The Palestinians have weaponized the International Criminal Court (ICC). Leveraging the decision of the United Nations General Assembly to bestow Palestine with the title “Non-Member Observer State,” the Palestinian leaders decided to join the ICC, which accepted its application with open arms. Then, on May 15, 2018, the Palestinians exercised their “right as a State Party to the Rome Statute to refer the Situation of Palestine for immediate investigation” to the ICC prosecutor, who had previously opened an informal “preliminary examination” on her own initiative.
The Palestinians’ referral checked many of the boxes defining the crimes subject to ICC jurisdiction, particularly crimes against humanity and war crimes.
They charged that the “unlawful occupation of the territory of the State of Palestine and the establishment and maintenance of settlements by Israel in Occupied Palestinian Territory (“OPT”), including East Jerusalem, has (sic) involved the enactment and maintenance of a multi-layered system of violence and intimidation against the Palestinian population, the destruction and unlawful appropriation of their properties, the severe violation of their fundamental rights on discriminatory grounds and the institutionalization of a separate structure of life and dual system of law and other measures deliberately intended to change the demographic composition of the OPT, including in particular in East Jerusalem. It has also involved the widespread and systematic attack on the Palestinian civilian population, through the commission of crimes, to create and perpetuate such a regime. These acts qualify under the Rome Statute as both war crimes and crimes against humanity.”
On May 24, 2018, the ICC’s Presidency assigned the “Situation in Palestine” to the ICC’s Pre-Trial Chamber, which took steps to begin informing alleged “victims” as to the ICC’s role and activities, so they can “properly exercise their rights.”
The ICC’s chief prosecutor Fatou Bensouda’s office issued its “Report on Preliminary Examination Activities” for 2018 on December 5, 2018, which included a section on the Palestinian situation. It appears that a decision is near on whether to open a formal investigation into Israeli actions in the West Bank and Gaza mentioned in the report...
Israel’s Foreign Ministry stated its official position with respect to any ICC proceedings brought against it: “Israel is not a member of the International Criminal Court and our clear stance is that the court does not have authority to deal with the Israeli-Palestinian conflict, among other things because the Palestinian Authority is not a state.”
Is Palestine a genuine state? Not really, but that does not matter to the ICC
Israel is right that the Palestinian Authority is not a state in any meaningful sense. Given the Palestinian Authority’s split with Hamas which controls Gaza, the Palestinian Authority is a dysfunctional entity without full control under a unified government of the territory or population it claims comprises the “State of Palestine.”
However, such an inconvenient fact is unlikely to stop the ICC from proceeding with a formal investigation and possible charges against Israeli political leaders, security police, and Israeli Defense Force (IDF) military personnel. The problem is that many states – with the notable exception of the U.S. for now – will abide by the decisions of the ICC and enforce any arrest warrants against Israelis traveling outside of Israel that the ICC may choose to issue.
The time is drawing near when the Palestinians’ lawfare strategy against Israel is likely to fully bloom, with the help of the ICC. Israel will need to be prepared immediately both to defend itself and to move to offense. This article has laid out a framework for such a multi-tiered response.
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