How ICC membership could revive Palestinian statehood at the UN

Could a shift in U.S.-Israeli relations lay the groundwork for bolder legal and diplomatic moves in the international arena against Israel and the occupation?

By Lolita Brayman

The representative of Palestine speaks to the UN Security Council. (UN Photo/Loey Felipe)
The representative of Palestine speaks to the UN Security Council during the previous attempt to pass a resolution advancing the two-state solution. (UN Photo/Loey Felipe)

Prime Minister Benjamin Netanyahu’s election success is being portrayed by some as a victory for the international aspects of the Palestinian cause. For months, Palestinians have been trying to leverage Europe’s frustration with Israeli actions and now the United States might be having second thoughts about wielding its almighty UN Security Council veto.

There is a global consensus for a two-state solution today. So when Netanyahu publicly abandoned his commitment to negotiating the creation of a Palestinian state—the basis of more than 20 years of U.S. peace efforts—Washington began hinting that there might be a change of diplomatic course. On Monday, Obama’s Chief of Staff Denis McDonough told J-Street conference participants that, “an occupation that has lasted for almost 50 years must end. Israeli cannot maintain military control of another people indefinitely.” The terminology certainly signals a shift, but is harsher rhetoric really a sign that the U.S. is intentionally opening a breach in the U.S.-Israel relationship?

The Palestinians will officially join the International Criminal Court (ICC) on April 1, at which time they will be able to refer actions by Israel in the West Bank and Gaza to the ex-parte tribunal. Court Prosecutor Fatou Bensouda will then have the ability to decide whether there is cause to launch a full inquiry — a step beyond the preliminary investigation she announced on January 16 following the State of Palestine’s request to accede to the Rome Statute.

Alongside whatever proceedings may take place in the Hauge, the international response to Netanyahu’s fourth term may also play out in New York: the “lawfare” battle could be indefinitely delayed by the UN Security Council. Last week, a Foreign Policy report indicated that the U.S. “might be inclined to support a UN Security Council resolution backing a two-state solution as an alternative to the Palestinian effort to hold Israel accountable at the ICC.”

The ICC and international law as leverage

The United Nations Security Council, December 30, 2014. (UN Photo/Loey Felipe)
The United Nations Security Council, December 30, 2014. (UN Photo/Loey Felipe)

Article 16 of the Rome Statute gives the Security Council the power to defer any ICC investigation for up to a year, which can be renewed once a year. In order to exercise that authority, the UNSC would need to demonstrate that further ICC involvement would impede rather than facilitate diplomatic progress. The Council has never used its Article 16 power but the political stakes in Palestine are much higher than in any previous situation, wrote David Bosco.

An act of this magnitude would hinge on whether an ICC investigation would really be an obstacle to the peace process. But Netanyahu effectively put a nail in that coffin with his election campaign. The U.S. — and much of the world — is now asking “what peace process?”

Within this context, the U.S. could initiate an Article 16 deferral and use the ICC as leverage to convince other Security Council members to support a resolution for a final status agreement via negotiations within a specified timeframe. Such a justice-for-peace trade-off could have many advantages but any P5 member can veto the deferral:  Russia might very well block any U.S. initiative to boost its own international, strong-arm reputation, while Britain and France—both signatories to the Rome Statute—might consider supporting deferral in order to protect the vulnerable and young ICC from a potentially volatile intermingling of politics and international criminal law.

The Palestinians are likely to support a UN resolution backed by the U.S. considering last year, their own resolution was only one Security Council vote short of passing. Further, if President Mahmoud Abbas can exchange an ICC investigation for concessions toward conclusive negotiations, it would be in his favor to do so; since an ICC investigation into Israel could cut-off U.S. aid to Palestine — even more likely to be triggered if any investigatory action is initiated after April 1.

Israel prepares for ‘lawfare’ battle

Construction of illegal settlement units at 'Elkana,' on the lands of the West Bank village of Masha, near Salfit, July 06, 2013. (Photo: Ahmad Al-Bazz/
Construction of illegal settlement units at ‘Elkana,’ on the lands of the West Bank village of Masha, near Salfit, July 06, 2013. (Photo: Ahmad Al-Bazz/

Israel is expected to object to an official ICC investigation, but the strength of its defense depends on the inquiry’s focus. If it were limited to alleged crimes committed in the recent Gaza hostilities, the ICC would have to defer to Israel’s own investigations of itself—recently on the upswing. On March 19, the IDF announced that its military police opened six additional criminal investigations into incidents during Operation Protective Edge, including an attack on an UNRWA school in Jabalya, where 20 people were killed on July 30, 2014. Other investigations were already opened into incidents including the killing of four children by Israel Air Force fire on a Gaza beach and the strike on another UNRWA school in Beit Hanoun, which killed 15 Palestinians.

On the other hand, if the forthcoming ICC investigation relates to settlement building in occupied territories, Israel would have a much more difficult time of deflecting the investigation and possible prosecution of its officials. Here, Israel has no complementarity defense since its only argument is that the settlements are legal—not enough to defer an investigation in any court.

Even if Israel approves of an UN resolution, Security Council deferrals of ICC probes are not permanent. The UNSC could continue to use the ICC as leverage and hold the threat of prosecutions over Israel’s head in a year if there is no movement with negotiations.

But everything centers on how serious Washington is on destabilizing a long-standing policy with its Middle East ally — actions speak louder than words. The U.S. stood alongside Israel at the United Nations Human Rights Council’s annual debate on Monday, where EU and Arab delegations called on Israel to permit a UN human rights investigator to visit Gaza. Neither state party attended the debate, pursuant to a 2013 agreement. The silence was planned beforehand and not related to any existing tensions. What it does show is that so far, despite the rhetoric, the U.S. isn’t making any hasty moves.

Lolita Brayman is a lawyer and former editor at with an M.A. in conflict resolution and mediation from Tel Aviv University. Follow her on Twitter at @lolzlita.