The ICC and the ‘Situation in Palestine’: Political Sensibilities and Procedural Hurdles

The ICC was the third most prefered pathway chosen by Palestinian refugees (42.4%); see p.5
 
The Israel/Palestine context has long needed a game-changing moment. Since early 2015, when Palestine’s years-long struggle to trigger the International Criminal Court (ICC) jurisdiction came to fruition, the question is whether the Court’s potential role will fit the bill. In BADIL’s survey of refugees living in UNRWA camps in Jordan, Lebanon, the West Bank and Gaza about their three preferred channels to bring about a ‘durable solution’ to the conflict, 43 percent listed the ICC – a third place finish, behind the options of Security Council sanctions and supporting the BDS movement.

This apparent hesitance or at least lukewarm enthusiasm for the ICC’s potential is not misplaced. It is important to have an accurate understanding of the preliminary examination of the ‘situation in Palestine’, in view of the challenges to ICC action: its ability to face up to political pressure; its problematic professional track record, which has not inspired public confidence; and the procedural and substantive hurdles the prosecutor must overcome to bring forward a criminal case.
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Political sensibilities

As with any international institution, the ICC is a political animal: dependent for legitimacy on its proponents and susceptible to the whims of its state donors and supporters. Although the status quo of unquestioned Israeli impunity has begun to improve since Israel’s 2014 offensive on Gaza, other countries evidently still feel the need to keep the ICC’s work on Palestine at bay in the name of finding a political solution. Even the European Union, which has otherwise become fully cognizant of Israel’s unwillingness to apply international law in good faith -- for instance, in defining its territorial boundaries – previously tried to dissuade Palestine from joining the Court, and continues to encourage Israeli domestic proceedings regarding potential war crimes rather than acknowledging Israeli impunity and pushing for an ICC investigation.
 
As critics of the ICC’s work often point out, its track record so far reflects a preoccupation with African cases and an apparent reluctance to open investigations concerning Western officials and their allies. In short, it is highly sensible to high political stakes, which are embedded in the Rome Statute (which gives the Security Council the mandate to request investigations, such as into African cases), and in the ICC’s particular institutional function in the international system. The ICC’s Office of the Prosecutor (OTP) has vigorously defended its impartiality, but the Court cannot be fully insulated from political pressure nor can it carry out its functions without political support; not least because it relies on state parties to carry out arrest warrants.
 
If the ICC’s work on the situation in Palestine hinges on the Office of the Prosecutor’s ability to put aside politics, it also requires Prosecutor Bensouda’s office to obtain the facts necessary to substantiate complex legal issues. Certain allegations, particularly war crimes, may appear black and white, but crimes against humanity, such as persecution and apartheid (which has no precedent), have particularly high evidentiary thresholds. The politically-sensible need to uphold the court’s impartiality by rigorously applying existing procedural requirements – through the Prosecutor’s presentation of watertight cases based on expert analysis and a sound body of fact – means that even open-and-shut cases of international crimes are likely to take time before materializing in arrest warrants.

Procedural hurdles matter

The OTP applies rigorous criteria to assess the viability of certain cases, including its own ability to access necessary information about specific acts. In all cases, the OTP must weigh the resources required to investigate a case, as well as the feasibility of taking a case through to the investigation and prosecution stages – such as identifying specific perpetrators and accomplices, including decision-makers and commanders.^[1] That assessment will include the likelihood of Israeli non-cooperation and denial of investigators’ access to Palestinian territory.^[2]
 
While the Court’s temporal jurisdiction could go back as early as 1 July 2002, when its treaty came into force, on Palestine, the OTP has said that its work could not reach back before November 2012, when the United Nations General Assembly ‘recognized’ Palestine’s statehood through upgrade in its observer status. In fact, the temporal scope of the OTP’s ‘preliminary examination’ is, at least for now, limited by Palestine’s Article 12(3) declaration triggering the ad hoc jurisdiction of the Court, submitted in January 2015, which requested jurisdiction onwards from 13 June 2014. 
 
That being the case, the fundamental right of return of Palestine refugees would certainly not fall under the ICC’s material jurisdiction, although more recent acts of forcible transfer and systematic government-sanctioned displacement of Palestinian communities certainly would. An open-ended question in this respect, as well as in the case of settlements, concerns the temporal scope and continuity of certain violations (e.g. does the violation continue for as long as the community remains displaced).
 
It is in part because of the difficulty of investigating and prosecuting the specific cases that it considers to make up the ‘situation in Palestine’, that experts do not expect the OTP will rush to open an investigation. The OTP is not bound by any particular timeframe to move beyond the current, ‘preliminary examination’ stage of the proceedings, and some speculate that it may take three, eight, or even ten (as has been the case with other situations) to even decide whether it wishes to investigate international crimes from the situation in Palestine and which these would be.^[3]
 
The preliminary examination is bound to be fraught. Once it reaches the third stage of the examination, for instance, the OTP will conduct an assessment of admissibility issues, including complementarity – the conformity of Israeli domestic proceedings to the international duty to investigate and prosecute.^[4] This is bound to become a food fight with Israel unless managed professionally. Israel’s domestic proceedings have thus far consistently lacked transparency, impartiality and independence, and shielded both high-level decision-makers and military officials from accountability.^[5] Yet, since the 2014 Gaza war, Israeli authorities have announced their intention to undertake unprecedented investigations of decision-making processes by the highest echelons, directed explicitly at heading off the ICC’s jurisdiction.^[6]
 
Adding to the likely delay, Prosecutor Bensouda has made clear that her preliminary examination is considering the situation in its highly-complex entirety: both Palestinian and Israeli violations, in both the West Bank and Gaza Strip. Yet, in this regard, it should be recalled that the ICC’s remit is of a limited scope: when and if the OTP ultimately decides to investigate, it will investigate only those most responsible for the most serious crimes, addressing the most exceptional incidents, in light of their gravity, basis in policy, and the impact of certain cases on the dynamic of the conflict.^[7]

That being said, the OTP’s very desire to substantiate its impartiality and uphold the integrity of its work may come at the cost of issuing a timely decision. For instance, if Palestine were to submit a state referral under Article 14 (as opposed to the article 12 declaration that triggered the preliminary examination), the Prosecutor’s office would not need approval from the Pre-Trial Chamber to open an investigation, potentially hastening the process.  Yet the OTP reportedly discouraged Palestine from submitting a referral, out of a belief that the Pre-Trial Chamber’s stamp of approval is important for its impartiality;^[8] as it means there will be heightened scrutiny of both prima facie evidence and the assessment of the likelihood of success in taking the case forward.^[9]

Principled political support

Civil society should be aware of these shortcomings in its engagements with the ICC. While it is too early to know whether the Prosecutor’s office will engage in foot-dragging in the face of political obstruction, civil society should adopt a supportive and coherent approach to interactions with the Prosecutor’s office to monitor and redress either prospective external pressures or procedural obstacles. Such exchanges should carefully consider and seize opportunities to influence the OTP’s prosecutorial strategy, both in terms of her choice of cases, as well as her intention to examine the situation in its entirety before proceeding with any investigations. The latter may prove an unreasonably burdensome task that might come at the expense of the operationalization of the court’s deterrent role – presenting civil society with an opportunity to argue for a ‘batched’ or ‘sequential’ approach to investigations.
 
Moreover, since it is often the case that opponents of international justice for Israel used the well-known tactic of seeking to undermine the facts documented by blaming the partisanship of the rights group,^[10] civil society should not limit its contributions to the court’s work to factual submissions: expert opinions by way of Article 15 submissions, not only by sympathetic law professors, but especially by experienced ICC practitioners and defense counsel, could provide the OTP’s situation analysis team with crucial support when making the case to open certain investigations. Advocates reported that the Prosecutor herself has signaled the importance of such contributions.
 
To ensure political safe space for the court’s work, civil society should also seek the support of third party states and international actors – including by analyzing and activating the self-defined commitments of third parties to the Court’s role and recently also to accountability in the specific Israel/Palestine context.^[11] Indeed, the systematic nature of Israel’s violations of international law, including apparent international crimes, and their embeddedness in Israeli legal and administrative practice, have triggered ongoing revisions of EU-Israeli relations public and private.^[12] Those engaged in inter-state relations with Israel should be mindful of opportunities to urge and potentially leverage Israeli cooperation with the Court, with both Israel’s and the international community’s best interests in mind.
 
Civil society should carefully take stock of the EU’s positions on Israeli practices, domestic proceedings and the importance of accountability. Despite continuing to prioritise Israeli domestic proceedings, apparently in hope that Israeli authorities live up to their obligations under the principle of complementarity, the EU and its member states should be made aware of the unsustainable nature of this position given the unlikelihood of Israeli conduct fulfilling international standards, which comes at the expense of ensuring both EU’s and Israel’s respect for international law. Instead, civil society interventions should further and develop the EU’s specific, principled positions on the non-conformity of Israeli domestic proceedings with international standards, and the inadequacy of Israeli cooperation with the Court.
 
The EU and member states also have a relatively developed set of commitments (including financial) to the role of the court (especially amid ongoing conflict and persisting violations); despite maintaining a significant margin of appreciation in choosing the measures by which to pursue these commitments.^[13] Indeed, the EU’s own legal needs to uphold its public policy require it to protect the legal orders of its member states from the effects of Israeli unlawful acts – including those of transnational criminal acts on domestic law.^[14]
 
Cynics like former Prosecutor Moreno-Ocampo^[15] have sought to politicize the court’s role and characterize its procedures as insurmountable hurdles to the prosecution of Israelis for certain crimes. But to shield perpetrators of the most obvious cases of persisting international crimes (e.g. Israel’s unlawful appropriation of land and transfer of civilians into occupied territory, while forcibly transferring Palestinian communities) would be to do away with the Court’s very reason for being. Ultimately, the EU and its member states should be pushed to avoid the politicisation of the Court in the Israel/Palestine context, as in any other, so as to vigorously defend the Court’s professional standing, independence and integrity.
 
Since the need to protect the integrity of the Court’s function of rendering the basic service of justice to all peoples without discrimination is as great a need and value for Palestinians and their allies – who could certainly do more by way of dissemination and outreach to bolster the court’s professional role – as it is for the international community of states and international actors,^[16] a cautious, measured and rigorously professional approach by the Court and its proponents is needed to counter the vast political pressure and divisive argumentation that is and will continue to be associated with the Court’s work on the situation in Palestine.
 


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*  Dr. Valentina Azarova is a Research Fellow with the Institute of Law, Birzeit University, where she previously lectured on the MA in Democracy and Human Rights. She is also a policy adviser for al-Shabaka. She has advised local and international human rights groups on ways to support the ICC’s work, ensure political safe space, and activate the effects of Israeli unlawful acts on third state domestic legal orders.