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ICC membership may hurt Palestinians, Hamas more than Israel (+video)

Mahmoud Abbas’s successful bid for Palestine at the UN takes Palestinians one step closer to joining the International Criminal Court, where some hope to prosecute Israel. But ICC membership may force Palestinians to take responsibility for their own conduct as well.

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In fact, ICC status may give the advantage to Israel on future prosecutions, while putting Hamas at a likely disadvantage. Because the ICC is considered a court of last resort that defers to national courts, it will not take on cases that states have made good-faith efforts to investigate or prosecute. Israel has already conducted investigations and undertaken some disciplinary actions regarding its forces’ behavior in Gaza; fear of ICC involvement might even encourage Israel to do more. Hamas, by contrast, has made no such efforts to deal with war crime allegations.

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ICC membership also brings with it obligations that may not be easy for Palestinians to fulfill. ICC members pledge to cooperate with the court, which includes complying with arrest warrants and assisting in investigations. A new Palestinian state might be called upon to provide evidence against, and even surrender, some Palestinian nationals, like Hamas leaders. As members of an international community interested in justice, all states should respect ICC warrants as a matter of principle, but Israel – which originally signed onto the ICC, but then sought to withdraw its signature – has no such legal obligation. If a new Palestinian state joins the court, it will be taking on legal duties that Israel does not share.

Prosecution of those guilty of war crimes and crimes against humanity – by all sides in a conflict – is an extremely important goal, and one for which human rights advocates have long fought. The ICC, which now has 121 member states, provides a fair and public venue for holding accountable those implicated in genocide, war crimes, and crimes against humanity when they would otherwise escape responsibility.

But as Palestinian officials celebrate their successful UN bid and consider ICC membership, they should understand that justice is not a one-way street. They, too, may one day find themselves in the court’s dock.

Jennifer Trahan is associate clinical professor at the Center for Global Affairs at the NYU School of Continuing and Professional Studies (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force. Belinda Cooper is a senior fellow at the World Policy Institute. She is also an adjunct professor at the NYU-SCPS Center for Global Affairs and at Columbia University’s Institute for the Study of Human Rights.


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