As mentioned in an earlier blog post this week, on Thursday the UN General Assembly voted on the PLO’s bid to become a non-member observer state. Over 130 countries voted to upgrade Palestine’s status, with 9 opposed and 41 abstaining – apart from Canada, no major country joined the US and Israel in voting no (UK and Germany abstained). One important result of this vote is that it provides the Palestinians with potential ICC membership. As mentioned in another recent blog post, there have been concerns about the effects of the vote on the peace process, and Israel views the possibility of legal action as a credible threat. In September, Bensouda stated,“if Palestine is able to pass over that (statehood) hurdle, of course, under the General Assembly, then we will revisit what the ICC can do.”
However, ICC prosecutions against Israel do not seem likely – at least in the foreseeable future. Israel is not a signatory to the ICC, and so is unlikely to cooperate with any indictments. Given the United States’ relationship with Israel, it is also unlikely that it would abstain from voting in a UNSC vote and thus allow a UNSC referral to go through. Even if Bensouda was to initiate an investigation under proprio motu powers, the prosecutor may have difficulty determining the territory under which it can exercise jurisdiction, and the requests to investigate can be time-consuming; the Palestinians’ last request was turned down three years after it was submitted (and it was turned down on a matter of jurisdiction, not on merits). Furthermore, under the ICC’s complementarity principle, Israel could argue that its courts are capable of conducting legitimate investigations on their own.
The Palestinians’ UN envoy stated that his government would not immediately join the ICC, but indicated that if it did, it would pursue Israeli settlement policy as a war crime. However, although the Palestinians could invite the ICC prosecutor to investigate the general conflict situation, it cannot dictate which specific crimes the court should choose to examine. As a result, the prosecutor could also investigate crimes committed by Palestinian extremists. Christian Wanewaser, the former president of the ICC’s assembly of states parties stated that this would make it unlikely for the Palestinians to act immediately: “I think they will let this sit for a while. They will just use the threat of resubmitting [a claim] as leverage to stop the settlement policy.”
ICC investigations and potential indictments against Israelis would possibly gain support from many who have accused the court of having an “Africa bias.” However, such actions would likely have many geopolitical ramifications, and would be detrimental to the court’s relationship with the United States. As one Western diplomat with UN experience said, “The best the Palestinians can hope for is Sudan-like situation.” In such a case, indictments would be issued, but indicted parties would likely avoid prosecution. Would other international actors (for example, the 138 who voted in favor of Palestine’s improved status) put more pressure on Israel and the ICC? Or would stigmatization, as is the case with Bashir, be “better than nothing?” (as Akhavan states).