By Ron Kampeas
WASHINGTON (JTA) — On Jan. 16, the International Criminal Court prosecutor, Fatou Bensouda, launched a “preliminary examination into the situation in Palestine.”
Here is a review of what that means based on interviews with experts on international law and statements by the ICC and Israeli and U.S. officials.
Has the International Criminal Court launched a criminal case against Israel or Israeli officials?
On Jan. 16, Bensouda said she was opening a “preliminary examination” into events that transpired in the period following June 13, 2014.
Bensouda, who is Gambian, did not specify that she would examine military actions, but the period encompasses last summer’s war in the Gaza Strip as well as Israel’s actions in the West Bank following the kidnap and murder of three Israeli teenagers on June 12.
Preliminary examinations are not criminal investigations, though they may consider evidence and solicit testimony. Instead, they establish whether there is probable cause to conduct a full criminal investigation and whether the court has jurisdiction. They may be followed by criminal investigations of individuals. Cases involving states are the province of the International Court of Justice. Both courts are based in The Hague, Netherlands.
Preliminary examinations may be closed without charges filed. Indeed, the court shut down an earlier preliminary examination arising out of the 2009 Gaza War, determining that it did not have jurisdiction, in part because Palestine at the time did not have statehood status.
Preliminary examinations can go on for years. In addition to the one just launched, eight others are underway that have neither been closed nor advanced to the criminal investigation stage. Some date back to 2006.
One hurdle for the Palestinians seems to have been cleared in this case, however. In her announcement, Bensouda said that the U.N. General Assembly recognition of Palestine in 2012 as a non-member observer state, together with the Palestinian accession to the ICC treaty, made crimes that may have been committed on its territory eligible for consideration by the court.
Does the launching of the preliminary examination trigger U.S. sanctions against the Palestinians or the United Nations?
Not yet against the Palestinians and not at all against the United Nations.
The ICC is independent of the United Nations, so American laws triggering sanctions against U.N. agencies for accepting Palestinian statehood status would not apply. Like Israel, the United States never acceded to the 1998 treaty that led to the court’s establishment and has little influence over it.
However, the secretary-general of the United Nations, Ban Ki-Moon, does hold some sway over the court by determining whether applicants qualify to accede to the ICC. In Palestine’s case, he gave the green light on Jan. 6. It’s not clear whether U.S. officials have conveyed to Ban any unhappiness over his role in the matter.
Regarding the Palestinians, language inserted at the last minute into an omnibus spending bill passed in the final days of the last Congress says funding cuts would be triggered if “the Palestinians initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”
The wording suggests that the approximately $500 million in annual U.S. assistance to the Palestinians is safe for now — first because the proceedings may be years away from a “judicially authorized investigation,” and second because the prosecutor, not the Palestinians, appears to have initiated the proceedings.
Congress seems ready to close those loopholes, however. Sen. Rand Paul (R-Ky.) introduced legislation on the first day of the new Congress that would sever assistance to the Palestinian Authority unless it withdraws from the ICC. Other lawmakers, including Rep. Ileana Ros-Lehtinen (R-Fla.), have hinted that they are considering similar legislation.
The American Israel Public Affairs Committee has yet to back any specific legislation, but an official for the lobby told JTA that it believes that P.A. funding should be “immediately suspended” because of its ICC moves.
Eugene Kontorovich, a professor at the Northwestern University School of Law and an expert on international law who has blogged about the issue for the Washington Post, says there may be legal room to pull U.S. funding for the Palestinians. Palestinian acceptance of the ICC’s jurisdiction in Palestinian areas after June 13, 2014, which set the stage for the preliminary examination, might in itself be construed as “initiating” an investigation, he told JTA.
The Obama administration does not accept that reading. Its officials are resisting calls from Congress to cut funding to the Palestinians, in part because they see Palestinian security cooperation with Israel — which is funded in part by the United States — as a critical element in keeping the region quiet.
What is Israel’s position on the ICC examination?
Israel rejects the jurisdiction of the court. It has cut off a monthly $125 million tax transfer to the Palestinians, and Foreign Minister Avigdor Liberman this week is lobbying countries that support the ICC to end funding, including Germany, Canada, Australia and Japan. Experts say his effort is likely to be unsuccessful, particularly with Germany, which invested heavily in the court’s establishment following the atrocities committed in the 1990 Yugoslav wars.
What is the Obama administration’s position on the ICC examination?
The Obama administration strongly rejects ICC jurisdiction in the Israeli-Palestinian dispute. “As we have said repeatedly, we do not believe that Palestine is a state and therefore we do not believe that it is eligible to join the ICC,” the State Department said in a Jan. 16 statement. “It is a tragic irony that Israel, which has withstood thousands of terrorist rockets fired at its civilians and its neighborhoods, is now being scrutinized by the ICC.”
However, administration officials also oppose cutting funding to the Palestinians, and the State Department has criticized Israel for withholding the tax transfers.
Are Palestinian officials also potentially liable for criminal investigation?
Yes. Bensouda’s brief is open-ended. The “situation in Palestine” it describes could encompass rockets launched from Gaza into civilian areas of Israel.
What risk do Israeli officials face?
Should the examination advance to a criminal investigation, Israeli officials could face warrants for their arrest. This could limit their travel, although in its short existence, a de facto hierarchy of ICC-wanted officials has emerged. Charged officials with few allies in the international community — for instance, Congolese rebel leaders — have been arrested. Charged officials who do have allies — most prominently, much of the Sudanese leadership — have traveled with impunity, as friendly nations have refused to act on warrants.