On the road to the International Criminal Court

In 2004, 14 out of 15 judges at the International Court of Justice (ICJ) deemed that Israel’s “separation barrier” in the occupied West Bank was illegal.  They found that its presence both protected and preserved the annexation of illegal settlements, restricted freedom of movement, and curtailed Palestinian self-determination. It was Israel’s obligation to dismantle it, the judges said, and pay damages for the destructive effects of the barrier.

Britain, America and Israel resisted the ruling; they claimed that the ICJ was not an appropriate vehicle for solving a bilateral political dispute. Yet the three nations were by far outnumbered when the UN General Assembly voted 150 to six in favour of the ICJ’s verdict. The details bear striking similarities to the events surrounding the recent upgrade of Palestine to non-member observer status at the UN.

In the days that preceded Palestine’s UN bid, in return for its support Britain wanted Palestinian Authority President Mahmoud Abbas to give an undertaking that he would not take Israel to the International Criminal Court (ICC). Opponents of the bid insisted that it would undermine bilateral negotiations set out in the Oslo Accords in 1993.

But, like the 2004 ruling, they were outnumbered. On November 29th this year the General Assembly voted in favour of the Palestinian bid, 138 to nine, with forty-one countries abstaining. Like it or not, Palestine can now pursue legal claims against Israel at the ICC.

Britain’s suggested ‘conditional’ support actually contradicted the very idea of statehood and the benefits that come with it, including the right to pursue justice using international courts. Instead, everybody was talking about how, if Palestine were upgraded, it would be able to make requests for the court to prosecute Israel on a number of fronts: crimes against humanity, war crimes and the crime of apartheid.

For ICC prosecutions to go ahead, three major factors need to be addressed. The first requires an effort from the Palestinian Authority to push ahead with trials. Many believe that Palestinian officials did not exert enough pressure or make sufficient effort to take advantage of the 2004 ICJ ruling that deemed the separation wall illegal.

The second is Israel’s refusal to cooperate with the UN, and the lack of UN enthusiasm to implement its own rulings. The most recent example of this is Israel’s authorisation of 3,000 illegal settlements set to cut Jerusalem off from the West Bank, in retaliation for Palestine’s upgrade at the UN. Israel does not allow weapons inspectorates to monitor their nuclear weapons facilities, nor has it dismantled the wall. In effect, Israel falls short of compliance on just about every international ruling against it.

The final factor is the ICC and its legal requirements. Requests for prosecutions will be rejected if there is ‘insufficient evidence’ for crimes that Israel commits. The ICC only investigates international crimes when national jurisdictions don’t; Israel could, in effect, convince the court that it will investigate the crimes itself.

As Michael Mansfield QC said when I interviewed him earlier this month: “This is a real test of whether the ICC means business or not.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.