What happens if the Palestinian Authority takes Israel to the ICC?

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Palestinian men walk away from a covered dead body in Khuzaa, near Khan Yunis in southern Gaza Strip, on August 1, 2014. (Photo: AFP-Telawi)

By: Juman Quneis

Published Friday, August 1, 2014

Since its establishment, the Palestinian Authority has yet to take any international legal steps against Israel's political or military leaders. But will the situation change after it ratified the Rome treaty [for the International Criminal Court (ICC)]?

Ramallah – The Palestinian National Authority (PNA) in Ramallah faces a new challenge in making use of the United Nations Human Rights Council decision to start an inquiry into the Israeli war on Gaza. Although the results of the report are expected to find ample evidence of Israeli atrocities amounting to war crimes – as was the case with the Goldstone report on the 2009 war - it is unlikely that this will lead to any types of sanctions against the occupation and its leadership.

In this regard, international humanitarian law expert Abdullah Abu Eid explained that the reports of the Human Rights Council are binding only in theory. "The Council lacks the necessary tools to apply its decisions on the ground, such as imposing economic, political, or military sanctions," he told Al-Akhbar.

However, there are two available options to make use of the report. The council could present the results to the UN Security Council and the Palestinians could seek the International Criminal Court (ICC). The PNA seems to have taken the first step towards the second option. On July 30, it announced the ratification of the Rome Accords and is now capable of filing a complaint against Israel before the ICC.

Abu Eid maintained that the first option would be futile: "It's simple. The Security Council has always been biased towards Israel. It works according to the balance of global powers. The five big powers could veto any decision, which is what the US usually does with Tel Aviv."

"Over the years of struggle with the Palestinians, Israel fortified its position and built a network of interests, ensuring that major powers in control of international entities will be on its side. It also demonstrated prowess in exploiting all the loopholes to weaken the impact of any decision issued by such bodies," he added.

The second option, the ICC, avoids the exhausted scenario above. This required the ratification of the Statute of the Court, known as the Rome Treaty, which Palestinian President Mahmoud Abbas kept threatening to do, in response to the lack of political and diplomatic means for a resolution. Yet, until the writing of these words, no official information is available about whether the procedures for ratification were completed.

All the conditions necessary to convict Israel of war crimes are present. This could entail imposing sanctions and even military intervention, such as what happened in Sudan, Iraq, Kosovo, and so on. But it would not be this easy. "Membership in the ICC is a double-edged sword," Abu Eid warned. "It qualifies Israel, even if it does not join the court, to file lawsuits against the leaders of Hamas, Islamic Jihad, and anyone who might say anything construed as incitement to murder."

According to the legal expert, joining the treaty requires "a national decision, based on the review of all options and agreeing to bear the outcomes."

On the other hand, the director of al-Haq Human Rights Association, Shaaban Jabarin, believed that "Israel's case against the Resistance should not be a justification for the delay. There are legal foundations for defending the resistance, including that it is a reaction to the actions of the occupation."

Another issue pointed out by Jabarin is the lack of civilian casualties on the Israeli side. A comparison between Israeli and Palestinian civilian casualties would show a great difference in numbers. Jabarin maintained this was because the Resistance avoided targeting civilians.

"It is no longer possible to accuse the Resistance of firing rockets randomly. It would be possible to say that the shelling targeted the army ministry and military camps in Tel Aviv, not the civilians," he explained.

Jabarin did not see any reason for the Palestinian leadership to delay the decision to join the ICC. "It could have complained against Israel before that on crimes other than murder, such as settlements, which are an evident crime that the Palestinians cannot be indicted for in any situation."

In the past, local human rights organizations tried to initiate prosecution against Israeli war criminals in arenas other than the ICC. Several Palestinian organizations filed lawsuits [against Israeli leaders] in countries that are signatory to the Treaty. However, no suspects were arrested.

In a recent lawsuit filed by al-Haq against Ehud Barak – Israeli defence minister in the 2012 war [who was on a visit to London] - the British foreign ministry convoluted its local laws to avert a political crisis with Israel. It considered him an official guest, granting him impunity, although the visit was private and aimed to raise money for Israel from Jewish organizations in the UK, according to media sources.

The Palestinian Center for Human Rights faced the same situation. After filing a lawsuit against Doron Almog, commander of the southern region and responsible for destroying 59 homes in Rafah without any security reasons. He was supposed to be arrested as soon as he landed in Heathrow Airport. However, the order was leaked and he returned in the same plane, evading justice.

Jabarin said that Palestinian organizations will continue to go after Israeli war crimes, "even if some countries continue to cover them. It is enough that these criminals feel that they are accountable and guilty."

However, it does not seem that Palestinian politicians are giving the Human Rights Council decision to open an inquiry into the war on Gaza the consideration it deserved and that the investigation is merely the first step on a long and arduous road. Palestinian Foreign Minister Riad al-Maliki described the decision as a "political achievement" for Abbas, who dedicated it to "our Palestinian people and their steadfastness in Gaza."

If this is the case, the expected scenario is that the inquiry will send its findings to the Security Council, where they will be butchered by the blade of the US veto. The only benefit would be exposing Israel's crimes on a limited media and military scope, whose impact will wane with time or until there is another war.

This article is an edited translation from the Arabic Edition.


It may seem that the international judicial scene as far as genocide and war crimes committed against Palestinian civilians by Israel in occupied Palestine is hopeless. Not quite so as for the first time the Palestinian resistance has arrested Israelis at the scene of crime .
What I am about to propose may sound difficult to achieve but not impossible ! As instead of Palestinians waiting in vein to have International Criminal Court based in the Hague to admit their claims they can import International Law to their own national court rooms .
This proposal is completely compliant with International law .and will ensure a relative measure of justice for the Palestinians victims of Israeli War Crimes . It will however require a strong political will and determination by Palestinians .
How, one may ask ? It is achieved by trying any Israeli combatant arrested whilst committing a war crime against Palestinian civilians on Palestinian soil before a Palestinian War Crimes Tribunal [PWCT] set for that purpose in Palestine , such Tribunal will be in public and apply International law and adopt transparent International standards of fair trial with full access to legal representations contrary to the way Israel deals with Palestinian political prisoners .
As the Palestinian resistance have captured at least one Israeli prisoner in the ongoing Israeli assault on Gaza there is no legal excuse not to initiate such International trials immediately .
Israeli war criminals should be tried and not used in prisoners exchange deals to release Palestinian freedom fighters whom Israel illegally arrests and detain without trial . They should be released unconditionally and forthwith.

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