The Palestinian Authority's Handling of the ICC Inquiry

By David Bosco
Friday, June 9, 2017, 3:30 PM

Several news outlets are reporting on conciliatory signals from the Palestinian Authority regarding negotiations with Israel. One key gesture is a temporary deemphasis on pursuing Israel at the International Criminal Court (ICC). As Bloomberg reports:

While U.S. Middle East envoy Jason Greenblatt and other White House officials try to get the peace process moving again, Palestinians will ease up on efforts to pressure Israel through foreign bodies such as the International Criminal Court at The Hague.

“Like the settlement issue, we’re not giving up anything but we’re not going out of our way to activate things at this time,” [Mohammad] Mustafa said.

Palestine joined the ICC in January 2015 and has consistely expressed support for a court investigation of alleged Israeli crimes, including settlement activity in the West Bank (which could be a war crime under the Rome Statute). Given that past support, these statements are notable.

But Palestinian officials appear to be indulging in an assumption that they can manage the ICC process as they would any other diplomatic tool—activating the ICC inquiry when it suits them and sidelining it when not convenient. This kind of language suggests that the Palestinians are in the position of plaintiffs pursuing a civil suit rather than one (important) party in a criminal investigation led by an independent official.

The reality is that the ICC’s preliminary examination of the situation in Palestine is now in the hands of chief prosecutor Fatou Bensouda and her staff, not either of the parties. The prosecutor’s office is reviewing a wealth of material (including some already provided by the Palestinians) as it determines whether to launch a full investigation. It’s very unlikely that these statements will have any meaningful impact on that review, which promises to be slow and deliberate.

To say this is not to deny that a lasting Palestinian change of heart about the ICC—particularly as part of a new diplomatic initiative—would not affect the prosecutor’s approach. A full investigation would likely require substantial logistical and evidentiary cooperation from the Palestinians. If that were not forthcoming, an investigation would become even more challenging from a practical standpoint.

As important, the prosecutor has to take into account the political environment surrounding a potential investigation. There are already formidable headwinds to a full investigation, including the likelihood that it would provoke a direct confrontation with the Israelis and dramatically worsen the court’s decent working relationship with the United States. It’s hard to see the prosecutor braving those pressures when even the Palestinians don’t want her involved.

But we are a very long way from evidence that the Palestinians have really changed course. The kind of tactical statements that the Palestinians are making now are much more noise than signal—and they’ll almost certainly be treated as such in The Hague.