On January 2, in a long-awaited move, the Palestinian Authority formally submitted its application to the UN secretary general to join the International Criminal Court. Membership in the ICC is an important step, as the Court will now be able to investigate and prosecute serious war crimes committed by Israelis (as well as Palestinians) on Palestinian territory.
The move was also unexpected, in view of the fact that until now, the PA’s policy has been to use the threat of membership as leverage in negotiations with Israel. The PA did this several times over the past two years in an attempt to get Israel to stop settlement construction. Even after the PA finally announced last July that it would sign the Rome Statute (the treaty that established the ICC), it waited until the end of the year before formally submitting the application. During that period it used the threat of membership to try to extract Israeli concessions, first during Gaza cease-fire negotiations in the summer, and then in the hope that it would persuade the UN Security Council to support a resolution specifying a deadline for the end of the Israeli occupation.
The defeat of that resolution on December 30 was the last straw. The PA was particularly angry at US tactics used to thwart it—Washington reportedly managed to persuade Nigeria half an hour before the vote to withdraw the support it had promised. At a deeper level, though, the PA’s move was the result of years of pressure from the Palestinian public to hold Israel accountable for its crimes, especially after its brutal summer assault on Gaza. There was strong pressure on PA President Mahmoud Abbas in particular, including from members of his inner circle, such as chief negotiator Saeb Erekat.
Joining the ICC is undoubtedly a positive development in the Palestinian pursuit of legal accountability for Israeli crimes. The ICC prosecutor will be able to open investigations despite the fact that Israel is not a member of the Court. The Court’s jurisdiction will cover any crimes committed just over sixty days after the date of Palestine’s accession to the Rome Statute, as well as past crimes going back at least to June 13, 2014, since the PA also submitted to the ICC on January 1 a declaration accepting the Court’s jurisdiction from that date onward.
Nor would an ICC investigation necessarily be limited to crimes committed in a narrowly military context, such as during the recent attack on Gaza. It could also cover crimes that occur during Israel’s occupation of Palestinian territory, such as the construction of settlements, and could even call into question the overarching nature—and therefore the legality—of Israel’s occupation regime.
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But none of this is as straightforward as it seems. To start with, there are several legal obstacles to a successful prosecution. Still to be resolved is the thorny question of when the ICC’s jurisdiction over Palestine begins—in 2002, when the Rome Statute first came into force, or only after 2012, when the UN upgraded Palestine’s status? Another difficulty is that the ICC is only allowed to prosecute crimes of “sufficient gravity.” It is unclear at what point crimes that occur gradually, such as settlement construction, reach a sufficient level of “gravity” to merit prosecution. Other issues, like Palestine’s undefined borders and the fact that the Oslo Accords do not allow the PA to exercise criminal jurisdiction over Israelis, might also have to be resolved.