’re honest with themselves, they will also recognize that it was in part their own blunder, and an easily avoidable one. Yet the same foolish mistake of trying to "punish" the PLO by gravely undermining the ability of the PA to govern is being repeated, at least in the short run. The State Department, to its credit, has criticized this Israeli move, suggesting the United States has learned from that mistake.

The other major Israeli response to the Palestinian ICC initiative has been even more flabbergasting, and it constitutes what is almost certainly, so far at least, the emptiest of all the empty threats swirling around this teapot tempest: that Palestinians will have rendered themselves vulnerable to ICC investigation and prosecution by acceding to the Statute and joining the Assembly. Israel, or, I suppose, one of its allies, will then presumably launch its own requests for ad hoc investigations of Hamas or other Palestinian groups, entities, institutions or individuals.

Numerous, mostly unnamed, Israeli officials or Western supporters of Israel have been claiming that Palestinians are also vulnerable, or "more vulnerable" to ICC-related charges than Israelis might be. Noted Israeli columnist Ben Caspit recently reported that "Israel has prepared a file crammed to overflowing with the 'best stuff,' including a series of optional complaints that Israel can issue against the Palestinians in The Hague should Abbas open that Pandora’s box and release the demons inside it." He quotes a former top official at the International Law Department of the Military Advocate General as saying: "It seems to me that it will be much easier to prove war crimes committed by the Palestinians than war crimes attributed to us."

Sometimes Israeli officials are wise enough to speak in terms of lawsuits in the United States or other such venues. Indeed, at least one pending lawsuit against the PA and the PLO in the United States, holding those entities responsible for actions mainly by Hamas, is a real and bona fide headache. Similar suits in such forums are sources of legitimate concern.

But the idea, which really is being promoted by quite a few Israelis and their allies, that Palestinians could have placed themselves in jeopardy at the ICC — virtually a cliché before the Palestinians signed the Statute — beats all for emptiness of bluster, cynicism of intent and confusion of its target audience. The only way that Palestinians could be vulnerable to ICC charges would precisely be that Palestine is now a party to the Statute and, crucially, is the sovereign in the territory in which actions took place.

Even the discussion by Israelis of ICC charges against Palestinians implicitly recognizes Palestinian sovereignty in whatever part of the occupied territories would be involved. Otherwise, there is no basis for ICC jurisdiction in that territory and over those Palestinians. It can only be because Palestine has acceded to the Rome Statute and is, indeed, the legal sovereign in the relevant area. "Brer Fox, please don't throw me into the briar patch," the wily rabbit pleaded in the folklore of the American south.


Israel certainly wouldn't be foolish enough to follow through on these threats and hand Palestinians such an enormous legal and diplomatic victory. But by even rhetorically raising the possibility, those Israelis and their friends who are making the argument that Palestinians are now vulnerable to ICC prosecution themselves have certainly outbid everyone else in hot air and empty threats. Given the amount of shameless balderdash that's been circulating about Israel, Palestine and the ICC, that's an impressive achievement indeed.


Hussein Ibish tweets @Ibishblog

Palestine will be admitted to the ICC on 1 April of this year. (AFP Photo/Abbas Momani)

Attacking the budget of the PA means attacking its ability to govern, its credibility and, sooner rather than later, its fiscal and indeed political viability. Who would benefit from that? Hamas, of course, and the Israelis know this."