Overblown

04.17.15 6:40 PM ET

Why Palestine Has No Chance at the International Criminal Court

American and Israeli leaders expressed consternation at Palestine’s membership in the International Criminal Court. Some believe Palestine will try to prosecute Israel for war crimes. But with no way of investigating or punishing crime on its own, the concern is overblown.

Palestine’s membership in the International Criminal Court, formalized on April 1, 2015, caused consternation in both the United States and Israel. The ICC has a mandate to prosecute genocide, war crimes, and crimes against humanity, and Israeli Prime Minister Benjamin Netanyahu has vocally questioned the ICC’s authority and called on Israel’s allies to resist cooperating with investigations of Israeli officials should they be indicted.

In fact, Israel has little to fear from the ICC. The threat is overblown. Palestine has arguably even already made a huge mistake by failing to use its membership as leverage.

Let’s play out how an ICC proceeding would actually work. If it formally refers itself to the ICC, Palestine is likely to argue that Israel engaged in war crimes when it conducted military operations in the Gaza Strip in July and August 2014. The ICC could also prosecute Israeli settlement activity in the West Bank, a policy that implicates very senior-level officials, since the ICC’s governing statute defines as a war crime the building of settlements in military-occupied territory in order to change its demographic makeup.

Given what we know about the ICC, however, criminal prosecutions against Israeli officials are unlikely anytime soon, and given what we know about Palestine’s political situation, that may be the point.

First, Palestine’s referral to the ICC is fraught with risks. The ICC may prosecute all parties to a conflict, and that includes Palestinian crimes as well as Israeli ones. The allegations that Hamas fighters used human shields and fired unstable rockets at civilian areas, if proven, almost certainly constitute war crimes. By contrast, allegations against Israel are much more complex, and largely matters of proportion: for instance, whether the Israeli military provided sufficient warning before attacking residential buildings or caused excessive collateral damage pursuing low-level Hamas fighters. The legality of Israeli settlements is the most complex question of all—and not one that the ICC Prosecutor or judges are well-placed to answer as experts in criminal law. This would be a mess.

Second, the ICC Prosecutor has always been cautious—perhaps too cautious. Investigations in Afghanistan and Colombia, two member states, have dragged on for years. Although the Prosecutor, currently Fatou Bensouda of Gambia, has insisted that she prosecutes when the evidence is sufficient, she has tended to target politically “easier” cases in Africa over ones involving major power interests.

Third, the ICC resisted Palestinian membership in the past, suggesting that the court may view the entire Israel/Palestine conflict as too hot, and too political, for it to handle. True, the ICC rejected Palestine’s 2009 referral after determining Palestine was not a state, and the United Nations clarified Palestine’s status as a state in 2012. However, all indications are that the ICC does not want this case. It has refused, for example, to backdate its jurisdiction over Palestine to the period before Palestine’s status was upgraded in 2012.

The most important point to remember in all of this is that the ICC is defined by a central paradox: it is both strong and weak. It is strong in the sense that the Prosecutor may prosecute literally anyone suspected of an international crime, even if that person hails from a non-member state. True, the ICC can only prosecute if a country is unwilling or unable to do so. It is a court of last resort that complements domestic legal systems.

But no domestic action is proceeding, the Prosecutor alone makes the decision of which suspects to indict (of course, the ICC’s judges determine whether she has sufficient evidence). She alone, for instance, may prosecute Dick Cheney or other senior American officials for war crimes, such as the alleged torture and mistreatment of prisoners in Afghanistan. Because Afghanistan is a member, the ICC has territorial jurisdiction over U.S. actions during the Afghanistan war. This strength is what fuels American (and Israeli) opposition to the ICC: the fear of a prosecutor gone rogue.

But the ICC is simultaneously weak, even fragile. It has no police force of its own. It cannot arrest suspects, gather evidence, or enforce its own judgments without at least some state cooperation. This lack of cooperation has led to the collapse of prosecutions against Sudanese President Omar al-Bashir for the Darfur genocide and against Kenyan President Uhuru Kenyatta for the 2007 election violence. In al-Bashir’s case, the Prosecutor could not even persuade other member states or the UN Security Council to arrest al-Bashir. In the Kenyatta case, the government of Kenya refused to provide evidence and frequently intimidated witnesses. Without sufficient evidence, she suspended both investigations. Even in the Court’s other prosecutions, all based in Africa, the Prosecutor receives only selective cooperation: governments appear willing to turn over evidence against political opponents but frequently not themselves.

Palestine is unlikely to see results from an ICC prosecution for many years, if ever.

But this is not to say that it has nothing to gain. Palestine’s membership in the ICC likely has political motivations designed to extract concessions from Israel. If the threat of the ICC action spurs Israeli investigations of its own alleged misconduct, that alone could be a success from the Palestinian perspective. If a similar threat slows settlement activity or deters future Israeli military operations, these too could be successes.

Finally, Palestinian membership may be part of a domestic political chess game between Hamas, which controls Gaza, and Fatah, the ruling party in the West Bank. Fatah, the party of Palestinian President Mahmoud Abbas, made the ICC referral, but Hamas was primarily responsible for the alleged Palestinian war crimes. Although Fatah would be loathe to admit it publicly, an ICC investigation into the Palestinian situation could be an effort by Fatah to strengthen its position against Hamas.

The risks of prosecution to Israeli and Palestinian leadership are still low at this point. Palestine has not yet made a formal referral of the case; no official investigations are underway; and the ICC has not gathered any evidence. However, the risks to the ICC as an institution are already high. While investigating Palestine would help the ICC avoid allegations that it targets politically “easy” cases in Africa, becoming an instrument in the Israeli-Palestinian conflict could affect the ICC’s legitimacy. Given her cautious nature, we can expect the Prosecutor to proceed slowly. Any potential prosecutions are many years away, and that’s only if the parties cooperate. And that seems like the least likely scenario of all.