United Nations Secretary General, Ban Ki-moon, confirmed that Palestine will officially be a member of the International Criminal Court from 1 April, 2015. The United States and Israel criticised the move with State Department spokesman, Jeff Rathke stating that Palestine did not qualify as a state.
The weight of their opposition, however, is somewhat compromised as neither are members of the ICC. Discussions from both camps highlight misunderstandings regarding the Court’s purpose and functions. And without providing sufficient context to what motivated Palestine’s application, their statements distort reality and continue to set up road blocks to any constructive dialogue.
Within the ICC, the Office of the Prosecutor has opened a preliminary inquiry into possible war crimes committed in the Palestinian territories as a matter of “policy and practice.” This involves assessing the strength of the evidence of alleged crimes, whether the court has jurisdiction and howthe interests of justice would be best served. The problem is that Palestine cannot simply “take” Israel, or key individuals in its military command, to the ICC. The ICC is complementary to national criminal jurisdictions, which means it is a court of last resort.
In December, Israel’s military opened eight new criminal investigations into its Gaza war operations. This adds to the five criminal investigations it launched in September, including attacks which killed four children on the beach and 15 at a UN school. For the ICC to exercise its jurisdiction over these offences, it would need to demonstrate that the Israeli courts had acted in bad faith. This is an especially high bar to clear, so it seems unlikely Israeli leaders will face trial for these alleged crimes.
The ICC can also investigate the legality of Israeli settlements on occupied lands. This is significant as the United Nations Security Council rejected a draft resolution which demanded an end to the Israeli occupation of the Palestinian territories by late 2017. This is likely what forced President Mahmoud Abbas’ hand. The Court, however, is based on individual criminal accountability. Individuals, not states, are investigated and it is unclear who the defendant in such a criminal case would be. Politicians, military officials, judges and private companies have all been involved in constructing and strengthening the settlements in the West Bank.
Israel’s foreign minister Avigdor Lieberman said he would recommend his government not cooperate with the inquiry and the United States described the decision as a “tragic irony.” These visceral reactions have far-reaching consequences and are less than helpful for any party involved in the conflict.
First, the international system is dependent on State cooperation. Israel even suggesting it will not cooperate undermines the larger framework of international institutions that regulate state behaviour and enhance global security. This makes it more difficult to hold other states accountable for crimes in the future, such as Syria. It also implicitly challenges the legitimacy of the Court’s previous findings on situations in, for instance, Libya.
Second, the “tragic irony” is that the United States attempting to broker peace between the two parties, is like having a player be both on the pitch and refereeing the match at the same time. George Bush in 2002 said Israeli settlement activity in the occupied territories needed to stop and Israeli forces needed to withdraw fully to positions they held before September 28, 2000. He said the interests of the Palestinian people have been “held hostage” to a comprehensive peace agreement, that never seems to come. However, this “delay” can now be attributed, more so than at any point, to the relationship between the United States and Israel.
To say the conversation on Capitol Hill isone-sided is an understatement. Congress adopted the Fiscal Year 2015 Appropriations Bill which imposes sanctions on the Palestinians if they become members of the ICC. It cuts off aid and defunds the agencies in question, as they did with UNESCO after the Palestinians joined in 2011. Presidential hopefuls, including Senator Rand Paul (R – KY), use the conflict for their own political leverage, with Paul introducing the Defend Israel by Defunding Palestine Foreign Aid Act of 2015.
The problem with this is that, should the United States continue down this path, they create a climate of animosity in which “peaceful negotiations” are expected to take place. Congressmen using inflammatory and accusatory rhetoric for political gains and passing legislation linking the health and survival of the UN system to the Palestinians, hardly suggests a genuine interest in achieving a “two state solution for two people.”
States are also increasingly reliant upon international institutions for assistance with refugees, counterterrorism strategies and global security. The United Nations High Commissioner for Refugees provides assistance to the increasing influx of Syrian refugees in Jordan. The rising burden of costs for health, education and welfare presents a security challenge for the Jordanian government. Unemployed and impoverished youth in the region compete for access to basic resources, including fresh water.
It is easy to see why this discontent and frustration provides a fertile recruitment ground for violent extremist group, ISIS. If Palestine joined the UNHCR, the US could theoretically defund the agency. As its top donor, surpassing the European Union’s contributions by $1, 000, 0000, the UNHCR’s operations in the region would be heavily impacted. ISIS’s appeal could increase in refugee camps as they continue to offer new recruits a monthly salary, accommodation, free food and even internet access.
Congress, and Congressmen, could do better than to pass legislation threatening to defund these very same UN agencies. If the United States were genuinely interested in a stable peace between Israel and Palestine, it would allow the Court to undertake its preliminary investigation without obstruction.
Words by Claudette Yazbek