When the Palestinian Authority joined the International Criminal Court (ICC) in April, commentators across the world warned that it was a provocative move that risked ratcheting up tensions with Israel and opened the door for charges against Hamas leaders. Israel’s response to the move was to suspend payments to the Palestinian Authority of the tax it collects on its behalf, a punitive measure that meant civil servants went for months without pay. The US, which provides substantial aid to the Palestinians, also hinted that it might suspend this aid if Palestine was to bring criminal charges against Israel at the ICC.
Yet for all these threats, the PA was undeterred. On Thursday 25 June, Riyad al-Maliki, the Palestinian foreign minister, is presenting a dossier to the ICC detailing war crimes and crimes against humanity allegedly committed on Palestinian territory by Israel and the Israel Defence Forces (IDF). The report deals with three main areas: illegal Israeli settlement activity, the treatment of Palestinian prisoners, and last summer’s war in Gaza. It covers the period from 13 June 2014 to 31 May 2015, and media reports suggest that among other things, it includes information about Israel’s development of 2,600 housing units in occupied East Jerusalem, and the killing of four boys on a beach in Gaza during the war. It details settlement expansion, house demolitions, land confiscation, and destruction of Palestinian property and olive trees by settlers and soldiers.
The delegation to the Hague tribunal has come in the same week as the UN’s Human Rights Commission published a report into last summer’s war in Gaza. It concluded that both Israel and Hamas may have committed war crimes, and called for those responsible to be “brought to justice”. Perhaps most relevant to the ICC claim is that the UN report made a link between possible war crimes – like the use of one-ton bombs in civilian areas – and official Israeli government policy. The submission to the ICC isn’t actually a Palestinian initiative; officials are responding to a request for information from the chief prosecutor, Fatou Bensouda, who must now decide, based on the complaint, whether to order a preliminary examination and then a full criminal investigation. States cannot be indicted, so if it is found that war crimes did take place, there will also be a question over which Israelis can be held personally culpable.
While Israel has dismissed the claim as part of a wider attempt to delegitimize and isolate the country, Palestinian officials have expressed hope. “Our goal is to lift the impunity Israel has enjoyed for 67 years,” said senior Palestinian official Mustafa Barghouti, who was involved in the writing of the report. Is this hope misplaced? It is worth noting, first and foremost, that the process takes a huge amount of time. The examination phase alone can take years; a preliminary investigation process that began in Colombia in 2005 is still going on, ten years later. Even if the ICC does pursue a formal investigation after undertaking an examination, any prosecution would take years. Thus far, the ICC has only returned two convictions and one acquittal, all relating to officials in the Democratic Republic of Congo.
Israel is not a signatory to the ICC, but plans to use third-party NGOs to pursue retaliatory claims against the Palestinians through the court. The Shurat HaDin Israeli Law Centre, a human rights group representing victims of Palestinian bombings and terrorist attacks, has formally asked the ICC to investigate war crimes by Palestinian leaders. It also sent a letter to the ICC this week arguing that Palestinian territories do not constitute a state because they lack fixed borders. In addition to this, Shurat HaDin has expressed doubts over Bensouda’s objectivity, because she has made press statements about the possibility of prosecutions against Israel.
If Bensouda decides not to move the investigation to the next stage, Palestinian officials have made it clear that they could still make their own formal criminal complaint, which they have the right to do as members of the court. If she does decide to proceed, there are still potential obstacles: the UN Security Council can suspend ICC investigations for a year, and some Palestinian officials have speculated that the US could do this, although other Security Council members like China and Russia could oppose such a move. If prosecutions do eventually go ahead, it would mean that any Israeli official indicted would not be able to travel to any of the 123 countries that have signed the court’s founding treaty.
Whatever happens next, it will be controversial. Israel sees this as the latest example of anti-Israel bias; officials believe that the country is unfairly singled out by the UN and other international bodies. For its part, the ICC is keen to show that it can pursue prosecutions outside Africa.
Although progress is certain to be slow, this is a big moment. Not only does it demonstrate the radical shift in tactic by PA president Mahmoud Abbas, from appeasement of Israel to all out hostility, but it demonstrates a peaceful means of seeking justice and progressing the aim of Palestinian statehood without depending on US-brokered peace talks, which have gone nowhere over the years. In the long-term, it could serve the stated aim of ending Israeli impunity. In the short-term, it could at the very least have a vital positive psychological effect for the thousands of Palestinians who currently feel they have no recourse to justice.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.