18 Jan Unfortunately, the ICC Doesn’t Work the Way Palestine Wants It To
According to this report in the Times of Israel, the Palestinian Authority would be willing to forego the ICC if Israel agreed to freeze its settlement activity:
RAMALLAH — A senior Palestinian official said Sunday that the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction.
The official told The Times of Israel that land seizures in occupied territory constituted a clear violation of international law. Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through Jordan and Egypt.
Unfortunately, the Rome Statute does not allow Palestine to pursue this kind of bargaining strategy. To begin with, now that Palestine has submitted an Article 12(3) declaration and ratified the Rome Statute, the Palestinian Authority (PA) has no say in what, if anything, the OTP decides to investigate. If the OTP wants to investigate only Hamas’s rocket attacks, it can. If it wants to investigate only Israeli and Palestinian crimes in Gaza, ignoring the settlements entirely, it can. If it wants to investigate the settlements but only after dealing with all of the crimes in Gaza, it can. The PA needs to understand that. If it wanted to ensure that the OTP investigated settlements, it needed to avoid ratifying the Rome Statute and submit an Article 12(3) declaration that was limited to the West Bank. I don’t think the OTP would have acted on such a declaration, but that route would have at least limited the OTP to accepting or rejecting the PA’s terms — the OTP would not have had jurisdiction to examine events in Gaza. Once Palestine ratified the Rome Statute, however, it lost even that limited control. Now investigative and prosecutorial decisions are in the hands of the OTP.
For similar reasons, the PA could not “withdraw… the appeal to the ICC” if Israel froze the settlements. The OTP could investigate and prosecute settlement-related activity even if the PA was completely opposed to it doing so. (Just as Israel’s opposition to the Court is legally irrelevant.) The PA could not even prevent the OTP from investigating settlement activity by immediately withdrawing from the ICC — its Article 12(3) declaration would still be in effect, and Palestine would remain a member of the Court for another year. At best such a dramatic act would simply force the OTP to make investigative decisions more quickly.
The ICC might have been an effective bargaining chip with Israel (and Israel’s client state, the US) before the PA submitted the Article 12(3) declaration and ratified the Rome Statute. Once the PA took those steps, though, its leverage ended. Now the fate of the investigation into the situation in Palestine lies solely in the hands of the OTP.