An ICC Investigation of Possible War Crimes in Palestine Could Benefit All Involved
By James A. Goldston
Israeli Prime Minister Benjamin Netanyahu has preemptively dismissed the findings of the United Nations Commission of Inquiry into last year’s Gaza conflict as “a baseless automatic accusation” not worth wasting the time to read. But he should remember one thing: the International Criminal Court (ICC) is currently examining whether war crimes and crimes against humanity have been committed in Palestine since June 2014. Like it or not, the commission’s report will now be considered, along with a panoply of other evidence, as the court’s analysts and investigators pursue their probe.
The Obama administration and Israel have butted heads on other issues, yet they are united in opposing the ICC’s role in Palestine. But their most oft-cited objections—that the court is biased against Israel, and that a criminal investigation will disrupt the “peace process”—are baseless.
There is, unfortunately, no ongoing negotiation to disrupt. To the contrary, by placing pressure on both sides to address crimes, an ICC investigation might even kickstart a peace process that has sputtered to a standstill. And the claim of bias is a canard. As the prosecutor, Fatou Bensouda, has made clear, the ICC examines suspected crimes by all parties, both Palestinian and Israeli. That is the way the court works.
The more important question is whether the ICC can contribute to accountability in a situation where impunity has reigned for years. And that is by no means certain.
The challenges are daunting. Can the ICC get access to the territory? Media reports suggest court staff are seeking to visit Palestine in the next month. Will Israel, which controls access, let them in?
Then there are the vexing legal issues. Is Palestine even a state? If so, what is the extent of the territory over which the ICC may exercise its authority?
Attributing individual criminal responsibility for urban violence in last summer’s Gaza conflict is difficult enough. How to do so for the decades-long policy by which Israel has settled hundreds of thousands of its citizens in Palestine? The court’s temporal jurisdiction in this case extends back to June 2014, but the longer history of Israeli settlements may well be relevant as evidence of alleged crimes involving the transfer of civilians into occupied territory.
Finally, there is the question of competence. Can the court, which has stumbled in Africa—dropping charges against Kenya’s President Kenyatta, and putting on hold its case against Sudan’s President Bashir—achieve success where so many have failed before it?
For the parties, the ICC offers not just problems, but opportunities.
Will Israel, whose prime minster has warned that “Israel will not have its hand tied by a politicized ICC,” show that it can render justice for crimes committed in last summer’s war—and thus that the ICC is not needed?
The early results are not promising. Just two weeks ago, Israel’s military advocate general said that no criminal charges would be filed or disciplinary action taken against those involved in airstrikes that killed four young boys as they played on a Gaza City beachfront, an episode that spurred worldwide condemnation. The Israeli Defense Forces also ended investigations of other suspected crimes, including an Israeli attack that killed at least eight members of the Najjar family in their home in the Gaza city of Khan Younis.
For Palestine, the ICC provides a chance to persuade the world to take seriously its aspirations for statehood. This would require, among other things, that different political factions rise above internecine conflict and punish criminals who, as recently as several days ago, launched rockets at Israeli civilians across the border.
And for Washington, the ICC’s inquiry is a way to demonstrate its commitment to justice for all, even when one of its closest allies comes under scrutiny. Rather than disparage the process, President Obama might recall his advice five years ago to Kenya’s leaders, just as the ICC turned its attention to that country’s violence, to “cooperate fully with the ICC investigation” and “mov[e] away from impunity and divisionism toward an era of accountability and equal opportunity.”
Members of Congress threatening to cut aid to Palestine should know that, now that the case is before the court, it is the judges—not any individual prosecutor or government—who will ultimately decide whether a formal investigation is launched and where it leads.
Allowing the judicial process to run its course seems the least the world can do for victims on all sides of this bitter divide.
James A. Goldston is the executive director of the Open Society Justice Initiative.