International Criminal Court is seen in The Hague, Netherlands October 1, 2018. Picture taken October 1, 2018. REUTERS/Eva Plevier Image Credit: REUTERS

As far as Palestine is concerned, it is fair to ask why the Palestine Liberation Organisation (PLO) initially refused to sign the International Criminal Court (ICC) Statute? Why did it return to sign it? What is the ‘secret’ of the Trump administration’s position vis-a-vis this Court, especially with regard to the Palestinian issue?

When the Palestinian National Authority (PNA) presented a full case to the court about Israel’s crimes during its war against the Gaza Strip in 2008, the case was rejected on the grounds that Palestine lacks the status of a state. When its status changed from an “observer” to a “non-member state” and after the PNA signed 15 international agreements, there was an increased demand for the speedy signing of the Rome Statute as a starting point for accession to this international tribunal.

Indeed, on May 22, 2018, the Palestinian Minister of Foreign Affairs presented the so-called referral request giving the ICC prosecutor, Fatou Bensouda, a legal basis to go beyond the preliminary investigation initiated by her office in January 2015. The referral, handed by the Palestinian minister to the prosecutor — in accordance with Article 45 of the Statute — demanded an immediate investigation to be opened into the war crimes and crimes against humanity committed by Israel in the occupied territories, as of June 13, 2014. The Palestinian documents included a list of Israeli political and military leaders, most notably Prime Minister Benjamin Netanyahu, that the court was asked to prosecute for the crimes they committed against the Palestinian people.

After this Palestinian step, the prosecutor replied in a special statement that “the referral does not automatically lead to an investigation”, but added that “there should be no doubt that in the present case and in any case before my office, I will always take the decision guaranteed by the mandate given to me”.

Although the referral does not automatically lead to an investigation under Article 12 of the court law, if the prosecutor decides the case referred to her warrants an investigation in accordance with the standards set forth in the Statute. In this case, the Statute does not require permission from the Pre-Trial Division in order to initiate an investigation.

Bias towards Tel Aviv

In April 2018, the court prosecutor promised to prosecute perpetrators of atrocities against the population of the Gaza Strip and warned that violence against civilians could constitute crimes under the Rome Convention. The US threats against the PNA for seeking to punish Israel through the court came after the case dossier was submitted for an investigation. The threats are no more than a means of pressure and an attempt to protect Israel, which commits crimes against the Palestinian people. We have also seen how the US administration is taking a different course from all previous American policies towards the Palestinian cause. The threats made by the White House national security adviser to the ICC, in addition to previous decisions to cut aid to the Palestinians, transfer the US embassy to occupied Jerusalem, and attempts to write off UNRWA, all confirm full bias towards the Israeli occupation. We’re not pointing an accusing finger at anyone if we say there is reluctance from the ICC criminal prosecution division to open an investigation against Israeli military leaders. Such an investigation by the court against Israeli generals means issuing arrest warrants and criminal prosecutions and barring their entry into all countries that have ratified the Rome Convention, including most European countries. Since the establishment of the court, European states have always adhered to its decisions, either by not receiving wanted persons or by arresting them if they enter their territories.

Given the above, the ICC, together with any other UN agency, stands helpless before global American hegemony. It seems to me that the court does not direct criminal charges to powerful countries but only to weak ones! An example of how the United States dealt with the court was when Nicaragua filed a case against it in 1986, accusing Washington of violating international law and arming the opposition which led to the killing of 75,000 people. The United States rejected the allegations at the time, saying it was in self-defence and that the decisions of the international tribunal were not binding on the US.

The question that persists: Will the ICC open an investigation into Israel’s crimes? Since January 2016, and despite the continuing Israeli violations against the Palestinian people, the court is still considering the possibility of opening a preliminary investigation into Israeli war crimes, and has not yet moved on to the next step of launching a comprehensive investigation that may lead to charges. “There is no time limit,” court officials have said, “we are working hard on this file and in due course, when all conditions are met and we have finished all the assessments, a decision will be made because of the abundance of information and the workload to analyse it. It is one of the files with the largest number of collaborators working on it.” More came from Bensouda recently who was quoted as saying that “the situation in Palestine has been subject to a preliminary study since January 16, 2015 to ensure that the criteria for initiating an investigation are met. This preliminary study has made significant progress and will continue to follow its natural course.”

(This is the second of two articles on the

International Criminal Court’s mandate in Palestine and Israel)

Professor As’ad Abdul Rahman is the chairman of the Palestinian Encyclopaedia.