Omphalos

ICC Team Begins Israel and Palestine Trip

By David Bosco
Thursday, October 6, 2016, 3:16 PM

A team from the ICC prosecutor's office (OTP) has begun a trip to Israel and the West Bank. Israel recently decided to allow the visit, something that had been in doubt previously (I've written here about the likely motives behind Israel's offer of limited cooperation). Invconveniently for Israel, the ICC delegation is arriving just as Israeli settlement activity is being harshly criticized, including by the United States. The ICC's initial probe will encompass settlement activity in the West Bank, which might be deemed a war crime.

Meanwhile, some Palestinian officials have used the ICC visit to frame Palestine as a key test of the young court: 

“Palestine is a serious test to the ICC and I don’t think they can afford to fail it,” said Ammar Hijazi, a Palestinian foreign ministry official. “If they fail Palestine’s test, the whole ICC and the whole international criminal system will collapse,” he told journalists.

Whatever the merits of that assessment, the ICC is playing down expectations that anything dramatic or definitive will emerge from this trip. In its statement, the OTP makes clear that it will not be conducting investigative work during its time in Jerusalem, Tel Aviv, and Ramallah:

In accordance with its usual practice at this stage of its work, the delegation will not engage in evidence collection in relation to any alleged crimes; neither will the delegation undertake site visits, or assess the adequacy of the respective legal systems to deal with crimes that fall within ICC jurisdiction.

So what exactly will the ICC be doing? The statement suggests an innocuous visit in which its officials inform Israeli and Palestinian officials and publics about the preliminary examination process and dispel misperceptions. But the prosecutor does seem to leave open (barely) the possibility that officials will scrutinize Israel's internal investigations of its conduct in Gaza (the critical "complementarity" question). We know that the ICC will not be "assessing the adequacy of the respective legal systems," but that language likely doesn't preclude examining ongoing investigations and determining whether they involve the same alleged crimes that most interest the prosecutor. The OTP classifies the Palestine examination as being in Phase 2, during which it considers whether the court has subject-matter jurisdiction. According to its update last year, "the Office may gather available information on relevant national proceedings at this stage of analysis." What better time than during a visit?