Why the Palestinian Authority may never take Israel to court
The Palestinian Authority has finally applied to join the International Criminal Court, after months of threatening to do so. But will the PA use the court to hold Israel to account for potential war crimes?
Palestinian membership in the court will mean that the ICC prosecutor can investigate and prosecute crimes committed by Israelis (and Palestinians) in the West Bank and Gaza. The court’s remit will cover crimes committed during military operations – for example the alleged targeting of civilians in Gaza – as well as in apparently ‘peaceful’ contexts, notably Israeli settlement construction in the West Bank. In addition the PA submitted a declaration to the ICC on Jan 1, accepting the Court’s jurisdiction back to June 13, so that the court is able to investigate last summer’s fighting in Gaza.
However, the chances of a trial ever going ahead are uncertain.
For a start, the ICC has a large caseload and is under-resourced. Judging from past investigations, it could take a long time before a case even gets off the ground.
The previous ICC prosecutor, for instance, took three years to examine and eventually reject an application the PA made in 2009 for an investigation into the 2008-09 Gaza war, on the grounds that it was unclear whether Palestine was a state (Palestinian statehood was only recognized by the UN in 2012).
There are also myriad legal issues that would need to be resolved. To pick one example, the ICC cannot try cases that the Israeli justice system is genuinely investigating or prosecuting. Human rights groups have long accused Israel of merely appearing to investigate criminal allegations against its military, when in reality they say that senior officials most culpable for crimes are shielded from prosecution.
According to Israeli human rights organizations, Btselem and Yesh Din for instance, the Israeli system is “incapable of investigating policy issues or breaches of law by senior ranking military.” Israel does sometimes investigate the conduct of low-ranking soldiers, occasionally leading to convictions for minor offenses (in the three cases that were prosecuted followed Operation Cast Lead, the harshest sentence was given to a soldier who stole a credit card from a Palestinian).
In that case, the court might have to conduct a lengthy inquiry into the status of Israeli investigations into war crimes before a case could proceed. And even if the ICC reached the stage of issuing indictments against Israeli leaders, it would still have no way of securing the presence of those persons at trial.
But probably the most formidable obstacle will be the political pressure by Israel and its Western allies to prevent the PA from taking Israel to the ICC. Israel, the United States and the EU have all threatened the PA with the withdrawal of financial aid if it were to join the court. Most recently, the EU reportedly said that a donor conference to provide aid for rebuilding Gaza after Israel’s summer assault would be threatened if the PA went ahead.
Now that the latter has applied for ICC membership, Israel has intensified its pressure by deciding to withhold the transfer of Palestinian tax revenue it collects on behalf of the PA, totaling some $127 million last month. The PA is especially vulnerable to this sort of pressure given its dependence on cooperation with Israel and on financial support from the West. Indeed, chief Palestinian negotiator Saeb Erekat, in an interview to the Israeli news outlet YNET, warned over the weekend that Israel’s withholding of tax revenue could force the PA to be dissolved.
There are other reasons to believe that the PA won’t be bringing cases before the court any time soon. The PA delayed joining the ICC for almost two years from November 2012, when ICC membership become open to Palestine after it achieved “upgraded” UN status, until the end of 2014. During that period, the PA used the threat of membership as a bargaining chip in negotiations with Israel. There is no guarantee the PA will not use essentially the same strategy to advance its political objectives, if it becomes a member– the new threat being that it will initiate a case against Israel at the ICC if Israel does not comply with Palestinian demands.
But there are other avenues for starting an ICC case that do not depend on PA action: other ICC members can refer crimes to the prosecutor, who can also open an investigation on her own initiative. These mechanisms are not immune from outside political interference but circumvent the pressure the PA will come under not to pursue a case.
Furthermore, given that most Palestinians in the West Bank and Gaza want to see Israel taken to the ICC, it would be politically untenable for the PA not to support a case initiated through one of these alternative mechanisms. The PA’s decision to join the ICC might therefore — however inadvertently — have put it on the path towards taking greater unilateral action against Israel.
Whether the PA has the political will to stay the course is an open question.