Palestinians Ask ICC For Probe Into Israeli Crimes

The Palestinian National Authority (PNA) has formally submitted a referral to the International Criminal Court (ICC) calling for an investigation of alleged Israeli crimes in the Palestinian territories. The referral comes on the heels of violence in Gaza, in which Israeli forces killed 62 Palestinians attempting to cross the border as part of a protest and injured thousands more in a single day. Over the course of the entire six weeks of border protests, Israeli troops killed more than 100 Palestinians and injured 10,000. Palestinian assistant minister for multilateral affairs Ammar Hijazi said the violence in Gaza was what pushed Palestinians to submit the referral to the ICC.

The PNA’s Foreign Minister, Riyad al-Malki, met with the ICC’s prosecutor Fatou Bensouda on Tuesday. According to Al Jazeera, in a press conference after the meeting, Malki explained that the referral covered issues including “settlement expansion, land grabs, illegal exploitation of natural resources, as well as the brutal and calculated targeting of unarmed protesters, particularly in the Gaza Strip.”

The ICC’s office of the prosecutor began an investigation in January 2015. In the preliminary stage, the ICC seeks to determine whether a formal investigation is warranted based on documents sent to the ICC and whether local courts are upholding their duties. The stage of investigation has been focused on the Israeli settlement policy and alleged crimes from the 2014 conflict over Gaza.

This marks the first time in history that the PNA has formally submitted a referral for an ICC investigation. Previously, the PNA and other Palestinian Non-Governmental Organizations (NGOs) had submitted documents as evidence of Israeli crimes, hoping the ICC would open a formal investigation of its own accord. Now, the referral makes it more difficult for the ICC to remain in the preliminary phase of the investigation indefinitely. According to former ICC official Alex Whiting, the referral “signals willingness to cooperate, and therefore pushes OTP [the ICC’s Office of the Prosecutor] towards investigation.”

The Israeli Foreign Ministry argued that the referral is “legally invalid, and the ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the Court and because the PNA is not a state.”

It is true that Israel is not a participant in the Rome Statute, and thus not a member of the ICC, meaning the ICC has no jurisdiction within Israel. However, Palestine has been a non-member observer state at the United Nations since 2012, which allows it to participate in international groups like the ICC. Palestine became a member of the ICC in 2015, therefore Israeli nationals can be tried by the ICC for crimes committed within Palestinian borders.

However, even if the ICC opens a formal investigation, Israel’s refusal to support an investigation could make the effort toothless. As ABC News explains, “While the ICC can indict suspects, it has no police force and has to rely on cooperation from member states to enforce arrest warrants.”

Former legal adviser to Palestinian negotiators Diana Buttu, speaking with Al Jazeera, explained that while a referral “has been an option for the Palestinian Authority for quite some time… there is [now] enough pressure on Palestinian Authority President Mahmoud Abbas to do something.”

Previously, Palestine has avoided going to the ICC due to, in part, pressure from the U.S., Israel, and other international groups. Buttu explains, “International donors have also played a role in making it clear that they will not support a Palestinian Authority that is actually defending Palestinian rights.” In the past, Israel has retaliated against Palestinian moves towards an ICC investigation. In 2015, when Palestine became a member of the ICC, Israel refused to give the PNA millions of dollars in tax revenues that Israel collects on behalf of the Palestinian Authority.

Both Israel and the U.S. have urged Palestine to not seek an ICC investigation. Although U.S. President Donald Trump is expected to reveal the U.S. peace plan for the Israel-Palestine conflict in the coming weeks, the most recent peace talks broke down four years ago without making progress.

Although the referral to the ICC raises tensions between Israel and Palestine, there is some doubt that a U.S. mediated peace process could achieve anything absent the referral. Israel and Palestine have high distrust for each other, and the Palestinians have been cutting ties with the U.S. over its decision to recognize Jerusalem as Israel’s capital and move its embassy to Jerusalem.

Chris Conrad