Opportunities and Challenges Seeking Accountability for War Crimes in Palestine under the ICC Regime

Abstract

The International Criminal Court (ICC) is currently conducting a preliminary examination of the situation in Palestine, involving allegations against Israeli authorities and military personnel as well as what the prosecutor refers to as “Palestinian armed groups”. Contextualizing the ICC’s activity in Palestine to other ICC interventions touching on the interests of major powers, this paper focuses on setting out the opportunities and challenges for advancing accountability for violations of international humanitarian law in Palestine. The paper makes three overarching arguments, namely: 1) Whereas the ICC has not yet prosecuted any citizen of a global or regional power, it is increasingly scrutinizing the actions of such powers and seems willing to proceed with investigating highly sensitive situations, including potentially Israeli settlement activities. 2) Even if the ICC’s intervention should not lead to criminal trials of those most responsible for violations in Palestine, the process creates increased scrutiny and awareness of (certain types of) violations in Palestine, has significant legitimacy costs for Israel, and may in the best event influence state policies and practices, including with respect to complementarity. 3) Although the ICC process should be seen as a legal one, it has significant ramifications for – and is often being instrumentalized by – political entities.