ICC membership may hurt Palestinians, Hamas more than Israel

Mahmoud Abbas’s successful bid to get Palestine non-member observer status at the United Nations takes Palestinians one step closer to becoming eligible to join the International Criminal Court in The Hague, which is empowered to investigate the worst international crimes. Although critics of Israel have long hoped to see Israeli leaders prosecuted by the Court, Israel has never ratified the ICC treaty, and the Palestinian territories, as a non-state, have thus far been unable to ratify, leaving their conflict off-limits.

The chance that Palestinians’ new UN recognition may change this has revived Israeli fears of one-sided prosecutions at the ICC. In light of those concerns, some western leaders have reportedly asked Palestinian officials to refrain from joining the court. In reality, however, ICC membership may prove more complicated for the Palestinians, forcing them, too, to take responsibility for their conduct. If anything, prosecutions of future Hamas crimes might proceed more easily than similar prosecutions of Israeli crimes.

Palestinian officials have long asked the court to initiate prosecutions for crimes committed by Israeli forces in Gaza during Israel’s 2008-2009 Operation Cast Lead; the most recent hostilities in Gaza may renew such calls. Until now, however, the court’s prosecutor has declined to act because only states may ratify the ICC statute. If the ICC does gain jurisdiction over a newly recognized Palestinian state, the court would be able to look at crimes committed on Palestinian territory.

Because of the jurisdictional complications of the Palestinian situation, past actions, such as crimes committed by either side during Operation Cast Lead and the most recent violence in Gaza, most likely would not be prosecuted. But Israel may indeed find itself the focus of scrutiny for possible future crimes. 

Yet the ICC is not the Nuremberg Tribunal, which convicted Germans but failed to consider Allied crimes. As much as some world leaders might prefer otherwise, ICC jurisdiction is not limited to one side in a conflict. When Uganda referred its own conflict to the ICC in 2004, its motivation was no doubt prosecution of leaders of the rebel Lord’s Resistance Army, but once the court took jurisdiction, the prosecutor was also able to investigate possible crimes by government forces. In other words, Hamas cannot expect a free pass in the future for indiscriminate shelling of Israeli civilians or use of Palestinian non-combatants as human shields.

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.

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.