Palestine has now joined the International Criminal Court. What does it mean? Will Netanyahu be dragged into court in the Hague?  Or is it purely a propaganda move by the Palestinian Authority? We asked Peggy Mason, President of the Rideau Institute, and former Canadian Ambassador for disarmament. She was helped by legal research assistant Leigh McCarroll. Read more

Peggy, as President of the Rideau Institute, you keep a careful eye on international politics. Thanks for helping us understand this development. Here are a couple of things we are wondering about.

1. The Palestinians have now applied to join the ICC. What is the process for joining? Is this automatic, or might there be some opposition?

Palestine’s effort to join the ICC met with heavy opposition from Israel and the US, but now that the court has decided to open preliminary inquiries, no amount of opposition can impede the proceedings.UN Secretary-General Ban Ki-moon confirmed that Palestinian ICC membership came into effect on April 1, 2015. Preliminary inquiry by the Court’s chief prosecutor, Fatou Bensouda, will now begin.

2. Joining the ICC is seen as a potential threat to Israel. How so? What could be the potential legal consequences?

Since the ICC is predicated on individual accountability, it would not prosecute the State of Israel itself. The biggest concern for Israel would be the threat of Israeli officials being summoned to court at The Hague. It is of course unlikely that Israel would turn defendants over to the court, but Israel’s public image would be damaged. Israel could also avoid prosecution by the ICC if it tried alleged offenders (whether government officials or members of the IDF) in its own courts but this is highly unlikely.

The PA has submitted a request to the ICC to investigate last summer’s Operation Protective Edge which resulted in 72 Israeli deaths and 2,200 Palestinian deaths in Gaza. Prosecutor Bensouda has decided to formally investigate alleged war crimes committed by IDF commanders during this operation. Discussion of the events of Operation Protective Edge, particularly “Black Friday” in Rafah, in which at least 130 Palestinians were killed by the IDF, leaves the Israelis anxious about the potential legal consequences.

Of additional interest is the possibility of the ICC trying Israeli officials for the establishment of illegal settlements in the West Bank which could be considered a war crime under article 8 of the Statute of Rome.  In 1998, Israel voted against the adoption of the Rome Statute due to its recognition of the criminal nature of the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” (Art.8.2.b.vii). Palestine’s accession to the Rome Statute could therefore lead to Israeli accountability under Article 8.

3.Does joining the ICC open any Palestinians, (e.g. Hamas) to some charges against them?

Acts committed by PA officials and Hamas could also come under scrutiny. Although Hamas officially supports joining the ICC, firing rockets and mortars at Israeli towns and cities during the Gaza conflict could be investigated. As Bensouda affirmed, “We will be looking at alleged crimes committed by all sides of the conflict, in total independence and impartiality, and without fear or favour.” This means that there will be no immunity for Palestinians.

4. Is it true that Canada threatened the Palestinians over this issue?

Last year, Canadian Foreign Affairs Minister John Baird labeled Palestine’s decision a ‘huge mistake’. This reaction followed Baird’s March 2013 warning that Palestinians would face “consequences” from Canada if they were to accede to the ICC.

5. Why is Canada opposed to Palestine joining the ICC? Is this only because we want to protect Israel, or are there some potential Canadian interests at stake?

Canada’s former Ambassador to the UN, Paul Heinbecker argues that Canada’s opposition “vitiates Canadian interests in the promotion of international law and in the peaceful settlement of disputes.” Canada, along with the United States and Israel, denies Palestinian statehood even though according to the UN General Assembly, Palestine has the status of a Non-Member Observer State, a status reinforced by ICC member countries in 2014.

6. Could there be possible Israeli retaliation against Palestine?

In retaliation for applying to the ICC, Israel withheld funds from the Palestinian Authority. But it came under intense pressure from the USA and the European Union to transfer the funds, due to the extremely precarious economic conditions in the Palestinian Territories. It has now released the withheld funds.

Although many analysts believe that the ICC probe will increase tensions, Kenneth Roth, director of Human Rights Watch, believes that it might actually reduce Israeli retaliation against Palestine and will mean fewer offences from both sides. He explains: “So far, Hamas rocket attacks have been reduced. On Israel’s side, the typical Israeli reaction to a Palestinian step they dislike is to announce a massive settlement expansion. That didn’t happen this time, and I suggest that’s because settlement expansion is a war crime, subject to ICC jurisdiction.”

On the other hand, the Israeli newspaper, Haaretz has recently argued that the arrest and detention of Khalida Jarrar, a member of the Palestinian Legislative Council was in retaliation for her role as a member of the Palestinian team that monitors relations with the International Criminal Court in The Hague.