Going to the International Criminal Court May Backfire for Palestine

With the Gaza ceasefire entering its third day, the apprehension is growing as to what will happen once the declared 72-hours ceasefire ends. Although Israel has expressed its willingness to extend the ceasefire with the Egyptians mediating in talks between Israel and Palestine, Israel’s armed forces chief, Benny Gantz, has remarked that Israel will not hesitate to use force if its citizens’ security is threatened, nearly undermining the efforts of Cairo of turning the temporary ceasefire into a long-term truce.

On the other side, at the international level, countries, eminent people and human rights groups are creating chorus of voices asserting that the atrocities committed by Israel in Gaza largely resembles to a genocide. They are also blaming Israel of being complicit in large-scale inhuman acts and war crimes, suggesting that Israel should be dragged to International Criminal Court (ICC). And the suggestion seems to have reached to Palestinian authorities as well, as they also appear poised to knock the doors of ICC against Israel.

Some human rights group, including Human Rights Watch, also wrote a couple of months ago to Mahmoud Abbas to request the ICC to enquire into the war crimes committed by Israel in Palestine, suggesting that the crimes against humanity should not go unpunished. Though Abbas has vehemently opposed any proposition to go to the ICC in the past, this time the pressure is mounting from both human rights group and factions at home and even inside the government.

However, Palestine is currently not a member of the ICC and thus is beyond the ambit of the jurisdiction of the ICC. Although it had tried acceding to ICC jurisdiction in 2009, the ICC declined its attempts of accession by evoking the ambiguity regarding its status as a state. With getting the status of a non-member observer from UN General Assembly in 2012, Palestine can now submit a declaration signing the Rome Statue to be a member of the ICC. Only after this the ICC will have any role to play in the conflict.

Any attempt from Palestine to appeal in the ICC for justice will most certainly be parallel to defying western powers. With France and the UK having expressed their expostulation in the past regarding the involvement of ICC in the conflict, the road ahead will not be easy for the moderate Abbas. Further, it will also nettle the United States which even questions the validity and authority of the ICC – the United States is not a member of the ICC. And collectively all these can very much be harmful for the peace process, if there is one going or possible in near sight at all.

A culmination does not seem possible in the near sight of the Israel-Palestine conflict. And if Abbas does not take a stern step here by resorting to the available legal mechanisms, Palestinians will keep suffering and being the target of Israel.

But the ICC coming into the conflict can also recoil for Palestine, as the ICC investigation will look into the war crimes of each side, including that of Hamas. Israel may become the primary target, but Hamas will also not be left out of the investigation. And considering the track record – African countries have accused ICC for absolute partiality and punishing them for petty crimes – and the dependence of the so-called ‘world’s most powerful prosecutor’ on the international community to carry out its verdicts, chances are that Israel may escape ICC’s decisions because of its influence and power but that hardly seems feasible for Hamas in case of being charged with crimes.

Established in 2002 under the Rome treaty to address the severest of international crimes – mainly war crimes, genocide and inhuman acts – as an independent tribunal, the ICC is the last hope of the victims. However, it is entirely on a state to accept the legitimacy of ICC. And though 122 countries has consented to the Rome treaty so far, some of the most powerful states, including United States, China and India, of the world are still very much critical of the status and functioning of the ICC.

Avneesh Kumar is a doctoral student at Aligarh Muslim University.