The International Criminal Court in the Hague has opened a preliminary examination into the situation in the occupied West Bank and Gaza Strip.
Amnesty International said this step “could eventually lead to an ICC investigation into crimes committed by all sides in Israel and the [occupied territories] and break the culture of impunity that has perpetuated a cycle of war crimes and crimes against humanity.”
A press release today from the ICC said the examination would cover the period since 13 June 2014, which would include Israel’s biggest assault in the occupied West Bank in a decade and its summer attack on Gaza that killed more than 2,200 people.
However, this is only a very small step in what would still be a very long and obstacle-filled road to justice for Palestinian victims of Israeli rights violations.
The ICC said that the Office of the Prosecutor opens a preliminary examination “as a matter of policy and practice” when it receives a valid declaration from a UN member state that it has acceeded to the Rome Statute, the treaty that created the court.
This indicates that the preliminary examination was not taken at the discretion of chief prosecutor Fatou Bensouda, but rather as a matter of routine.
On 2 January, UN Secretary General Ban Ki-moon accepted as valid documents from the Palestinian Authority that the “State of Palestine” had signed on to the Rome Statute.
According to the ICC, “a preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed” with a full investigation.
The press release also notes that there are “no timelines provided in the Rome Statute for a decision on a preliminary examination.”
Based on the preliminary examination, the prosecutor has discretion to decide whether to proceed or whether to “decline to initiate an investigation.”
Amnesty International, among others, has already collected a large amount of evidence indicating that Israel committed war crimes in Gaza last summer.
Although the ICC is supposed to be independent, Bensouda is likely to face intense pressure not to proceed with an investigation into Israel’s actions, especially from the US administration of President Barack Obama, which has worked tenaciously to guarantee impunity for Israel.
The US State Department issued a statement that even for the Obama administration was remarkable in its sheer hostility to the notion of justice for Palestinians. It asserted that the ICC’s preliminary examination was “counterproductive to the cause of peace.”
“As we have said repeatedly, we do not believe that Palestine is a state and therefore we do not believe that it is eligible to join the ICC,” the statement said.
“It is a tragic irony that Israel, which has withstood thousands of terrorist rockets fired at its civilians and its neighborhoods, is now being scrutinized by the ICC,” the State Department added, making no mention of the fact that Israel dropped roughly the equivalent of an atomic bomb on Gaza last summer killing and injuring thousands of people and leaving more than 100,000 homeless.
Israel’s foreign minister Avigdor Lieberman called for the ICC to be dismantled altogether.
The court already suffers from a credibility problem. It has long been criticized for disproportionately focusing on Africa while alleged crimes committed in other countries have been ignored.
In an analysis for The Electronic Intifada last August, international law expert Michael Kearney said that Palestine would present the court with a series of major challenges.
“The political pressure against the Office of the Prosecutor is likely to be immense,” Kearney noted, “and the task of asserting and retaining prosecutorial independence is something to be monitored very closely.”
Nonetheless, Kearney sees potential that Palestinians could eventually use the court to bring prosecutions not only for specific incidents such as those which may have occurred during the attack on Gaza, but also for state-level policies such as Israel’s settlements in the occupied West Bank and the crime of apartheid.
Another danger is that the PA will continue to use ICC membership as a tactical bargaining chip and will halt or withdraw proceedings in exchange for a resumption of the moribund “peace process.”
But given the total impunity Israeli politicians and military leaders have enjoyed to conquer, destroy, settle and kill at will, many Palestinians are likely to welcome any development, however modest, that could eventually help them find justice.