|Palestinians in their tents circa 1930|
Israel should join the ICC to give the Palestinians a taste of their own medicine
The International Court of Justice (ICC) announced this week the admission of Palestine as an observer state –a status that does not amount to membership. The representative of the Palestine Liberation Organization (PLO) in New York, Riyad Mansour, reacted to this symbolic move by declaring that the next step would be to become a member state. Mansour was thus contradicting his colleague Ibrahim Khraishi, the PLO representative at the United Nations Human Rights Council (UNHRC) in Geneva. On July 9, 2014, Khraishi declared on Palestinian television that, were the “State of Palestine” to join the ICC, it would expose itself to war crime probes.
Referring to the war raging at the time between Israel and Hamas in Gaza, Khraishi declared that “the missiles that are now being launched against Israel, each and every missile constitutes a crime against humanity, whether it hits or misses, because it is directed at civilian targets … Many of our people in Gaza appeared on TV and said that the Israelis warned them to evacuate their homes before the bombardment. In such a case, if someone is killed, the law considers it a mistake rather than an intentional killing because [the Israelis] followed the legal procedures … Therefore, people should know more before they talk emotionally about appealing to the ICC.” What Khraishi was explaining is that Hamas (which rules the Gaza Strip and which is part of the PA government) is guilty of war crimes and, therefore, that the “State of Palestine” would expose itself to war crime probes by formally joining the ICC.
Even the former prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has warned the Palestinians that joining the ICC could backfire because Hamas terrorists would be investigated for rocket fire and suicide bombings against Israeli civilians. In fact, Palestinian terrorist activities can already be prosecuted. This is because many Palestinians engaged in terrorism hold Jordanian citizenship and Jordan is an ICC member. The list includes Hamas leader Khaled Mashal and PA Chairman Mahmoud Abbas himself (in November 2014, the Israeli NGO Shurat Hadin asked the ICC prosecutor to open an investigation into alleged war crimes committed by Abbas, based on his Jordanian citizenship).
Were the virtual State of Palestine to become an ICC member, Israel could (and should, in my opinion) join the ICC as well to give the Palestinians a taste of their own medicine. It is doubtful whether, in such a scenario, the ICC would want to be used as a propaganda tool by both sides. But if the ICC were to endorse the Palestinian claim that Israeli settlements constitute a war crime and that the Court should have retroactive jurisdiction to prosecute them, then Israel could embarrass countries that support the Palestinians by forcing an investigation of Turkish settlements in Cyprus or of Moroccan settlements in Western Sahara.
There are also legal precedents that would make it hard, if not impossible, for the Palestinians to involve the ICC in their “lawfare” (legal warfare) against Israel. In May 2013, the Office of the Prosecutor (OTP) of the ICC rejected an attempt by former Egyptian President Mohammed Morsi to evoke the court’s jurisdiction over his country because, the OTP explained, Morsi had no “effective control” of Egypt. Factually, Abbas has no “effective control” over Gaza. Legally, he does not have “effective control” over the West Bank, either, since both he and the UN define Israel as an occupying power in the West Bank, and since effective control belongs to the occupying power.
There never was a State of Palestine in the past and Israel did not invade such a state in June 1967. Israel crossed a temporary ceasefire line and took control of a disputed territory that had been under Jordanian rule (not sovereignty) between 1949 and 1967. What the Palestinians are trying to do is to involve the ICC in a border dispute. But the ICC was established to determine the guilt of individuals, not the borders of nations (border disputes are to be referred to the International Court of Justice). The UN General Assembly decision from November 2012 to grant Palestine the status of non-member observer defined the question of borders as an “outstanding issue.” The UN itself does not define the former armistice line between Israel and Jordan as the border of the putative Palestinian state. Even William Schabas, the Canadian human rights expert who heads the UN investigation into Israel's role in the 2014 Israel–Gaza conflict, takes the Golan Heights, but not the West Bank, as an example of territory that would fall within ICC jurisdiction were Israel to ratify the ICC treaty. This is because, as opposed to the West Bank, the Golan Heights used to be part of a recognized sovereign country (Syria).
To quote Ibrahim Khraishi again: “People should know more before they talk emotionally about appealing to the ICC.” His government would be well advised to listen.
Emmanuel Navon chairs the Political Science and Communication Department at the Jerusalem Orthodox College and teaches International Relations at Tel-Aviv University and the Herzliya Interdisciplinary Center. He is a Senior Fellow at the Kohelet Policy Forum.