Chance for justice: Palestine's road to International Criminal Court

  • Viju Cherian, Hindustan Times
  • Updated: Apr 01, 2015 18:28 IST

On April 1, Palestine formally joins the International Criminal Court (ICC). What makes this event important is the implications it will have on Israel and the Israel-Palestine conflict.

The ICC is an inter-governmental organisation that has the authority to investigate international crimes such as genocide, war crimes and other crimes against humanity, provided the state has accepted ICC's jurisdiction. The ICC does not oppose existing judicial systems in member countries but intervenes when it is clear that justice is denied or when a nation approaches the court.

Palestine's road to the ICC

In September last year, after there was growing criticism that the ICC was ignoring Israel's attacks on Gaza due to political pressure, ICC prosecutor Fatou Bensouda stated that the court was unable to look into alleged war crimes in Gaza because of its lack of jurisdiction. "As prosecutor, I can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC [Rome] Statute..." Bensouda clarified in a statement released by the ICC.

Following this, on January 1, Palestine accepted the ICC jurisdiction over it since June 13, 2014 and signed the Rome Statute the following day. A fortnight later, Bensouda's office opened preliminary investigation into the situation in Palestine. Interestingly, Israel is not a member of the ICC.

War crime investigations

The Palestine Liberation Organisation's (PLO's) chief negotiator at The Hague, Saeb Erekat, confirmed on Monday to a news agency that the ICC has opened initial investigation into Israeli settlements in Palestinian territory and alleged war crimes committed by Israel in its offensive on Gaza last summer, called 'Operation Protective Edge'.

Following Palestine's move at the ICC in January, Israel had stopped its monthly transfer of $130 mn in tax revenues. The elections in Israel last month further deteriorated the atmosphere when Prime Minister Benjamin Netanyahu ruled out his support for a separate Palestine state. (Some recent reports suggested that Netanyahu has agreed to consider a separate state but it could not be verified).

Reports earlier this week suggested that Israel had agreed to release the funds on the condition that the Palestinian Authority (PA) will not take legal steps at the ICC regarding the construction of settlements.

A Palestinian demonstrator takes a break during clashes with Israeli soldiers during a protest in the West Bank village of Nabi Saleh near Ramallah. The Palestinians formally join the International Criminal Court on Wednesday, as part of a broader effort to put international pressure on Israel and exact a higher price for its occupation of lands sought for a Palestinian state. (AP Photo)

Pros and downsides to Palestine's move

The reactions to Palestine approaching the ICC are mixed. "The Palestine Authority after long deliberation has come to the conclusion that this is one way of putting pressure on Israel to be more forthcoming on the talks for the Palestinian State. All the previous peace efforts have proved futile," says Aftab Kamal Pasha, professor at the Centre for West Asian Studies, Jawaharlal Nehru University, Delhi.

While some experts see it as a move that might put pressure on Israel to come clean on its activities on 'occupied territories' and give more freedom to Palestinians, others are not so hopeful. They see it as yet another publicity stunt by the Palestinians to "mislead" the world and "derail" the peace process. According to Assaf Moran, counsellor at the political division of the Israel embassy in New Delhi, "it is a pity that instead of returning to the negotiations table the Palestinians have once again chosen to appeal to the international bodies where they benefit from an automatic majority.... Taking into consideration the Israel-Palestine conflict, this development is a negative component. This will not promote a peaceful solution. It won't help bring peace in any way."

In the end, the outcome of this membership depends on how Palestine uses it - either to its benefit or to further strengthens the Right-wing in Israel. "Palestine becoming a member of the ICC could be a positive development but it depends on how they use it. I hope they use it as a platform to demonstrate responsibility rather than a theatre for confrontation because that will be playing into the siege mentality of the Right-wing in Israel. And that would make [Prime Minister Benjamin] Netanyahu more powerful politically and hence more stubborn," says Abhijit Iyer-Mitra, programme coordinator, Centre for Strategic Studies, Observer Research Foundation, New Delhi.

How should India react?

India is not a member of the ICC and has opposed the court on many counts, including how the principle of complementarity will not align with our judicial system. India has traditionally backed the legitimate demands of the Palestinians, and though lately New Delhi has strengthened ties with Tel Aviv, it has not reconstituted its stand vis-a-vis Palestine. This development is unlikely to change the policy the BJP-led Centre has adopted in its ties with Israel.

"India has been drifting so far away from Palestine and so close to the Israelis and this affords yet another opportunity for course correction. I, however, doubt that under the Modi government...," said Mani Shankar Aiyar, a former Union minister and keen observer of the region.

It is unlikely that Palestine's membership is going to bring peace to the region overnight. But for now it is a victory for Palestine and it moves one step closer towards realising its aspirations of full statehood.

(The views expressed are personal. Tweet to the writer at @vijucherian.)

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