The Palestinian membership in ICC may cause some political inconvenience to Israel and its patron State, the US. However, Israel too can make a reasonably convincing case that several of Palestinian rocket attacks were directed against Israeli civilians
After suffering loss at the UN Security Council (UNSC) in its efforts to pass a resolution on the settlement of Israel-Palestine dispute, the Palestine leadership has decided to accede to 18 international treaties — in addition to the 15 it has already acceded to earlier in April last year. This new list includes accession to the Rome Statute of the International Criminal Court, the NPT and the UN Convention on the law of the Sea.
It remains inexplicable, at least to this writer, why Palestine chose to force a vote in the UNSC at this particular time just before a newly-reconstituted UNSC was about to take its place. In the outgoing UNSC, only eight of the 15 members have recognised Palestine as a State. In the new UNSC, there would have been nine such members. Prima facie, it would have made sense to seek a vote in the new UNSC where it had recognition as a State from nine members, the minimum vote needed to pass a resolution in the absence of a veto.
While it was expected that in such a case, the US would have exercised its veto, in the current instance, the US was spared the political embarrassment of exercising its veto. It is true that in the outgoing UNSC, while two states that had recognised the Palestinian State, Nigeria and Rwanda chose to abstain, two others who had not yet recognised Palestine as a State — France and luxembourg — chose to vote for the resolution thereby getting the resolution only eight votes, insufficient for the need for US to cast its veto.
The newly-constituted UNSC has retained six of the present UNSC who had voted for the resolution and of the five newly-inducted members, there were three — Angola, Malaysia and Venezuela — who would certainly have voted for the resolution. It is difficult to imagine that the US would have been able to influence these states to vote against the resolution as it apparently had succeeded in persuading Nigeria and Rwanda. That would have necessitated the US to cast its veto. There is, however, no reason why the same resolution cannot be resubmitted for another vote in the coming UNSC sessions. Now along with the letters of accession to the International Criminal Court (ICC), Palestine has reportedly filed a request to The Hague to investigate Israeli war crimes during the 50-day war in Gaza last summer. Palestine had earlier sought to join the ICC in 2009.
The Office of the ICC Prosecutor had then carefully considered all of the legal arguments put forth and concluded in April 2012, after three years of thorough analysis, it could not sign up to the Rome Statute. On November 29, 2012, however, Palestine’s status was upgraded by the UN General Assembly (UNGA) to “non-member observer State” status and the Office, after examining the legal implications of this development for its purposes, had concluded that Palestine could now join the Rome Statute.
Earlier in September 2014, the Office of the ICC Prosecutor had released a Press statement wherein it had reiterated: “Whether States or the UN Security Council choose to confer jurisdiction on the ICC is a decision that is wholly independent of the Court. Once made, however, the legal rules that apply are clear and decidedly not political under any circumstance or situation. In both practice and words, I have made it clear in no uncertain terms that the Office of the Prosecutor of the ICC will execute its mandate, without fear or favour, wherever jurisdiction is established and will vigorously pursue those - irrespective of status or affiliation - who commit mass crimes that shock the conscience of humanity. The Office’s approach to Palestine will be no different if the Court’s jurisdiction is ever triggered over the situation.” Palestine’s entry as a formal member of ICC will come 60 days after the submission of its accession documents.
Palestine’s admission to ICC and its formal charge against Israel is not without some serious obstacles even though the US will not be able to make any objections to the ICC, as it is not a signatory to the Rome Statute, as it did earlier last year when with reference to the international treaties and conventions to which Palestine had acceded it made objections stating: “The Government of the United States of America does not believe the ‘State of Palestine’ qualifies as a sovereign State and does not recognise it as such. Accession to the Convention is limited to sovereign states. Therefore, the Government of the United States of America believes that the ‘State of Palestine’ is not qualified to accede to the Convention and affirms that it will not consider itself to be in a treaty relationship with the ‘State of Palestine’ under the Convention.”
In respect of ICC, it can only be a helpless spectator when Palestine is formally admitted as a member State. However, Palestine will face a number of problems in its pursuit of a war crimes case against Israel at ICC. For one, Israel is not a member of ICC. Therefore, ICC is barred from trying Israeli citizens for war crimes. There is, however, a window of opportunity. ICC can try Israeli citizens for war crimes if they also happen to hold the citizenship of a country, which is a member of ICC. Since many Israeli citizens hold dual citizenship, there may perhaps be an opportunity to bring a case against some Israelis.
Two, even if a charge can be brought, it may prove to be difficult to establish that either the damage that was caused to some civilian property or civilian casualties wasn’t collateral damage caused as a consequence against some military target. Given the nature of the recent conflict where there was very little to distinguish between civilian and military targets in Gaza, Israel may not find it impossible to establish, if so needed, to prove that most, if not all, the damage and casualty was the result of a legal military action against military targets.
The judgement in Gotovina Appeal case before International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian law Committed in the Territory of the Former Yugoslavia would point to the difficulties in proving the case when hostilities were in an urban situation. Thirdly, given the wide coverage given to the Israeli warnings to the Gaza civilian population about the location of its aerial bombing targets, it can legitimately claim that ample opportunity was given to the civilian population to protect itself.
Finally, it has been reported that legal experts from the Adjutant General’s branch were consulted in a substantial measure before aerial bombings were done. There is the counter case that can be made against the Palestinian rocket attacks against Israel. While Israel can make a reasonably convincing case that most of its targets were of military significance, the Palestinians would have difficulty in establishing that its rocket attacks were directed against specific military targets and not directed randomly against Israeli civilian population. All in all, while the Palestinian membership in ICC would cause some political inconvenience to Israel and its patron State, the US, it is unlikely to result in any cases — let alone convictions.
(The writer is a Consulting Fellow, IDSA, New Delhi)