Turtle Bay

Will the Palestinians go to the International Criminal Court?

Will the Palestinians go to the International Criminal Court?

Today’s U.N. General Assembly vote elevating Palestine to a "non-member observer state" will do little to confer Palestinians the trappings of a truly independent state.

But what it will do is provide the Palestinians with a ticket to the International Criminal Court (ICC), where membership is available to all states, not just full-fledged members of the United Nations. It will also provide the Palestinians with a new lever to pressure Israel from continuing its expansion of Israeli settlements.

The prospects of Palestinian membership in the ICC, which could place Palestinian territories under the court’s jurisdiction for the first time, has alarmed Israel and the United States, who fear it may lead to the prosecution of Israeli soldiers.

It has also rattled Europeans, who support the ICC but fret that Palestinian membership in the tribunal would complicate efforts to restart peace talks.

President Barack Obama has leaned heavily on Palestinian President Mahmoud Abbas to put off his U.N. statehood bid. In a sign of the importance, U.S. Deputy Secretary of State William Burns promised Wednesday that if Abbas backed away, Obama would re-engage as a mediator in 2013, the Associated Press reported.

"This resolution is not going to take them closer to statehood," Victoria Nuland told reporters on Wednesday. "It does nothing to get them closer to statehood, and it may actually make the environment more difficult."

Britain has led diplomatic efforts to persuade Abbas to offer assurances that he will not join the Hague-based court until the Middle East Peace Process is concluded. Britain has also pressed Abbas to agree to resume negotiations with Israel after today’s vote without preconditions."

The Palestinians’ U.N. envoy Riyad Mansour, told reporters this week that his government had no intention of immediately joining the ICC but that it intended to keep the option on the table. He also hinted that the Palestinians would consider going to the court if Israel continues its settlement policy.

"I don’t believe that we are going to be rushing the second day to join everything related to the United Nations, including the ICC," he told reporters this week. "But, at the same time, it is not fair for us to tie our own hands [against] all the possibilities that could be available to us." Characterizing Israeli’s settlement policy as war crime, Mansour raised the possibility of going to the court if Israel continues to expand settlements.

There is a provision in the Rome Statue, the treaty establishing the international tribunal, that could apply to Israel’s settlement policy. It defines, as a war crime, the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory."

Christian Wenewaser, Liechtenstein’s U.N. ambassador and the former president of the ICC’s assembly of states parties, said that the Palestinians cannot dictate which specific crimes the ICC’s prosecutor might choose to examine, and that it could only invite the prosecutor to investigate a general situation where large-scale crimes have been committed.

That, he noted, raises the prospects that the prosecutor could turn her sights on Palestinian extremists who have been firing rockets into Israel. Wenewaser said he believes that the Palestinians will not immediately approach the court. "I think they will let this sit for a while," said "They will just use the threat of resubmitting [a claim] as leverage to stop the settlement policy."

In January 2009, the Palestinians appealed to the Hague-based criminal court to open an investigation into Israeli conduct during a three-week operation in the Gaza Strip that began in December 2008. Earlier this year, the court’s then-prosecutor, Luis Moreno-Ocampo, said he lacked the authority to rule on the decision.

Today’s votes leave the Palestinians two main options: they can either resubmit their request to the new prosecutor, Fatou Bensouda, as a U.N.-recognized observer state, potentially providing the court with jurisdiction on past crimes. They can also become a member of the International Criminal Court, and pursue a prosecution there.

Jim Goldston, the executive director of Justice Initiative at the Open Society Foundations, said that there are a number legal hurdles that must be crossed before the court could decide whether to take on an investigation in Israel. For one, it remains unclear how the prosecutor could determine the territory under which it can exercise jurisdiction.

It also remains unclear whether the prosecutor will have jurisdiction over alleged crimes dating back to 2002, when the ICC treaty came into force, or only those committed after Palestine becomes a member of the court. Also, the International Criminal Court’s treaty grants preference to national prosecutors to carry out prosecutions, if they can demonstrate the have the means and will to do it. Israel would likely to argue that its court’s are capable and willing to conduct credible investigations into alleged war crimes in Palestinian lands.

Meanwhile, Goldston said that placing Israel within the court’s possible jurisdiction would help address complaints, particularly within Africa, that the court only pursues war criminals that lack powerful patrons."The ICC has been plagued by question of selectivity and alleged double standard, the idea that certain states are subject to the law, and others have political protection, and are not subject to the law. This would open up the possibility of more equitable administration of justice. I think this would be a positive thing."

But that could come at the cost of the ICC’s improving relationship with the United States.

Follow me on Twitter @columlynch