Media Mention of Hussein Ibish in The Daily Beast - March 28, 2013 - 12:00am

There's a great deal of talk going these days attributed to unnamed senior Palestinian official sources, and many others, about Palestine seeking redress at the International Criminal Court at The Hague if peace talks with Israel remain stalled. This is usually presented, and received by the public, as if it were a straightforward option, akin to the Palestinian decision to request nonmember observer state status from the U.N. General Assembly or joining other multinational bodies.

But the legal and political reality is far more complex, and a series of difficult, time-consuming and, in some cases dubious, contingencies would have to be realized before any charges against Israeli officials could plausibly be launched by ICC prosecutors.

The biggest technical difficulty with asking ICC prosecutors to consider charges against Israeli officials or citizens for actions in the occupied Palestinian territories is the question of standing under the Statute of Rome, which guides the ICC's work. Israel is not a signatory to the Statute, meaning that Israeli officials could not be prosecuted for their actions on the grounds of their citizenship, or for any acts committed inside territories in which Israel is considered the legal sovereign. Internationally, that would definitely not include the occupied Palestinian territories, however.

But, as Palestinians discovered when they urged the ICC to open an investigation into the 2008-2009 Israeli offensive in Gaza, the court would not consider the matter because it could not establish a viable sovereign entity that could authorize it to investigate actions in Gaza or other areas of the occupied territories. As far back as 2002, the Palestinian Authority tried to get the ICC to investigate Israel's actions in the occupied territories, to no avail.

Time and again, the ICC found that because Israel is not a signatory, and Palestine was not a legal sovereign, the Court had no jurisdiction in the occupied territories. The only way around this would be a U.N. Security Council authorization of an investigation (as in the case of another non-signatory: Sudan) but the United States, and probably other permanent members, would certainly veto any such resolution.

It's possible that the recent upgrade of the Palestine Liberation Organization observer mission at the General Assembly to "nonmember observer state" might allow this newly redefined entity to accede to the Statute and join the Assembly of State Parties at the ICC. However, even this is not clear. In April 2012, the ICC prosecutor's office stated that it "has assessed that it is for the relevant bodies at the U.N. or the Assembly of State Parties to make a legal determination whether Palestine qualifies as a state for the purpose of acceding to the Rome Statute."

It's perfectly true that in any globally-representative multinational body or agency, Palestinians have a guaranteed majority that they can call upon at any time. This is the same majority that upgraded their status at the General Assembly and then voted overwhelmingly to approve Palestine joining UNESCO. So if Palestine applied to join the Assembly, it has a high chance of being approved. It thereby might be able to gain some standing at the ICC.

But Assembly membership would only be the first stage in a lengthy and complex legal process. Because after that, Palestine would have to be judged to be a competent legal sovereign in the occupied territories with standing to bring complaints against Israeli officials on the grounds that they were operating unlawfully within territory under the jurisdiction of the ICC member state of Palestine.

The legal, political and diplomatic difficulties with such a claim would be considerable and almost certainly time-consuming. But they, too, are not theoretically insurmountable. It's possible that after a lengthy process Palestine could use its upgraded U.N. status to accede to the Statute and gain access to the ICC. And it's further possible that Palestine would eventually be held to be the legal sovereign in, at the very least, "Area A" (which technically includes Gaza), if not the entirety of the occupied territories (excluding the Syrian Golan Heights).

If, and only if, all of that happens, Palestinians would finally have the standing and legal basis for approaching ICC prosecutors and urging an investigation into the behavior of Israeli officials in territories deemed to be under their sovereignty.

By now any reader will have understood that this process is neither straightforward, simple and quick, nor are any of its outcomes guaranteed. But even then, an ICC investigation of, let alone charges against, Israeli officials are not necessarily within the Palestinians' grasp.

The bottom line is that the ICC, like all multinational institutions, is primarily a diplomatic and political body. Any such decision would be as much a diplomatic and political calculation as it would be legal or criminal. And this may be not only the final, but the most difficult, hurdle Palestinians would face in trying to initiate such a process. One more thing to bear in mind: prosecutors in any system generally don't bring charges in cases they don't think they can win.


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