Tomorrow, the United Nations General Assembly will vote overwhelmingly to upgrade Palestine’s status from “Permanent Observer Entity” to “Non-Member State Permanent Observer.” This seemingly banal change in nomenclature may have profound consequences in the West Bank and Israel, but it will not make much of a noticeable difference at the U.N. itself.
The one international institution where this upgrade could change things is the International Criminal Court, which is not part of the U.N. at all. Palestine may join the ICC after Thursday’s vote, but it is very unlikely to convince the court to open a war crimes investigation because of both legal and political constraints.
Last year, the Prosecutor of the ICC turned down requests by Palestine to investigate alleged Israeli war crimes in Gaza on the grounds that Palestine is not a "state" and therefore has no standing to ask the prosecutor to initiate an investigation. Once the General Assembly affirms that Palestine is a non-member state, that could change. Palestine could ratify the Rome Statute that governs the ICC and invite the ICC to investigate war crimes on its territory. This has led to concerns that Palestine's upgrade at the U.N. will lead to international war crimes charges against Israeli officials. But this is a remote possibility at best.
The Rome Statute gives the Prosecutor great leeway in turning down investigations. Kevin Jon Heller, a senior lecturer at Melbourne Law School, put it succinctly in an email:
If the Prosecutor refused to open an investigation on the grounds of insufficient evidence or complementarity, the Pre-Trial Chamber could ask but not order the Prosecutor to review that decision. If the Prosecutor refused to open an investigation solely on the ground that it would not be in the interests of justice, the Pre-Trial Chamber could order the Prosecutor to conduct the investigation.
In other words, the prosecutor has some escape clauses: she can find insufficient evidence to pursue charges against individuals accused of war crimes, or argue that Israel’s legal system is capable of pursuing the charges. Finally, she can simply turn down an investigation if she thinks such an investigation would be contrary to the interests of justice. Presiding judges at the ICC have only limited ability to overturn her decision.
So the Prosecutor has acceptable legal ways to avoid investigating Israelis even if the Palestinians demand it—but would she use those “outs?” And would the judges accept it? If the ICC’s first 10 years are any indication, the court would want to avoid such an investigation at all costs.
An investigation of Israel would be a radical departure from the cases the court currently pursues. The seven cases before the court all deal with African countries with barely functioning justice systems, and are the result of primarily intra-state, rather than inter-state, violence. This is not to say that situations have to fulfill these criteria to be before the ICC, but the court is simply not accustomed to pursuing charges against a western country with a strong legal system for its conduct in international conflict.
Even if the court could get over these hang-ups, pursuing charges against Israelis would be tantamount to political suicide for the court. It would not be unreasonable to think that several European countries would hold back their funding for the ICC, which is already cash-strapped. The U.S. is not a member, but the Obama administration has developed a productive working relationship with the ICC over the past 5 years. That would change overnight and Washington would almost certainly re-start a campaign to delegitimize the court around the world. The U.S. could even resume efforts—championed by John Bolton in the early 2000s—to condition bilateral American assistance to the recipients’ rejection of the ICC. [2]
Finally, even if the court did decide to pursue charges, it would be unable to apprehend wanted suspects. The court has no police powers. It relies on governments to arrest and extradite the accused. Israel certainly would not turn over its own officials, and neither would Israel’s numerous allies around the world. Alleged war criminals would easily evade justice—a problem that is already undermining the credibility of the court.
The ICC is primarily a legal institution, but it is not sealed off to the dynamics of international power politics. Palestinian membership to the ICC is a feature of Palestinian statehood and some states are weaker than others. The ICC has very little to gain and everything to lose from pursuing charges against Israel.
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