Out of Africa? Palestine, Israel and the ICC

What are the implications of the Palestinian referral and can it ease tensions between the ICC and African governments?

Date: 2015-03-10

Time: 10:30 to 13:00

Venue: Conference room , ISS Pretoria , Block C , Brooklyn Court , 361 Veale Street , map

The decision by the International Criminal Court (ICC) to examine the Palestine situation marks the first global effort to seek justice for victims of the Israel-Palestine conflict. But it is unlikely to ease tensions between the African Union (AU) and the ICC, according to speakers at the seminar.

Palestine signed up to the ICC’s Rome Statute in January 2015. Shortly afterwards the court’s chief prosecutor announced that the ICC would examine whether genocide, war crimes or crimes against humanity were committed in the Israeli-Palestinian conflict. This could lead to investigations and prosecutions of those allegedly most responsible, and would bring accused from outside Africa before the Hague-based court for the first time.

Legal and political experts at the seminar considered whether the Palestinian referral might improve the strained relations between the ICC and the AU. The ICC has faced heavy criticism for its apparent focus on Africa, and the prosecutor’s latest decision could be the first step in changing perceptions.

But the Palestinian referral has not received much attention from the AU and according to University of Pretoria professor, Dire Tladi, it is unlikely to influence the AU’s views of the international court.

‘We often think about the ICC-AU relationship as being a contestation between forces of good and forces of evil; protagonists and villains. The truth is much more complicated and nuanced. The ICC experience with the Palestinian question is a reflection of that.’

Speakers also debated the practical, legal and political implications of the new situation before the ICC. Israel and other countries are still contesting Palestine’s statehood. According to Max du Plessis, an ISS associate and associate professor at the University of KwaZulu Natal, in addition to Palestine’s statehood – which he asserts is now accepted by the United Nations – there are four elements that must be considered in dealing with the legal implications.

First, the ICC does not have retroactive jurisdiction in Palestine, which means it can only deal with crimes committed after June 2014 as requested by the Palestinian authorities in their referral.

Second, the ICC must consider which territories will be under its jurisdiction. This would likely be East Jerusalem, the West Bank and the Gaza Strip – all of which are currently under Israeli occupation.

Third, what crimes will the ICC deal with and whether it will, for the first time, consider the war crime of settlement.

Last, the ICC must consider whether domestic action has been or will be taken by the relevant authorities. In this regard, the ICC must abide by the principle of complementarity.

The legal implications must also be weighed against the politics, and this could muddy the prospects for accountability and peace. The ICC’s investigation could implicate both Israelis and Palestinians which would likely affect efforts to resolve the conflict.

‘The Israel-Palestine conflict is at the nexus of one of the most politically sensitive, and geopolitically critical conflicts in the world, which means that political pressure will be immense’ said Kelly-Jo Bluen, Project Leader at the Institute for Justice and Reconciliation.

While justice may be served for the victims of the specific crimes the ICC might investigate, it will not solve the systemic injustice afflicting Palestine. ‘Criminal justice alone cannot eradicate structural violence and legacies of oppression’ said Bluen.

How the ICC and international community respond to the Palestinian case will affect international criminal justice and conflict resolution globally. ‘The road to justice for Palestine is a long one. There are many political and practical obstacles’ observed Bluen.

One obstacle is that the ICC relies on governments to help carry out its work. Israel is unlikely to cooperate because it has not signed the ICC’s Rome Statute and strongly opposes the Palestinian referral. The ICC will need more than Israeli support, however, and indications are that some countries are wiling to cooperate, while others continue to condemn the referral and the ICC process. Further, Israel has even reportedly lobbied like-minded states to withdraw financial support to the ICC.

‘The ICC’s experience in Kenya and Sudan has illustrated that without state cooperation, there are serious challenges to prosecution’ said Bluen, who sees this as the largest hurdle facing the international court.