FRI 29 - 3 - 2024
 
Date: Jan 20, 2015
Source: The Daily Star
Israel should welcome Palestine’s ICC entry
William Burke-White

When on Dec. 31, the Palestinian Authority took the unprecedented step of applying to join the International Criminal Court, Israel was quick to criticize the move as a provocation undermining any hope for peace. The truth is that it may be the Palestinian Authority, not Israel, that will come to regret the maneuver.

The Palestinian Authority asked to join the ICC for two reasons: to assert statehood (only states can be members of the ICC), and to use the court to investigate allegations of war crimes committed by Israeli forces in the West Bank and Gaza.

The trouble for the Palestinians is that ICC membership cuts both ways. The court has jurisdiction over war crimes, genocide and crimes against humanity that occurred on member states’ territory or that were committed by their citizens. By joining the court, the Palestinian Authority has not only made it possible to prosecute Israeli crimes in Palestine; it has also opened the door to prosecution of crimes by Palestinians against Israelis or other Palestinians.

The Israel armed forces have often complained that they are fighting an asymmetric war in which they tie their own hands by complying with international humanitarian law, while their opponents can ignore those laws and launch attacks against Israeli civilians. The Palestinian Authority’s decision to join the court may well level the playing field.

Israel actually has little to fear from the ICC. To date, the experience of the ICC and other similar tribunals suggests that prosecutors usually refrain from pressing charges when countries have taken all available steps to avoid the commission of international crimes. For example, the ICC declined to investigate alleged crimes by European governments in Iraq. Similarly, the International Criminal Tribunal for the former Yugoslavia has declined to prosecute suspected war crimes by NATO members in Bosnia and Kosovo.

Given the steps the Israeli military takes to avoid the commission of war crimes, it seems highly unlikely that, after a preliminary investigation, the ICC will ultimately bring a case against an Israeli soldier.

Even if a prosecutor were inclined to do so, the ICC’s jurisdiction is complementary to national jurisdictions: it can investigate only if a national government is unable or unwilling to do so. Israel has an excellent domestic legal system and a track record of investigating and prosecuting its own when they breach international humanitarian law. As long as Israel continues to exercise vigilant oversight and prosecute its soldiers when they break the law, it will be able to avoid action by the ICC.

The Palestinian Authority, on the other hand, has relatively little infrastructure to ensure that its forces comply with international humanitarian law. It has sometimes seemed willing to overlook or even sanction violations that target Israeli civilians. The decision to join the ICC will make it difficult to continue on this path.

Since the ICC was established in 2002, countries that join have enacted legislation incorporating international crimes into their domestic law, improved their compliance with international humanitarian law, and developed better mechanisms to prosecute violations when they occur. ICC membership encourages compliance precisely because, when members violate the law of war or fail to police their own militaries, they face the very real possibility of prosecution. The Palestinian Authority will thus face significant new pressure to behave accordingly – and the international community will gain a powerful new legal tool to ensure compliance.

Israel appears most agitated about the implications of ICC membership for Palestinian statehood. But it is worth recalling that attaining statehood is a gradual process, resulting from recognition by other states and international organizations. Palestine’s membership in the ICC is a significant step, but it is a small one when compared to the pressure the Palestinian Authority will face to improve its compliance with international law.

Palestine is expected to join the ICC on April 1. Instead of criticizing the move, Israel and the United States should laud the Palestinian Authority’s decision to subject itself to meaningful international supervision. The final result of the Palestinian Authority’s maneuver – even if unintended – may well be greater protections for Palestinian and Israeli civilians alike.

William Burke-White, a professor of law and director of the Perry World House at the University of Pennsylvania, was a member of the Policy Planning Staff at the U.S. State Department from 2009 to 2011. THE DAILY STAR publishes this commentary in collaboration with Project Syndicate © (www.project-syndicate.org).

A version of this article appeared in the print edition of The Daily Star on January 20, 2015, on page 7.


The views and opinions of authors expressed herein do not necessarily state or reflect those of the Arab Network for the Study of Democracy
 
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