The Case Against the Prosecution

Amid the clamor for accountability for the crimes in a conflict that has left more than 1,900 Palestinians and 67 Israelis dead, one man holds the key to launching an international prosecution of suspected war crimes: Palestinian President Mahmoud Abbas.

For nearly two years, the Palestinian government — which the U.N. General Assembly recognized as a U.N. observer state in November 2012 — has possessed the power to join the International Criminal Court. It hasn’t used it, even though it would expose Israeli troops for the first time to potential prosecution before the Netherlands-based world court.

Palestinian officials have so far declined membership on the grounds that they could face retaliation from Israel and the United States, where the U.S. Congress has threatened to cut off funds to the Palestinian government. The Palestinians are also under pressure from other Western powers, including Britain, Canada, France, and Italy, to demure for now so as to not undercut prospects for peace with Israel.

The collapse of the U.S.-brokered peace process revived interest in Ramallah in joining the ICC. Palestinian Foreign Minister Riad al-Malki traveled to The Hague to explore the option. After meeting with ICC officials Tuesday, Malki said there is "clear evidence of war crimes committed by Israel." In May, a coalition of 17 human rights groups, including Amnesty International and Human Rights Watch, implored Abbas to join the ICC as a deterrent against future rights violations.

But opposition to membership has emerged among the Palestinians’ frontline fighters.

Last week, Abbas convened a meeting of Palestinian factions to ask for their written consent to join the ICC, according to human rights advocates tracking the talks. Most, including members of Fatah, the political movement founded by Yasser Arafat, as well as the Palestinian Liberation Organization, support a bid for membership. The Palestinians’ U.N.-based representative, Riyad Mansour, assured delegations last week that his government is "very close" to a decision, according to a senior diplomat briefed by the Palestinians.

But Gaza’s most powerful militant groups, Hamas and Islamic Jihad, are opposed and Abbas is reluctant to join without their support. The armed factions have fired thousands of rockets from densely populated urban areas at Israel in flagrant violation of international law, a military strategy that would likely expose them to investigation, and possible prosecution, by the ICC. In the absence of a formal Palestinian request to join the court, the ICC prosecutor, Fatou Bensouda, made clear Tuesday that she has no authority to investigate crimes in Gaza.

"This is really in the hands of the Palestinian leadership: They could seek jurisdiction tomorrow if they wanted to," said Human Rights Watch’s Balkees Jarrah, an expert on the court. "The question is whether Abbas will stand up to pressure from the U.S., Israel, and other Palestinian factions and finally send a sorely needed message that serious crimes carry consequences."

U.S. and U.N. officials have sharpened their criticism of Israel, condemning the shelling of U.N.-run shelters in Gaza in uncommonly strong terms, and demanding that those responsible for civilian deaths be held accountable.

Sunday’s missile strike near a U.N. school in Rafah that killed at least 10 civilians is "a moral outrage and a criminal act," U.N. Secretary-General Ban Ki-moon said. U.S. Ambassador to the U.N. Samantha Power said it was "horrifying" and called on Israel to "conduct a full and prompt investigation of this incident as well as the recent strikes that hit other UNRWA schools."

Israel and the Palestinians have not held their own fully accountable for excesses in previous conflicts, including Operation Cast Lead in 2008 to 2009 and the more limited Operation Pillar of Defense in 2012, according to U.N. officials and human rights advocates.

Only four Israeli soldiers were prosecuted following Operation Cast Lead, according to U.N. and human rights groups. "One of the convictions was for stealing a credit card. And the other three soldiers, convicted of more serious crimes, received extraordinarily light sentences," Navi Pillay, the U.N. high commissioner for human rights, said last month. She continued: "In April 2013, the Military Advocate General issued a public document indicating that it found no basis for opening criminal investigations into approximately 65 incidents involving the Israel Defense Force[s] during the 2012 operation known as ‘Pillar of Defense.’ With respect to rocket and mortar attacks from Gaza, information available also indicates that no adequate measures have been taken to carry out effective investigations into alleged violations."

In a later statement calling for an International Criminal Court investigation, Pillay said, "Accountability and justice is unlikely to be achieved through domestic proceedings."

The International Criminal Court was established by the Rome Statute in 2002 to prosecute the world’s worst violators of human rights.

The court’s authority only extends to citizens of countries that have signed the treaty or cases where the U.N. Security Council votes to authorize an investigation. Israel, which is not a signatory and can count on the United States to block a Security Council referral, has largely operated beyond the court’s jurisdiction.

"The ICC is a whole different kettle of fish," said Stanford University’s Allen Weiner, an international law expert. "The Palestinian authorities have not yet applied or sought to ratify the Rome Statute as a state party. If they do that, then the chance of unleashing the investigative powers of the ICC is quite likely."

Member states have first crack at prosecuting cases under the court’s bylaws. Before the ICC would consider a Gaza-related case, the ICC’s chief prosecutor, Bensouda, would have to establish that Israel and the Palestinian Authority are unwilling or unable to pursue their own good-faith investigation.

Israel takes great pride in its justice system and insists that it pursues military excesses with a degree of vigor unknown in the Middle East. "We had senior officers who were held accountable for decisions made in the field" during Operation Cast Lead, Israel Defense Forces spokesman Lt. Col. Peter Lerner told Foreign Policy.

A U.N. committee of independent experts, headed by Mary McGowan Davis, a former New York judge, concluded that following Cast Lead, "Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza." Hamas, she added, did not conduct "any investigation into the launching of rocket and mortar attacks against Israel."

Israel has little trust in international investigations, particularly those carried out by the U.N. Human Rights Council, which it views as deeply biased against Israel. A U.N. fact-finding mission into Cast Lead headed by a South African jurist, Richard Goldstone, concluded that Israel targeted civilians, a claim he later had to repudiate.

For his part, Ban showed little interest in subjecting Israel’s soldiers to international scrutiny and distanced himself from Goldstone’s investigation. At U.S. urging, he also blocked a proposal by Ian Martin, head of a U.N. board of inquiry into nine incidents involving Israeli strikes on U.N. facilities, to set up a wide-ranging investigation into possible war crimes by Israel, Hamas, and other Palestinian militants.

The statement killing the investigation was drafted with the help of Israeli officials in New York.

Ban’s position has since hardened as thousands of Palestinians seeking refuge in U.N.-run shelters have come under Israeli fire.

The U.N. Relief and Works Agency for Palestine Refugees (UNRWA) maintains that 95 U.N. installations have been damaged since fighting began on July 8 and it has documented seven cases in which U.N. shelters were directly hit. The deadliest cases so far are a July 24 strike at a U.N. school in Beit Hanoun; the July 30 attack on the Jabalia Elementary Girls’ School; and Sunday’s Israeli missile strike near the UNRWA’s Boys Prep School in Rafah.

Speaking of the latest attack, Ban said: "This attack, along with other breaches of international law, must be swiftly investigated and those responsible held accountable…. This madness must stop."

Ban did not specifically call out Israel for the Rafah attack but U.N. officials in the region did. Ban did finger Israel for shelling the Jabalia elementary school, where some 3,000 displaced Palestinians sought refuge.

The United States has talked uncharacteristically tough about Israel’s culpability. On Sunday, State Department spokeswoman Jen Psaki said the United States was "appalled by today’s disgraceful shelling."

The IDF’s Lerner said it will thoroughly investigate the latest U.N. claims. He also said the IDF hasn’t determined the source of fire in the attack on Jabalia, though Hamas has "tried to pin to Israel tragedies that have happened in the Gaza Strip" as a result of misfired Palestinian rockets.

An "errant" Israeli mortar struck a school in Beit Hanoun during the course of battle "with terrorists operating in the area," Lerner acknowledged. But the overhead visual surveillance showed no civilians in the courtyard at the moment Israel shelled the compound. It is "unlikely" that the "damages and casualties reported happened within the school compound."

The IDF is examining reports of what happened in Sunday’s Rafah attack as well. Lerner said that Israeli aircraft fired at a "group of terrorists" on a motorbike near the school. "We intercepted those terrorists" and are investigating reports of "extensive civilian fatalities."  

"The IDF is going to investigate all of these incidents," he told Foreign Policy. "We will investigate each and every one."