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An ineffective push for statehood: why the International Criminal Court wasn’t Palestinians’ best choice

Last week, Palestinians officially joined the International Criminal Court (ICC) in order to demonstrate a serious commitment to seeking the acquisition of statehood.  Doing so recognizes the legitimacy of the ICC, and thus shows the world that the Palestinians who signed on are deeply invested in maintaining standards set post-World War II to increase the safety and stability in countries around the world.

This is perhaps an overly optimistic choice for these Palestinians, and one that is not as obviously productive toward an ultimate independence as it may seem. Though the ICC is an international governing body, it has little real agency in maintaining a state of relative peace and justice across the globe. The organization operates questionably–not only is their method of determining who and what situations to investigate unfair, but ultimate rulings are not nearly as fair as they could be. The ICC functions in a way that seems to do nothing more than to reinforce the directionality of power dynamics and relationships between nations of different geographic locations. Joining the ICC will only further status quo power differentials between nations.

The ICC’s guiding and empowering document is the Rome Statute, which was established in 1998 to set the jurisdiction of the ICC and outline procedures and mechanisms by which the court is supposed to operate. The language in the document sounds promising, but the reality is that the ICC has little real power. There are a limited number of ways in which to bring cases to the court, and only parties to the court (those nations which have both signed and ratified the statute) can be investigated. This means that countries that have signed the document but have not ratified it cannot be investigated for war crimes or crimes against humanity through this tribunal. Interestingly, though not too surprisingly, both the U.S. and Russia, powerful countries that like to exert dominance and could easily be tried for war crimes, are on the Security Council, signatories to the Rome Statute, and non-parties to the ICC.

The court is structured such that there are three main ways to bring a case to the court’s attention. The states that are party to the court can bring forth a case,  prosecutor can initiate an investigation, or the U.N. Security Council can refer a situation. This last mechanism is by far the most problematic, because only states that are a party to the court can be investigated. This gives members (especially permanent ones) on the Security Council who are signatories to but not parties of the court the ability to investigate parties without fear of investigation themselves. Thus, Palestine would be able to be prosecuted, but would not be able to bring cases against non-parties, like Israel. It also puts parties at an unfair disadvantage to the states that can bring cases but are themselves immune from prosecution, like the U.S. and Russia.

The ICC has been criticized for the fact that all of the countries and persons under investigation, and any of those that have ever been under investigation, are African. In addition to that, none of the countries under full or preliminary investigation are of the “first world.” This makes it look like the court is singling out African countries for examination, to the point where it has been accused of persecution. This unequal distribution of investigation reinforces the power that neo-colonizers have over former colonies, since these are a series of instances where “the West” is making a normative statement about how things should be, exerting dominance over the global south. It implies that “the West” knows what good looks like and is trying to teach the global south their more advanced, more civilized ways. Thus, it is likely that it won’t be too long before Palestine, as not part of the “West,” will soon face the same sort of discrimination.

The fact that Palestine is choosing to use this avenue as a means to gain legitimacy toward statehood reinforces the structure of the court and the power differentials it supports. By choosing this particular way to show a serious effort toward statehood, the Palestinians who have joined are working towards becoming a legitimate state in this framework that privileges ideas and power of the global north over the rest of the world.

It may be more useful for Palestine, in its attempt to gain global legitimacy and form an independent state, to examine the processes of other non-state territories and colonies in their journeys to statehood. Once they’ve done this, they can synthesize their findings and tailor those findings to the particular situation in Palestine, transforming them into action items. It’s progress that they’re trying to work at this diplomatically, but an avenue as controversial and nebulous as the ICC isn’t the most effective way to do so.

Contact Mina Shah at minashah ‘at’ stanford.edu. 

  • Dan

    Just to clear up a few inaccuracies – the ICC hasn’t opened any investigations outside of Africa, but the prosecutor currently has preliminary examinations open in several countries around the world. This includes Iraq, where alleged British crimes are being looked at (the Court has jurisdiction because the UK is a state party), as well as Afghanistan, where the prosecutor is reportedly looking into alleged US crimes.

    Also, the Security Council can refer ANY state to the ICC for investigation, even if it isn’t a state party. This is how the ICC came to be involved in both Libya and Darfur.

    And just because Israel isn’t a member of the ICC doesn’t mean that it’s citizens are necessarily beyond the Court’s reach. The ICC now has jurisdiction over alleged crimes committed on Palestinian territory, regardless of who perpetrated them. So the Court does have prosecution over alleged Israeli crimes committed in Palestine.

    123 states, including major European powers, have joined the ICC. Palestine’s decision to do so shows a commitment to rule of law and fighting impunity for the world’s worst crimes, and could herald accountability in a conflict that has long seen none.

  • Guest

    A Manhattan jury recently found the Palestinian Authority and the Palestine Liberation Organization liable for their role in knowingly supporting six terrorist attacks in Israel between 2002 and 2004 in which Americans were killed and injured.

    The damages are to be $655.5 million, under a special terrorism law that provides for tripling the $218.5 million awarded by the jury in Federal District Court.

    I’d say that palestinians who today are still engaging in terrorism, starting wars by kidnapping Israeli civilians and soldiers, lobbing rockets at Israeli cities, building tunnels under Israeli kibbutzes, shooting rockets from civilian areas, using their own citizens as human shields when Israel retaliates, steeping their own children in lies and hatred, should be careful about taking Israel to the ICC where it would be shown that Israel did more than any other nation at war to protect the civilians of their enemy.

    For more on the NY jury verdict story from the NY Times: http://tinyurl.com/qf2jpbc

  • Eliyahu100

    Dan is one of those self-righteous hypocrites who like to bash Israel while hiding behind an allegedly innocent group of Arabs, now fashionably called “palestinians”, although there never was a “Palestinian people” in all history. Such a “people” is a post-1948 psychological warfare invention, much like the Marlboro Man was an invention of advertising, a related field of psychological warfare.

  • Eliyahu100

    “Palestine’s decision to do so shows a commitment to rule of law.”
    Dan really goes off into the Twilight zone with this claim. In fact, the Palestinian Authority, like the PLO before it, violates laws and agreements whenever it sees such violation as advantageous. For instance, it violates the laws of war by specifically targeting Jewish women and children.
    Another problem with the Mina Shah article and Dan’s comment is that they believe that the PA really wants to become a state. They could have had a state through negotiations with Israel. But they want to destroy Israel, not make peace with it in order to have a state. Furthermore, the PLO charter which still guides the PA, is a pan-Arabist document. Ultimately the PA/PLO want a great pan-Arab state of which “palestine” will be merely a region. On this read especially the first article of the PLO charter.

  • this is classic academic drivel in the Saïdian style. the Palestinians didn’t go to the court to prove their commitment to responsible nation statehood – there are a thousand ways they cd do that much more effectively, like transparency in financial dealings – but to prosecute Israel (ie to continue to behave as a belligerent).

    as for the alleged “bias” of the ICC in only going after African nations, it’s because their behavior is infinitely more appalling (eg Sudan). the third world is what it is for many “good” reasons – eg dictators, corruption, no rule of law, ruthless genocidal policies – and that’s why a court like the ICC goes after third world countries. this article’s thesis (embraced by such luminaries as Schabas) is the equivalent of saying, “enuf of going after serial murderers, what about picking on someone else for a change?”

    if this is the kind of thinking an institution like stanford produces, then the politicization and dumbing down of academia has reached epic proportions. no wonder there’s an education bubble.

  • Guest

    Dan thank you for clearing up some of the inaccuracies in this article. I find it pathetic that people write about the ICC as if they are international criminal law experts when in reality they barely understand how the court works. Part of journalism is actually investigating what you write about, shame on you Mina Shah.

  • That’s funny. The document widely seen as conferring legitimacy on Israel is the Balfour Declaration in 1917. It plainly says that in the even of a Jewish home, the rights of indigenous Palestinians in Palestine must be respected.

    Israel was created in Palestine. There were Palestinians there. Your racist bigoted comment has nothing to do with reality, it only exposes the shallowness of your thinking to the public.

  • Eric11210

    First off, the Balfour Declaration never says a single word about a so called Palestinian people. Moreover, it does NOT grant your fellow Muslims any political rights. Only civil rights, which they already enjoy as citizens of the State of Israel. Your constant desperation to lie is really boring Jihadist.

  • Pierre

    As a complement to Dan’s apt remarks, there is another inaccuracy in the text: it talks of “all the countries and persons under investigation”, but the ICC has no jurisdiction over countries. Article 25(1) of the Rome Statute provides that “The Court shall have jurisdiction over natural persons pursuant to this Statute”.