International Justice

CJ354 Endicott College

Israel vs. the ICC

Israel vs. the ICC

The Rome Statute may soon have a new signatory.

Palestinian President Mahmoud Abbas’ is expected to ask the United Nations General Assembly for an upgrade from “entity” to “observer state.” Such an upgrade would allow the Palestinian state to participate in world bodies – among them, the International Criminal Court. So, what does this development mean for Palestinian’s least friendly neighbor, Israel?

At the moment, the ICC has no place involving itself in the Israeli Palestinian conflict. None of the parties involved in the conflict are signatories – so the ICC would need a reference from the United Nations Security Council in order to get involved (So long as America has veto power, the ICC is unlikely to get any such reference, especially not in the Palestinian’s favor). However, if Palestine joins the ICC, the chief prosecutor would have jurisdiction over any war crimes taking place on Palestinian soil.

What kind of crimes might the ICC be interested in? The most likely contender would appear to be aggressive war, if the Israeli occupation could be construed to constitute unreasonable aggression. This could prove to be a formidable issue for Israel and, in turn, the United States. Though U.S. troops are to a certain extent protected by the American Service-Members’ Protection Act (The Hague Invasion Act), the US could be politically compromised if troops of one of its strongest allies were being prosecuted for war crimes. The Obama administration may be forced to take a firm stance on the ICC, and it is worth some concern that our alliance with Israel may push us in the wrong direction.

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8 responses to “Israel vs. the ICC

  1. ajanofsky November 14, 2012 at 3:21 pm

    Huge update from today’s news. Israel made an attack on Gaza today and killed the chief of Hamas’ military wing (link below). News reports suggest that this is related to the Palestinian bid for an upgraded status in the UN—that the attacks are a threat that Israel may cancel the peace accords that are in place, oust the Palestinian President Mahmoud Abbas, and take down the Palestinian authority if the upgrade goes through.

    The New York Times reports that one of Israel’s main fears is that “the Palestinians will use their enhanced status to try to gain entry to the International Criminal Court, where it could seek to prosecute Israel for its actions in those territories, like the building of Jewish settlements.” I would also assume that the “aggressive war” point you brought up could be investigated—after all, Israel did just launch an air raid on 20 targets today.

    This also highlights the ICC’s standing in international politics—even though many of our readings pointed out limitations and initial missteps of the court, it is clearly a feared organization, and just the threat of possible prosecution effects how nations act.

    The implications of this news is huge—Palestine is likely able to get UN support for its status upgrade (there’s a chance that Israel’s threat could weaken that support, but I would assume most nations friendly to the creation of a Palestinian state wouldn’t flinch at that), so the best option to avoid conflict escalation would be for Abbas to retract the bid.

    The most interesting quote I read was from Mark Regev in the Israeli government: “We are ready for Palestinian statehood in the framework of peace and reconciliation,” adding that a United Nations vote “will fundamentally undermine the chances of a negotiated solution.” It seems like the road to peace between the two will definitely be contentious.

    http://www.cnn.com/2012/11/14/world/meast/gaza-israel-strike/index.html
    http://www.nytimes.com/2012/11/15/world/middleeast/israel-heightens-warnings-over-palestinians-un-bid.html

  2. jaronsohn November 14, 2012 at 3:49 pm

    Ajanofsky, I’m not sure the two pieces of news you cited are all that interrelated. There’s nothing in the New York Times piece or the CNN piece about the strikes being in any way related to an ICC bids. Today’s strikes were an escalation of a violent conflict that has been going on (at different levels) for a very long time now. All the evidence indicates that todays strikes were a direct response to the rocket attacks that the Palestinians have launched in the past week.

    Whether Israel’s attack today was an unjustified escalation remains to be seen – and it’s certainly something the ICC would have to take into account if Palestine did join the international criminal court, but the idea that it’s a bullying tactic to discourage a UN bid is, at this point, unwarranted.

    This conflict dates back nearly 100 years, retracting the bid will not stop the violence from escalating further.

    • ajanofsky November 14, 2012 at 5:53 pm

      You’re right, I apologize—the New York Times had two linked articles on the subject and I didn’t separate the two in my mind.

      To clarify: Israel threatened today that a UN upgrade of Palestine’s status could mean the end of the Oslo peace accords and the ouster of Palestinian President Mahmoud Abbas. They are fearful of the ICC potentially investigating/prosecuting Israel for actions it has taken on Palestine.

      There were also multiple air raids conducted earlier today by Israel on Gaza, one of which killed military commander Ahmed al-Jabari of Hamas, a group that Israel has called a terrorist organization.

  3. blairebyg November 15, 2012 at 12:12 am

    I have a couple of points to make on this subject:

    1) Ajanofsky- I think the comment you made that the ICC is “clearly a feared organization, and just the threat of possible prosecution effects how nations act” is a really interesting and legitimate point. The fact that Israel, a nation with strong US support, has voiced concerns about the consequences of a UN upgrade of Palestine suggests that the ICC holds more clout than many have given it credit for. I’m curious, though, how you think the United States’ relationship with the ICC changes this situation, if at all. Would the United States’ strong support of Israel mitigate the fears of an ICC investigation of Israel because of its ability to directly (via its position on the Security Council) or indirectly (because of its dominant power in international relations) prevent an ICC referral? Obviously, this is all hypothetical since the upgrade of Palestine hasn’t yet occurred.

    2) Netanyahu said earlier this evening that “if it becomes necessary, we are prepared to expand the operation” (http://www.aljazeera.com/news/middleeast/2012/11/2012111419500140191.html). Already, six people have been killed and it’s likely that if Israel does expand its operations more civilans will be killed. Ban Ki Moon said earlier today that both sides “must respect their obligations under international humanitarian law to ensure the protection of civilans at all times” (http://www.aljazeera.com/news/middleeast/2012/11/20121114173652397372.html). Because many civilian deaths have occurred as both as a result of the Israeli occupation and of violence initiated by groups like Hamas, it will be interesting to see, if the situation in Palestine is ever referred to the ICC, whether past complaints of unbalanced prosecutions by the ICC occurs in this situation as well, in regards to the state of Israel and various terrorist/insurgency groups.

  4. dfulfs November 15, 2012 at 3:28 pm

    I’m a bit confused about this whole situation. I do believe that charges could theoretically be brought against Israel, but I don’t think this is legally a possibility right now. I think we need to remember that Palestine is not a state that is recognized by the UN or the United States, among other major players. Last year, Palestine submitted its bid for statehood to the UN, but it did not pass (see link 1). It is my understanding that the Palestinians have decided to put forth another draft for statehood on the 29th of this month (see link 2).

    When it comes to ICC recognition, I’m not sure that this will happen for Palestine until it is recognized by the UN. In April, Ocampo stated that Palestine would not be able to sign the Rome Statute until the UN had recognized it as a state (see link 3). As it is not likely that the UN will do that this time around either, I’m not sure why Palestine believes it has a chance to sign the treaty at this point in time.

    While I think that atrocities committed against Palestine, including the one happening today, could be classified as crimes warranting ICC attention, the Court will not have any jurisdiction there until the UN recognizes Palestine as a state. It is not likely that the UNSC will request an investigation, and Israel is not a member at this time. While I believe this is unfortunate, I think that the situation is in a bit of a stalemate right now. If I have missed something in the news that would refute this, please let me know!

    http://www.bbc.co.uk/news/world-middle-east-15700554
    http://www.washingtonpost.com/world/middle_east/palestinians-stay-firm-on-un-statehood-bid/2012/11/13/52b6f638-2dac-11e2-9ac2-1c61452669c3_story.html
    http://www.bbc.co.uk/news/world-middle-east-17602425

  5. Alana Tiemessen November 15, 2012 at 3:37 pm

    dfulfs: If Palestine gets accepted as an “observer state” by the General Assembly then it’s possible for it to join the Rome Statute – but only after that. The Assembly of States Parties of the ICC would decide if Palestine is eligible to join – so it wouldn’t be automatic. But given support for Palestinian statehood in the GA, it’s like that it would have similar support in the ASP.

    http://www.aljazeera.com/news/middleeast/2012/09/2012928215810916.html
    http://leidenlawblog.nl/articles/the-icc-and-palestine-round-two#.UKVge-Oe9bs

  6. dfulfs November 27, 2012 at 10:25 am

    Today, the BBC reported that France has officially announced its intentions to support Palestine’s bid for an upgraded status to a GA “non-member observer state.” Last year, when Palestine put forth a bid for an upgrade, many EU nations were a bit divided in their support for Palestine. Foreign Minister Laurent Fabius said that, “this Thursday or Friday, when the question is asked, France will vote yes.” France is a permanent member of the UNSC. The article mentioned that France is the UNSC permanent member to openly express support for Palestine’s bid.

    The Palestinians attempted to become a full member state last year, and this year they are only attempting to become an observer state. This is probably a smart move, because I don’t believe that there has been a huge increase in overt support of a full-member bid. It will be very interesting to see which way the vote goes later this week.

    http://www.bbc.co.uk/news/world-europe-20514194

    • jaronsohn November 27, 2012 at 10:28 am

      It’s not new that they’re only aiming to be an observer state – it still qualifies them to join inter nation organizations like the ICC.

      It’s fantastic to hear they are starting to get international support – I don’t think anyone sees this becoming an issue unless Israel or the US begin a major diplomatic push to block it.

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