Palestine at the International Criminal Court: An Opportunity for Justice

By Katherine Gallagher, Senior Staff Attorney, Center for Constitutional Rights

Today the state of Palestine officially became the 123rd state party to the International Criminal Court (ICC). This demonstrates not only that Palestine undeniably exists but that it is committed to operating among the community of civilized nations under the rule of law -- unlike Israel, which voted against the very creation of the court.

Palestine actually acceded to the court on January 2, 2015, but under the court's rules, its status as a member only became official today. Indeed, the prosecutor already opened a preliminary examination into possible serious violations of international law on the territory of Palestine, including East Jerusalem, on January 16; Palestine has vested the court with jurisdiction as of June 13, 2014, so violations that occurred during the brutal summer assault on Gaza -- the killing of children, the strikes on schools and hospitals, and the extreme hardships and collective punishment that flow from the continued closure of Gaza -- fall squarely within the prosecutor's mandate.

This development has been a long time coming. The international community spent years engaged in dilatory debates about Palestine's statehood and its ability to accede to the ICC statute, while violations committed by the Israeli military against Palestinian civilians have continued and impunity has been the norm. Earlier efforts to go to the ICC after the 2008/2009 "Operation Cast Lead" failed when the former prosecutor concluded that he could not investigate crimes in Gaza because Palestine was not recognized as a state; the United Nations General Assembly formally granted Palestine Non-Member Observer State status in November 2012, which finally opened the door for Palestine to join the ICC.

While the debates continued, there were no prosecutions and nowhere to turn for accountability for the international law violations committed by the Israeli military in the Gaza Strip during Cast Lead, when an estimated 80 percent of the more than 1,400 Palestinians killed were civilians. And no prosecutions when more than 150 Palestinians were killed during the week-long "Operation Pillar of Defense" in 2012.

Repeated condemnations of ongoing settlement development in the West Bank, including East Jerusalem, as violations of international law have had no effect, with the Israeli government under Netanyahu expanding settlements across the Occupied Palestinian Territory and, in particular, in and around East Jerusalem. In the face of impunity -- and immunity -- for war crimes and crimes against humanity by the Israeli military in the Occupied Palestinian Territory, Palestinian human rights activists and leading members of civil society urged their government to ratify the Rome Statute and join the ICC. Now victims are eager to see a court move expeditiously from the preliminary examination stage to finally investigate and, if sufficient evidence exists, prosecute Israeli officials.

During the 51-day assault on Gaza in July/August 2014, more than 2,130 Palestinians were killed, including more than 500 children. According to the United Nations, at least 142 Palestinian families had three or more members killed in single Israeli attacks. More than six months later there has been no serious movement toward accountability for the mass crimes committed in Gaza. The lack of proper investigations across the board demonstrates that Israel is unwilling, if not also unable, to conduct thorough, credible, and transparent investigations into crimes by its own military. That is precisely the purpose for which the ICC was created.

Although Israel is not a party to the ICC, its citizens -- including high-level government or military officials -- can be investigated or prosecuted for crimes that occur on the territory of a member state, such as Palestine. (The same is true of Americans who commit or authorize serious crimes, such as torture, on the territory of a state party. Indeed, in early December, the prosecutor said that torture by U.S. citizens falls within the scope of her investigation in Afghanistan. It remains to be seen whether she will expand her investigation to include torture revealed in the Senate Torture Report at CIA "black sites" in other member states, such as Lithuania or Poland.)

The ICC prosecutes individuals, not states, and assigns individualized, rather than collective, guilt. The court will not hold "Israel" or all Israelis accountable for breaches of international law, but an investigation will enable the court to assess patterns and policies and to identify those who bear significant responsibility for war crimes and crimes against humanity. This may lead it to look at the role of commanders of brigades involved in "Operation Protective Edge" or at the civilian leadership.

Israel and the United States -- who have both refused to join the ICC -- have been the strongest critics of Palestine's turn to an international body embraced by much of the rest of the world. In early January, Israel took measures to punish not only the Palestinian government but also the Palestinian people for seeking justice and accountability through the law: Israel immediately moved to freeze $127 million in tax funds that should have been transferred to the Palestinian Authority; 75 U.S. senators threatened to take similar action. (Israel just announced it will release some of those funds, in large part because its defense minister considers that doing so will enhance Israeli's own security by forestalling a full-blown economic crisis in the West Bank, as well as to head off threats by the Palestinian Authority to stop security coordination.)

The U.S. must support, not impede, the prosecutor's work at the ICC. Even if the U.S. has generally maintained a complicated, and at times, hostile relationship to the ICC, it has previously supported the victims of war crimes in the former Yugoslavia, Rwanda, and Sierra Leone and has pressed the Security Council to refer the case of Syria to the ICC. It must not stand in the way of Palestinian victims pursuing their right to accountability.

Today marks the start of a new chapter in Palestinians' search for justice -- a necessary component for lasting peace. The U.S. has long expressed its desire to see lasting peace between Israel and Palestine and across the Middle East. Today let the U.S., too, start a new chapter and express its support for a rule-of-law-based solution to the conflict and the work of the ICC in Palestine.

Katherine Gallagher is a senior staff attorney at the Center for Constitutional Rights in New York and a vice president of the international board of the International Federation for Human Rights (FIDH). Prior to joining CCR, she was a legal officer at the International Criminal Tribunal for the former Yugoslavia from 2001 to 2006. Follow her on Twitter @katherga1.