How the ICC Could Alter the Security Council's Palestine Role

By David Bosco
Wednesday, November 11, 2015, 11:01 AM

New Zealand, an elected member of the UN Security Council, attempted recently to prod the Council into action in the Middle East. As violence in East Jerusalem and the West Bank has spiked, the Council has remained on the sidelines. Frustrated by the body's marginalization, New Zealand's diplomats last month circulated a draft resolution calling on the parties to end all provocations, resume negotiations, and hold accountable all those responsible for violence. The draft won a few compliments but appears to have sparked little serious discussion, in large part because the United States chose not to engage. At Foreign Policy, Colum Lynch reported that Washington has ended its brief flirtation with supporting a Council role in the conflict and returned to its longstanding position that the Council can do little to help:

[E]ven as violence surges in the Middle East, the United States is sticking to its traditional stance that the U.N. should butt out of the Israeli-Palestinian peace process. Secretary of State John Kerry, meanwhile, is resuming what top American diplomats have done for generations: engage both sides in frequent trips to the region and try to prod Israeli and Palestinian leaders into direct talks for a peace deal that few believe will be achieved anytime soon.

In recent weeks, U.N.-based diplomats and outside observers say Washington has shown little interest in enlisting the U.N. Security Council to press the parties to return to talks that abruptly fell apart in April 2014. The longtime U.S. policy toward the Middle East, they say, has not changed.

New Zealand's draft resolution did reference one issue that just might change the existing dynamic: a potential International Criminal Court (ICC) investigation into crimes committed in the occupied territories. The draft I've seen called on both parties to refrain from referring the situation to the ICC, presumably on the assumption that such a move would aggravate the already inflamed environment. (New Zealand's discouragement of an ICC referral earned it a predictable slap on the wrist from Amnesty International.) The draft's admonition not to involve the ICC was addressed to both parties but it is obviously directed at Palestine, which has joined the court, handed over information to the prosecutor, and broadly supported an investigation (although still without formally referring the situation).

But a formal referral from Palestine is not necessary for the court to launch an investigation. The prosecutor has already initiated a preliminary examination and could seek a full investigation at any time using her proprio motu powers. A full investigation, which might eventually lead to indictments of Israelis (and Palestinians), would shake up Council diplomacy. Perhaps most important, the United States might suddenly find itself desiring Council action; specifically, Washington might want to freeze the ICC investigation, which Article 16 of the Rome Statute permits the Council to do.

Getting a deferral out of the Council won't be simple. While many Council members appear skeptical of an ICC role, states like Britain and France would be hesitant to formally sideline a court they support. In exchange for doing so, they would likely want to package an ICC deferral with other measures, including a condemnation of certain Israeli actions and pressure on both parties to resume negotiations. Ill-starred though it was, New Zealand's draft could foreshadow an eventual compromise resolution.