I have long taken the position that Israel shouldn’t be looking for a commitment from Abbas not to go to the ICC for the reasons set out in this article. Ted Belman
On November 29th 2012, Palestine was voted by the United Nations General Assembly to be a non-member observer state. Although seen to be a largely symbolic vote, this decision provoked huge hopes, fears and discussions because the “media” thought that Palestine could now take Israel to the International Criminal Court and prosecute them. This gained so much traction that the international community and Abu Mazen started to use the threat of the ICC as their main hope to force Israel to make new concessions. However, upon further inspection into how the ICC operates, it becomes clear that Israel has little to worry about.
In 2002, the International Criminal Court was created with the hope of fighting crimes against humanity. The court only has jurisdiction over the states that are parties to its statute (countries that volunteered to be in it), which at this point in time, is 122 countries. For the most part, countries that are unlikely to be involved in conflict have joined the court, while those likely to be involved in conflict have not.
Israel for obvious reasons is not a party to the ICC. However, Palestine has attempted to give jurisdiction of their territory to the ICC with the hope of being able to prosecute Israel. After operation Cast Lead in 2009, Palestine tried to involve the ICC but had their request denied because they were not considered a state. Palestine believes that now, after the UNGA vote that the ICC would accept their case.
I will detail some of the hurdles that the Palestinians could face if they attempted to appeal to the ICC to prosecute Israel. The first is whether the PLO could even have their case heard. The ICC only hears cases if the Security Council refers them to it, or if the state is a party to the court. Nobody knows if the ICC will accept Palestine as a state even with the general assembly vote and without this, the ICC cannot hear a case regarding Israel. In 2009, the first time Palestine attempted to take a case to the court, it took three entire years before the ICC made a ruling on whether to hear the case or not. Whatever the court decides, it will take a significant amount of time before anything actually happens.
There is also the issue of politics. The ICC presently has low credibility and is seeking to increase its membership and presence in international affairs. If the ICC were to accept this case, it would have far reaching implications outside of Israel’s borders. Every state currently in a land dispute, or with soldiers on a foreign soil would feel threatened. The decision to hear this case would not only alienate Israel, but many other important countries in the world.