Academic journal article Global Governance

Palestine in the Hague: Justice, Geopolitics, and the International Criminal Court

Academic journal article Global Governance

Palestine in the Hague: Justice, Geopolitics, and the International Criminal Court

Article excerpt

Palestine's request that the International Criminal Court investigate crimes allegedly committed by Israel on its territory presents the court with a major investigative and institutional challenge. To this point, the ICC has generally avoided situations where major powers strongly oppose court involvement. The prosecution's cautious selection of situations has in turn allowed for an accommodation between skeptical major powers and the court. An investigation in Palestine, which the United States and other major powers would oppose, could unsettle that fragile truce. This article considers how the situation in Palestine came before the court and analyzes several options available to the ICC prosecutor. Keywords: international criminal court, Palestine, international law.

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On 1 April 2015, Palestine joined the International Criminal Court. The 123rd ICC member state, Palestine immediately became its most controversial. Israel's Foreign Ministry described its accession as a "political, hypocritical, and cynical maneuver." (1) The United States expressed regret about the court's involvement, calling any ICC scrutiny of Israel a "tragic irony." (2) For their part, Palestinian officials insisted that they seek "justice, not vengeance," and major human rights groups hailed the move as a step toward potential accountability for all parties.

Palestine had signaled its desire to join the court long in advance, and International Criminal Court (ICC) accession forms part of a broad strategy of employing international organizations and law to solidify Palestine's global standing and increase diplomatic pressure on Israel. Palestine has joined a range of international and regional organizations, including the UN Educational, Scientific and Cultural Organization (UNESCO) and the Inter-Parliamentary Union, and signed on to major international treaties, including the Geneva Conventions. But Palestinian leaders have seen the ICC, which could threaten senior Israeli officials with prosecution, as a particularly potent tool for altering the diplomatic dynamic. "It changes everything. It changes the balance of power," one senior Palestinian official insists. (3)

Palestine's ICC membership adds an additional level of complexity to Middle East diplomacy. But the court's involvement is unlikely to be a decisive factor in the long-standing conflict. Recent experience provides scant evidence that international justice mechanisms--even those that enjoy strong political and financial support--can alter the dynamics of deep-rooted conflicts. Large-scale ethnic cleansing occurred in Kosovo even after leaders in Serbia witnessed high-level international prosecutions in neighboring Bosnia. Conflict and systematic abuses have continued in Sudan and Central African Republic despite active ICC investigations and prosecutions. Whatever its other virtues, international justice has not yet proven an effective conflict management tool. (4)

For that reason, Palestine may be more consequential for international justice than international justice is for Palestine. Palestine's accession marks a daunting challenge for the ICC that could become a watershed moment in its development. An investigation in Palestine would be the most politically explosive that the young court has undertaken. It could involve prosecutions of nonmember state nationals and place the court's prosecutor in direct and open opposition to the United States in a way that has not happened since the court began operating in July 2002. The two ICC prosecutors--Luis Moreno-Ocampo (2003-2012) and Fatou Bensouda (2012-present)--have demonstrated marked caution regarding the situations they select to investigate. The office of the prosecutor (OTP) has thus far stayed away from conflicts involving major powers. And unless it has had the UN Security Council's backing, the OTP has avoided investigations targeting the nationals of nonmember states. …

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