Joining the Hague court will have implications for Palestinians, too

By Robbie Sabel, December 6, 2012
Mahmoud Abbas (Photo: Flash 90)

Mahmoud Abbas (Photo: Flash 90)

One of the reasons Israel objected so vehemently to the premature UN recognition of Palestine as a state was the apprehension that the International Criminal Court at The Hague (ICC) would, subsequently, accede to a request by the “state of Palestine” to join the Court. Once accepted as a member state, the Palestinians might then attempt to have Israeli officials indicted.

The Court has jurisdiction to try offences committed in the territory of a state that has accepted jurisdiction, even if the alleged perpetrators are nationals of a state that has not accepted the jurisdiction of the Court.

The Palestinian argument could be that transferring population to an occupied territory, “directly or indirectly”, is listed in the statute of the Court as a grave war crime. Therefore, any Israeli involved, even indirectly, in transferring Israeli nationals to “occupied Palestinian territory”, has committed a war crime that is subject to the jurisdiction of the Court. Palestinians could further argue that Israel obviously would not try its officials for encouraging settlement activity, hence the ICC should have jurisdiction.

In reality, this scenario is highly unlikely. Should “Palestine” join the Court it would mean that any Palestinian national who, in future, commits a war crime anywhere in the world, could be subject to the jurisdiction of the Court. Since presumably “Palestine” includes Gaza, it would mean that all Hamas personnel involved in the future in firing rockets at Israeli civilians would be subject to the jurisdiction of the Court. It can be assumed that the Palestinians will hesitate before undertaking such a step. It is
interesting to note in this context that, with the exception of Jordan, none of Israel’s neighbouring Arab states has accepted the jurisdiction of the Court.

Furthermore, it is highly unlikely that the Court or the Prosecutor of the Court would want the Court to be involved in what is clearly a political dispute. The preamble to the constitution of the Court refers to “serious crimes of concern to the international community as whole” and “unimaginable atrocities that deeply shock the conscience of humanity”.

The question of the Israeli settlements is clearly not of this nature; it is a political issue of where the boundary will be between Israel and a future Palestinian state. During negotiations, even the Palestinians concede that some settlements will be on the Israeli side of a future boundary. The location of such a boundary is hardly the sort of issue that should be decided by an international criminal court.

Underlying Israel’s apprehension is its bitter experience with international legal bodies. The judges of international courts are elected by majority voting of states. In such votes, the Arab and Muslim blocs wield enormous political clout. Despite Israel’s legal expertise, no Israeli judge has ever been elected to an international tribunal. Unhappily, Israel and Israelis cannot be certain international courts will do justice.

Ambassador Robbie Sabel is a former legal adviser to the Israeli Foreign Ministry

Last updated: 4:16pm, December 6 2012