Palestine in the Hague: justice, geopolitics, and the International Criminal Court.

Bosco, David

Palestine's request that the International Criminal Court investigate crimes allegedly committed by Israel on its territory presents the court with a major investigative and institutional challenge. To this point, the ICC has generally avoided situations where major powers strongly oppose court involvement. The prosecution's cautious selection of situations has in turn allowed for an accommodation between skeptical major powers and the court. An investigation in Palestine, which the United States and other major powers would oppose, could unsettle that fragile truce. This article considers how the situation in Palestine came before the court and analyzes several options available to the ICC prosecutor. Keywords: international criminal court, Palestine, international law.

**********

On 1 April 2015, Palestine joined the International Criminal Court. The 123rd ICC member state, Palestine immediately became its most controversial. Israel's Foreign Ministry described its accession as a "political, hypocritical, and cynical maneuver." (1) The United States expressed regret about the court's involvement, calling any ICC scrutiny of Israel a "tragic irony." (2) For their part, Palestinian officials insisted that they seek "justice, not vengeance," and major human rights groups hailed the move as a step toward potential accountability for all parties.

Palestine had signaled its desire to join the court long in advance, and International Criminal Court (ICC) accession forms part of a broad strategy of employing international organizations and law to solidify Palestine's global standing and increase diplomatic pressure on Israel. Palestine has joined a range of international and regional organizations, including the UN Educational, Scientific and Cultural Organization (UNESCO) and the Inter-Parliamentary Union, and signed on to major international treaties, including the Geneva Conventions. But Palestinian leaders have seen the ICC, which could threaten senior Israeli officials with prosecution, as a particularly potent tool for altering the diplomatic dynamic. "It changes everything. It changes the balance of power," one senior Palestinian official insists. (3)

Palestine's ICC membership adds an additional level of complexity to Middle East diplomacy. But the court's involvement is unlikely to be a decisive factor in the long-standing conflict. Recent experience provides scant evidence that international justice mechanisms--even those that enjoy strong political and financial support--can alter the dynamics of deep-rooted conflicts. Large-scale ethnic cleansing occurred in Kosovo even after leaders in Serbia witnessed high-level international prosecutions in neighboring Bosnia. Conflict and systematic abuses have continued in Sudan and Central African Republic despite active ICC investigations and prosecutions. Whatever its other virtues, international justice has not yet proven an effective conflict management tool. (4)

For that reason, Palestine may be more consequential for international justice than international justice is for Palestine. Palestine's accession marks a daunting challenge for the ICC that could become a watershed moment in its development. An investigation in Palestine would be the most politically explosive that the young court has undertaken. It could involve prosecutions of nonmember state nationals and place the court's prosecutor in direct and open opposition to the United States in a way that has not happened since the court began operating in July 2002. The two ICC prosecutors--Luis Moreno-Ocampo (2003-2012) and Fatou Bensouda (2012-present)--have demonstrated marked caution regarding the situations they select to investigate. The office of the prosecutor (OTP) has thus far stayed away from conflicts involving major powers. And unless it has had the UN Security Council's backing, the OTP has avoided investigations targeting the nationals of nonmember states. That caution has led even skeptical countries to accept the court as part of the international architecture. A Palestine investigation has the potential to unsettle that fragile accommodation.

More broadly, how the OTP approaches the Palestine situation could be an important test of the outer limits of international adjudication. International and regional courts have proliferated in the past several decades, and the ICC represents perhaps the most ambitious attempt to subject sensitive military and security matters to international law and hold powerful individuals accountable for violations. Whether that experiment is viable remains very much uncertain. Palestine will test it in the context of an intractable conflict that directly implicates the interests of several powerful states.

This article proceeds in several stages. First, I examine the manner in which the Palestine situation came before the court. Then, I describe and briefly analyze the categories of crimes that the ICC prosecutor might choose to investigate. I address first the recent conflict in Gaza and then turn to the question of Israeli settlements and home destruction in the West Bank. Next, I place the court's Palestine inquiry into the broader context of the ICC's institutional development and examine how the OTP has decided which situations to investigate. I focus in particular on the concept of gravity and how it may be applied. I then consider several distinct ways in which the ICC prosecutor may address the Palestine question and discuss the implications of each.

The Winding Road to The Hague

In a sense, Palestine was on the court's agenda even before it opened its doors in the summer of 2002. The possibility of ICC investigations related to that conflict was on the minds of many diplomats involved in the negotiations that produced the Rome Statute. In part because they feared that the court might be used against them, the United States and Israel were among only a handful of states to vote against the final statute at the 1998 negotiating conference. Closely coordinating their moves, both states signed the Rome Statute in December 2000, but signaled that they would not ratify absent changes to the court's statute. (5) As signatories, they participated in follow-on negotiations that helped define the crimes that the court could prosecute and made special efforts to limit Israeli exposure. When the George W. Bush administration "unsigned" the Rome Statute in 2002, Israel followed suit a few months later. Most other states in the Middle East have also kept their distance from the court. Until Palestine's move, Jordan and Tunisia were the only Arab court members.

When he took over as prosecutor in June 2003, Moreno-Ocampo turned his attention to several African crises. These included the long-running violence in eastern Democratic Republic of Congo, the conflict between government forces and the Lord's Resistance Army in northern Uganda, and violence in Central African Republic. Palestine did not appear on the court's docket until early 2009. The catalyst was Israel's 2008-2009 campaign in the Gaza Strip, dubbed Operation Cast Lead. Designed to reduce Hamas's ability to launch rockets and artillery at Israel, the action resulted in the deaths of hundreds of Palestinians, including many civilians. Palestinian officials and some outside observers argued that Israeli forces had committed war crimes. In January 2009, Palestine's justice minister flew to The Hague and sought an ICC investigation. In so doing, Palestine relied on a provision of the Rome Statute that allows nonmember states to give the court jurisdiction on their territory. (6)

The Palestinian submission led to more than three years of deliberations within the prosecutor's office about how to proceed. The prosecutor received opinions from international experts and scholars, primarily related to jurisdictional questions. More informally, the prosecutor heard concerns from diplomats about a possible ICC role in the Middle East. In The Hague, he met quietly with several Israeli officials, apparently the first extended contact between Israel and the prosecutor's office. The United States said little publicly about Palestine's bid, but several US officials expressed concern to the prosecutor about an ICC role in the conflict. (7) Other states involved in the peace process, including Britain and France, showed no enthusiasm for ICC intervention. (8)

In April 2012, Moreno-Ocampo decided against pursuing an investigation. He noted that Palestine's statehood was uncertain and that "it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a state." (9) However, the prosecutor did not foreclose the possibility of a future investigation if Palestine's status became clearer. That clarification came just six months later, when the UN General Assembly voted overwhelmingly to alter Palestine's status in the organization. Formerly an observer "entity," Palestine secured recognition as a "non-member observer state." (10) The new ICC prosecutor, Fatou Bensouda, declared that the General Assembly had resolved the question of Palestine's status. Yet she chose not to activate Palestine's earlier jurisdictional declaration, instead indicating that Palestine would need to submit a new one. "The ball is now in the court of Palestine," she reportedly said. (11)

Bensouda's interpretation put the matter back into the political arena, and Palestinian officials temporized. For almost two years, they dangled the possibility of reverting to the court without taking the steps required to do so. As they hedged, other actors attempted to get the court involved in aspects of the conflict. In 2013, the government of Comoros asked the court to investigate the 2010 Israeli raid on an aid flotilla headed for Gaza that resulted in the deaths of four individuals. The prosecutor opened a preliminary examination, but concluded in 2014 that the incident did not rise to the level of gravity required for a full investigation. (12) That decision highlighted the importance of broader ICC jurisdiction for a full investigation of the conflict.

Palestine's long indecision regarding whether to provide that jurisdiction ended soon after the prosecutor's Comoros decision and in the wake of the 2014 Gaza conflict. On 31 December 2014 Palestinian officials filed paperwork to join the ICC. They submitted a separate declaration providing the court with retroactive jurisdiction back to 13 June 2014. (13) Palestine's move finally allowed the ICC prosecutor to begin examining possible crimes on Palestinian territory, and Bensouda promptly announced a "preliminary examination." Her move was standard procedure for the prosecutor's office, which assesses all potential investigations to examine whether relevant crimes have been committed and whether national judicial systems are investigating those crimes. (If national courts are genuinely investigating, the doctrine of complementarity obliges the ICC to step aside.) In some cases, these preliminary examinations have been brief. When the Security Council referred the situation in Libya to the court in 2011, the prosecutor launched a full investigation in less than a week. Other preliminary examinations, including those in Afghanistan, Colombia, and Georgia, have moved at a glacial pace. (14)

Even with the ICC machinery in motion, it appears that political jockeying regarding the court's role in Palestine has continued. Notwithstanding its repeated public calls for a court investigation, Palestine has not taken the formal step of referring the situation on its territory to the court. While the court has the jurisdiction that it requires, a formal referral would confirm to the prosecutor that Palestine desires and will support a full investigation. It would also smooth the procedural path to a full investigation by removing the requirement of judicial approval. (15) Palestine's hesitation to take this logical next step could be the product of financial pressure. After Palestine joined the court, Israel withheld more than $100 million in tax revenue normally channeled to the Palestinian Authority. Israel eventually released most of the funds, but the episode illustrated the financial pressure that Israel could employ in the future. (16) Intra-Palestinian friction, in particular between the Palestine Liberation Organization (PLO) and Hamas, may also account for the apparent confusion. Finally, Palestinian leaders may see a formal referral as a valuable bargaining chip in political interactions with Israel and other involved states.

Lingering uncertainty about whether Palestine desires a full investigation only adds to the complexity of the situation confronting the ICC prosecutor. The Palestinians have quite clearly seen the ICC as an important point of leverage in their interactions with Israel. Whether they are willing to support a full investigation of potential crimes on their territory will now be tested. For the moment, the intentions of the Palestinian authorities will be a secondary question for the prosecutor, whose office is in the midst of assessing what crimes may have been committed and determining whether national court systems are adequately investigating them. It is possible to identify the likely focal points of this examination.

Adjudicating Gaza

The conflict in Gaza that lasted most of July and August 2014 will be a priority for the prosecutor. By providing retroactive jurisdiction, Palestine has allowed the court to consider all events on Palestinian territory after the outbreak of major fighting. (It is notable that Palestine's declaration excludes the 12 June kidnapping and killing of three Israeli youths that many Israelis saw as the trigger for the conflict.) The prosecutor will likely focus on several categories of possible crimes by Palestinians and Israelis.

On the Palestinian side, Hamas's rocket strikes toward Israel may be the clearest war crimes. Hamas operatives fired thousands of rockets toward Israeli cities and towns during the conflict. Israel's defense system (popularly known as Iron Dome) shot down a large percentage of the rockets headed toward populated areas, and only a few missiles produced casualties. In all, the Israeli authorities recorded six deaths and several dozen injuries from rocket strikes. Gaza civilians may have also suffered from the rockets; it appears that several malfunctioned and landed in Gaza. (17) Hamas claimed responsibility for the rocket attacks on Israeli cities and towns and described them as retaliation for Israeli abuses. Importantly, Hamas did not identify specific military targets. According to Human Rights Watch, "The unguided rockets launched by Gaza armed groups are inherently indiscriminate and incapable of being targeted at possible military targets in or near Israeli population centers." (18)

Neither are rocket attacks the only crimes that Hamas and its supporters may have committed. Human rights groups have reported on the alleged execution of protesters and accused collaborators in Gaza during the conflict. Israeli officials and outside observers also alleged that Hamas employed civilians as shields and deliberately placed military equipment in civilian facilities, including hospitals and schools run by the UN Relief and Works Agency (UNRWA). The United Nations itself condemned Palestinian fighters on several occasions for storing weapons on UN premises. (19) The Rome Statute includes as a war crime "utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations." (20)

The ICC's scrutiny of Israeli conduct in Gaza would likely center on questions of proportionality and whether Israeli forces used adequate rules of engagement. While the precise civilian toll in Gaza is debated, it is clear that the operation resulted in the deaths of at least several hundred civilians. The UN estimated that more than 1,400 civilians were killed. Several discrete incidents attracted particular attention and condemnation. A 16 July 2014 attack on a Gaza beach killed several children, and images of their deaths were broadcast around the world. On 30 July, Israeli artillery hit a UNRWA facility sheltering a large number of children, an attack that claimed the lives of several dozen civilians and wounded hundreds more. (21)

In most situations, Israel will be able to demonstrate that it was targeting Hamas operatives and fighters. Assuming there was an appropriate target, the legal question becomes whether the danger to civilians was excessive and whether Israeli forces took adequate precautions to avoid them. The most relevant Rome Statute provision prohibits "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects ... which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." (22) Determining whether relevant commanders launched reckless or disproportionate attacks will involve not only detailed assessments of the information available to those commanders at the time of the attack, but also judgments about the expected military advantage of given strikes.

International and Israeli human rights groups have gathered information that casts doubt on whether Israeli commanders achieved an appropriate balance. A leading human rights organization documented eight Israeli attacks on multifamily dwellings that allegedly produced large numbers of civilian casualties, including dozens of children. (23) An Israeli rights group collected testimony from dozens of Israel Defense Forces (IDF) veterans that described lax rules of engagement and an anti-Palestinian culture that undermined effective civilian protection measures. According to the group's report, "Many of the soldiers testified that the rules of engagement they were provided with before the ground incursion into Gaza were unclear and lenient." (24)

The Israeli authorities--both military and civilian--have conducted their own reviews of Gaza operations. In December 2014, the IDF's military advocate general initiated an inquiry into multiple incidents of potential misconduct in Gaza. That inquiry considered in detail more than a dozen incidents, including the beach attack, an attack on a UNRWA school, the killing of several ambulance drivers, the abuse of a detainee, and multiple cases of alleged looting. The IDF announced in June 2015 that it would not prosecute the Gaza beach strike, which it termed a mistake rather than a crime, and several other publicized incidents. Reviews of other specific cases remain pending, however. (25) In addition to investigating specific incidents, the Israeli government has provided its own factual and legal interpretation of the conflict, which emphasizes Hamas's attempts to use the civilian population as shields and Israel's extensive military precautions, including leaflets, warning phone calls, and the tactic of "roof-knocking." (26)

Deconstructing West Bank Settlements

For all the attention paid to the fighting in Gaza, the most dangerous issue for Israeli officials lies elsewhere. Israel's policy of supporting settlements in the occupied West Bank could place senior Israeli officials in greater legal jeopardy than its conduct in Gaza. Israel's settlements in territory occupied during the 1967 war have been widely described as illegal, including by the UN Security Council and the International Court of Justice. A commission of inquiry appointed by the UN Human Rights Council described settlements as potential war crimes. (27) UN offices have also reported on the destruction of Palestinian homes in the West Bank and resulting displacement of more than a thousand Palestinians. (28) Yet international courts have not directly addressed the issue of criminal responsibility for these policies. The Rome Statute lists as a war crime "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies." (29) The ICC's preliminary examination will likely be the first international judicial inquiry into whether the Israeli promotion of settlements in the Occupied Territories meets this definition.

The prosecutor will have to settle several daunting legal questions before making settlements part of a formal investigation. Most fundamental, Israel denies that the West Bank qualifies legally as occupied territory. Israel's longstanding position is that because the West Bank's own status was unclear when Israeli forces captured it in 1967, it cannot be considered occupied. Certain scholars have argued that the 1995 Oslo II Accords could also be an obstacle because that agreement provides that Israel has criminal jurisdiction over any crimes committed by Israelis in the West Bank. (30) The prosecutor also would have to decide that Israel's incentive structure for settlers constitutes the active transfer of population rather than the voluntary movement of individuals. Even if the prosecutor finds that these issues pose no obstacle, there remains the factual question of how much settlement activity has occurred during the relatively limited period when the court has jurisdiction.

These questions notwithstanding, the settlements issue is unnerving for Israel because decisionmaking on that policy goes to the top of the Israeli government. For most conduct in Gaza, field commanders who made the relevant targeting decisions would receive the greatest scrutiny. By contrast, any investigation of settlement activity would likely involve senior government officials, including cabinet ministers and even the prime minister. Moreover, Israel has no complementarity defense on settlements; it cannot plausibly claim that it has investigated its own conduct. The Israeli Supreme Court has addressed a host of issues related to Israeli conduct in the Occupied Territories, but it has avoided the fundamental legality of settlements and has never decided whether settlement activity creates criminal responsibility. (31) The failure of Israel's legal system to consider these issues could smooth the way for ICC scrutiny.

Relative Gravity

For the prosecutor, the fundamental question will become whether these distinct categories of possible crimes--the conduct of all parties in Gaza and settlement activity and home destructions by Israel in the West Bank--combine to create a situation that merits a full investigation. The Rome Statute makes clear that the ICC has no obligation to prosecute all criminal activity over which it has jurisdiction. It is a court with limited resources designed for exceptionally serious situations. The OTP has emphasized on multiple occasions its resource limitations and the importance of shepherding them carefully. The prosecutor's latest strategy document noted with concern the increased demands on the office and the strain on existing resources. (32) Underlining that concern, the prosecutor recently informed the Security Council that the office was freezing its inquiry in Sudan to concentrate scarce resources on other pressing investigations. (33)

For the prosecutor, the situation in Palestine cannot be viewed in isolation; it must be set against other situations the prosecutor has investigated and is considering. Even in this context, Palestine appears to be a plausible candidate for a full investigation. The number of civilian deaths during the Gaza conflict, for example, is similar to or greater than the totals when the court launched investigations in Kenya, Mali, Cote d'Ivoire, and Central African Republic, although not nearly as high as the toll in the Democratic Republic of Congo and Sudan. Settlement activities themselves are not generally deadly but, depending on the court's analysis, they could be considered serious violations of international law that provoke political instability and violence. More broadly, the conflict in Palestine clearly has had a negative impact beyond the borders of the states directly involved and is of acute concern to the international community.

A great deal, then, will rest on the prosecutor's assessment of the seriousness of the crimes that may have been committed in Palestine. Specifically, the Rome Statute instructs the court to consider whether a situation is of "sufficient gravity" to merit an investigation. (34) For all its importance, that concept remains only loosely defined. The prosecutor's office has said that gravity refers not only to the number of crimes, but also to their type and impact. But neither the prosecutor nor the ICC judges have provided clear guidelines on how to apply a gravity test, and past decisions have left only a few markers. The prosecutor's office closed preliminary examinations related to the Israeli flotilla raid, Iraq, South Korea, and Venezuela in part because it found that the situations were not grave enough. (35) In each of those situations, the number of serious crimes over which the court would have jurisdiction appeared to be several dozen at most. It is clear, therefore, that situations involving only a handful of crimes--even serious crimes such as torture and extrajudicial killing--will not merit the court's attention. The situation in Palestine clearly surpasses that low bar, but whether it also clears the threshold for an investigation will be a judgment call for the prosecutor.

Broad prosecutorial discretion of this sort creates ample room for non legal considerations. These factors will likely include the feasibility of an investigation, the prosecutor's perception of political support for an ICC role, and the likelihood of being able to enforce any eventual arrest warrants. Even broader institutional concerns, including maintaining relationships with powerful states whose support is helpful in a range of situations, may also enter the prosecutor's calculus. As discussed below, there is substantial evidence that political and institutional considerations have already impacted the prosecutor's discretion. This is hardly surprising. The ICC is a fragile and new court that requires significant state support to operate effectively. As the prosecutor considers what would be its most controversial investigation, it is therefore important to understand the political environment in which the court operates and the path it has chosen through that environment thus far.

The Power Politics of Justice

States have not easily given international judicial bodies the right to issue binding rulings regarding their conduct, particularly conduct related to sensitive security issues. Almost all international adjudication methods require some form of state consent. For example, a state must agree (either by a blanket provision of jurisdiction, a treaty, or some form of special agreement) before the International Court of Justice (ICJ) can rule on a dispute to which it is a party. Only about a third of states--and few of the world's most powerful--have given the ICJ blanket jurisdiction, which leaves it powerless to address many important legal disputes. In some specialized areas, states have been more willing to let judges decide their fate. All members of the World Trade Organization, for example, have allowed its adjudication system to handle certain trade-related disputes. But international trade agreements explicitly exclude most sensitive security issues.

For sovereignty-conscious states, criminal justice at the international level is particularly invasive, given its focus on war crimes and other crimes normally committed during conflict or political unrest. Until the creation of the ICC, the application of international justice had been largely under the control of powerful states. The triumphant Allied powers designed and oversaw the Nuremberg and Tokyo trials after World War II. Those trials scrutinized only the behavior of the defeated Axis powers and excluded possible crimes by Allied forces, including the area bombing of German and Japanese cities. Once those tribunals had done their work, moreover, the Allies and other powerful states saw little reason to continue the experiment in international criminal justice. Proposals to create a permanent war crimes tribunal were viewed coldly in Washington, London, and Moscow.

For almost fifty years, international criminal justice languished and only the end of the Cold War reanimated the project. When international justice reemerged, however, it remained broadly under major power control. Using its extensive powers under the UN Charter, the Security Council in 1993 created a tribunal to investigate crimes in the former Yugoslavia and, the next year, in Rwanda. These tribunals had specific mandates and focused almost exclusively on crimes by citizens of the former Yugoslav states and Rwanda. In theory, those tribunals could exercise jurisdiction over the nationals of other states (including Council members), but that possibility appeared remote at the time that the tribunals were created. After the 1999 Kosovo conflict, the Yugoslav tribunal briefly considered the conduct of the NATO air campaign, but concluded that there was not enough evidence to pursue a full investigation for war crimes. (36)

The ICC represented a much more expansive form of international justice than its forerunners. Its jurisdictional rules mean that it can scrutinize the behavior of all manner of states, including the most powerful and their allies. Specifically, the court has jurisdiction to investigate crimes committed on the territory of or by the nationals of any member state. That jurisdictional arrangement was narrower than some states had hoped. At the Rome negotiations, several dozen states supported a court with universal jurisdiction over relevant crimes. Yet the final jurisdictional arrangement allows the court to prosecute nationals of nonmember states if they are suspected of committing crimes on the territory of an ICC member. The court's ability to reach the nationals of states that have not joined the court or otherwise consented to its jurisdiction was one of the principal US objections to the Rome Statute. US officials have regularly described this feature of the court as a threat to US sovereignty.

Accentuating the potential threat to national sovereignty, the ICC is designed to pursue even the most powerful individuals within these states. The Rome Statute explicitly rules out immunity for heads of state and other senior officials. The ICC prosecutor has announced a policy of pursuing "those most responsible" for criminal conduct, and early investigations have targeted the high-ranking leaders of relevant militia groups and governments, including sitting presidents of Sudan and Kenya. (37)

Yet the court's record during its almost decade and a half in operation also demonstrates that the prosecutor has been cautious about which situations to investigate. In particular, the prosecutor has been wary of investigations that might entangle it with the nationals of nonmember states, particularly major powers. For example, the court has broad jurisdiction over the situation in Afghanistan, which is a court member. Yet the prosecutor has still not launched a full investigation there. The prosecutor's reluctance to investigate is notable, given the high level of civilian casualties and the abundant evidence of large-scale war crimes. The Western role in Afghanistan and, in particular, the potential exposure of US nationals to prosecution there may be one element inducing caution. Indeed, the ICC has targeted individuals from a nonmember state only when it has the explicit backing of the Security Council, as it did in Sudan and Libya.

More broadly, the prosecutor's office has demonstrated a marked preference for investigating internal conflicts that the state itself has referred to the court, including those in the Democratic Republic of Congo, Uganda, Central African Republic, and Mali. The only situation that the prosecutor has investigated without either a territorial state or Security Council referral is Kenya. That experience has been a painful one for the court. Several cases collapsed, including the one against sitting president Uhuru Kenyatta. ICC officials complained frequently about the Kenyan government's interference with its investigation and failure to provide information essential to its investigation.

The prosecutors' broad geopolitical caution has yielded clear benefits. The United States has shifted from a policy of overt hostility to the court to one of broad support for most of its activities. Both the second George W. Bush administration and the Barack Obama administration made clear that the United States was willing to support discrete court activities and investigations. On several occasions, the United States helped to secure individuals indicted by the court. In March 2013, US diplomats in Rwanda facilitated the transfer to the court of Bosco Ntaganda, a Congolese warlord who had sought shelter at the US embassy in Rwanda. Many other key states and regional powers skeptical of the ICC have decided not to actively oppose its work. China and Russia acquiesced to the Security Council referral of Darfur and voted for the Libya referral. Egypt, India, Indonesia, Pakistan, Saudi Arabia, and Turkey have all declined to join the court, but they have not made opposing its work a diplomatic priority.

While the prosecutor's choices have reassured many key powers, they have discomfited other states, which complain that the court is accommodating itself to, rather than challenging, political realities. Criticism of the court has been particularly sharp in Africa. African leaders and commentators have pointed out that every full ICC investigation has occurred on the continent, and some have accused the court of neocolonialism and even racial bias. The African Union has opposed arrest warrants for sitting African heads of state and insisted that its member states--even those who are ICC members--have no obligation to arrest African leaders indicted by the court. Several African political figures have urged a large-scale withdrawal of African states from the ICC, although this push has not gained traction. Concern about the ICC's trajectory--and about informal major power control--has not been limited to Africa. Other commentators have noted with concern the court's choices and the lack of a clear rationale for them. The prosecutor therefore finds herself considering a highly controversial Palestine investigation at a moment when her office's earlier choices regarding situation selection have come under scrutiny. (38)

Ways Forward for the Court

The prosecutor's preliminary examination will almost certainly be a slow, deliberate process. The Gaza conflict presents a number of difficult evidentiary issues, including gathering reliable information about incidents in the midst of conflict. Settlement activity poses fewer evidentiary challenges, but a range of legal and jurisdictional questions that will require extended analysis. The level of cooperation from Palestine and Israel will influence the speed of the examination. While Bensouda can draw on a range of publicly available information, contributions from the parties themselves could greatly aid her deliberations. The level of cooperation from Palestine and Israel during the preliminary examination will also send important signals about what the prosecutor can expect if she does launch a lull investigation. Ultimately, the prosecutor will have three broad options. These options are considered below in terms of the institutional dynamics they may produce for the court.

Extend the Preliminary Examination

The prosecutor's first choice may be not to choose at all. Neither the Rome Statute nor the court's other rules require that a preliminary examination conclude within a prescribed period. As indicated, the court's examinations of Afghanistan, Colombia, and Georgia have all lasted for more than five years, so there is ample precedent for an inconclusive process. The ongoing Israeli investigations of its own conduct may provide the prosecutor another reason to delay a final decision. In some situations, notably in Colombia, the prosecutor has used a long-standing preliminary examination to evaluate evolving national proceedings. The prosecutor and other commentators have argued that national proceedings may move more expeditiously and fairly under the ICC prosecutor's watchful eye. (39) But it is also clear that states can use drawn-out and inconclusive national proceedings to keep the ICC at bay.

Given the complex diplomacy surrounding the Israel-Palestine conflict, the prosecutor may see a distinct advantage in extended delay. Without foreclosing the possibility of an investigation, the prosecutor could allow diplomatic processes to continue. This option may be particularly attractive if the prosecutor detects ambivalence from the Palestinians about a full investigation or if Israel makes clear (as is likely) that it will not permit ICC personnel to investigate in territory that it controls. Extended delay could also serve the court's interests in terms of managing its fragile relations with the United States.

Close the Examination

The prosecutor could decide that the allegations do not merit a full investigation. If Bensouda does so, it could be on the grounds that the alleged crimes in Palestine do not cross the court's gravity threshold. As indicated, the Palestine situation is broadly similar in terms of civilian deaths to several situations that the prosecutor has pursued. But if the prosecutor finds that she cannot pursue settlements cases, for example, or that Israel's own investigations of its conduct in Gaza require deference, she will be left with a much narrower range of potential criminal activity. A decision that such a circumscribed set of crimes is not of sufficient gravity to merit court attention would be controversial, but it would also be plausible from a legal perspective.

It is conceivable, but less likely, that the prosecutor will decide not to pursue an investigation because it would interfere excessively with the Middle East peace process. The Rome Statute allows the prosecutor to avoid an otherwise permissible investigation "in the interests of justice." (40) Some commentators have suggested that the prosecutor may therefore avoid investigations that would complicate ongoing diplomatic efforts or peace negotiations. However, the prosecutor's office has not yet employed the "interests of justice" provision to avoid an investigation, and its interpretations of the concept have been narrow. (41) "The broader matter of international peace and security is not the responsibility of the Prosecutor," the office has concluded. (42)

A decision not to investigate in Palestine would produce relief in major Western capitals, and particularly in Washington. At the same time, it would likely amplify the criticism that the court has avoided situations sensitive to powerful states and increase skepticism of the court in other parts of the world. For a court still establishing its legitimacy, any further diminution of its reputation is serious. Yet the impact on the court of this criticism would likely be diffuse rather than dramatic. Few Arab states belong to the court, so governments that might feel the greatest need to react against the court will have few levers to do so. The possibility of member states taking measures such as withholding dues or withdrawing from membership appears remote.

Open an Investigation

The alternative would be for Bensouda to announce her intention to conduct a full investigation. Doing so would enable the prosecutor to use all the resources of her office to begin developing evidence of crimes and identifying individuals to prosecute. ICC investigators would almost certainly seek access to investigate on Palestinian territory and to take testimony from witnesses and officials in Israel, Palestine, and in certain other countries. An investigation does not necessarily imply prosecutions, but, in almost all active investigations, the prosecutor has eventually brought charges.

Opening an investigation would be the most dramatic option for the court, and it would set in motion intense political maneuvering by all concerned states. The impact would likely be most dramatic in the United States, where Congress might consider new legislation limiting US support for and contact with the court. For all their discomfort with an ICC role, major European states will likely react with restraint; their strong rhetorical support for the court will temper any temptation to criticize the prosecutor.

It is important to note that the final decision on whether to commence an investigation might not rest with the prosecutor. Assuming that Palestine has not formally referred itself to the court by that time, the prosecutor would require approval from a three-judge panel to commence the investigation. The judges have previously considered prosecutor requests regarding Cote d'Ivoire (the government of which supported an investigation) and Kenya. On both occasions, they took several months to issue a final decision and scrutinized the evidence presented by the prosecutor. It is conceivable, if unlikely, that the prosecutor could seek a full investigation only to be rebuffed by the court's judges.

The Security Council could also restrain the prosecutor. The Rome Statute gives the Council the power to defer court investigations for up to a year. (43) That provision was included to give the Council a means of preventing investigations from interfering with sensitive peace processes. Because deferral resolutions can be renewed annually, the Council could, in theory, permanently block an ICC investigation. While the Council has never deferred an ongoing investigation, there may be some diplomatic support in this case. US opposition to ICC involvement is clear. More quietly, Britain and France have also expressed misgivings about an investigation. The positions of Russia and China are not clear, but neither one is enthusiastic about international justice and both pressed for deferrals regarding Sudan and Kenya. A Council resolution that packages an ICC deferral with measures related to the peace process could command significant support.

Yet there are significant obstacles to a Council deferral. As ICC members and vocal court supporters, Britain and France may find it difficult to support a resolution that sidelines the court. Nonpermanent Council members who support the ICC may also oppose a deferral and could prevent a resolution from acquiring the necessary nine votes. While skeptical of the ICC, Russia and China might prefer not to extricate the United States and Israel from the awkward position an ICC investigation would create. Moreover, Israel itself may not want a deferral, which would keep an ICC investigation hanging over its head indefinitely with future deferrals dependent on the shifting politics of the Council. Israel has no direct voice on the Council, but the United States and others would take its preferences seriously.

Conclusion

ICC critics of various stripes have often derided it as a political actor. During the court's early years, conservative US skeptics argued that the prosecutor would seek to target the United States and its allies. More recently, a number of African leaders and commentators have alleged that the court is little more than an instrument of neocolonialism. These charges have been overdrawn; there is little evidence that the prosecutor's office is animated by a political or ideological agenda, or that it has operated without regard to the relevant law and evidence.

Yet a unique mandate and limited resources require the prosecutor to exercise significant discretion about what situations to investigate and how to deploy investigative resources. Prosecutors in all judicial systems face these concerns, but they are particularly acute for the ICC, which relies almost entirely on states for access, information, diplomatic support, and resources to enforce its rulings. Within the boundaries of the law, the prosecutor's office has thus far used its wide discretion to avoid situations that might provoke political clashes with powerful states. How it handles the Palestine situation will be an important indication of whether that pattern will continue. It may also signal the prosecutor's assessment of how stable the court's place in the international architecture is--and how much controversy it can endure.

Notes

David Bosco is assistant professor at American University's School of International Service. He is author of Rough Justice: The International Criminal Court in a World of Power Politics (2014) and Five to Rule Them All: The UN Security Council and the Making of the Modern World (2009).

(1.) Israel Ministry of Foreign Affairs, "Palestinian Authority Joins the ICC--Israel's Response," 1 April 2015.

(2.) "Statement on ICC Prosecutor's Decision," US State Department, 16 January 2005.

(3.) William Booth, "Palestinians Join International Court to Fight Israel," Washington Post, 1 April 2015.

(4.) See Jack Snyder and Leslie Vinjamuri, "Trials and Errors: Principles and Pragmatism in Strategies of International Justice," International Security 28, no. 3 (2006): 5-44. For a recent assessment arguing that the ICC has had a modest deterrent effect, see Hyeran Jo and Beth A. Simmons, "Can the International Criminal Court Deter Atrocity?" 18 December 2014, Social Science Research Network, http://ssm.com/abstract=2552820 or http://dx.doi.org/10.2139/ssm.2552820.

(5.) For an account of US-Israeli coordination, see David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012), pp. 237-242.

(6.) Rome Statute, art. 12(3).

(7.) See David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New York: Oxford University Press, 2009), p. 162.

(8.) See, for example, Roger Boyes, "High Stakes for Peace in Middle East," The Times, 20 September 2011.

(9.) ICC Office of the Prosecutor, "Update on the Situation in Palestine," 3 April 2012.

(10.) UN General Assembly, Res. 67/19 (29 November 2012).

(11.) Bill Van Esveld, "Why Palestine Should Seek Justice at the International Criminal Court," Ma'an News Agency, 6 December 2013.

(12.) ICC Office of the Prosecutor, "Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report," 6 November 2014.

(13.) This addition was important because the court acquires jurisdiction sixty days after a member seeks admission to the court. See Rome Statute, art. 126(2). Absent Palestine's additional declaration, the court would only have jurisdiction over events in Palestine after 1 April 2015.

(14.) See ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015), November 2015.

(15.) When the prosecutor seeks to open a full investigation without a referral, a three-judge panel must approve the request. Rome Statute, art. 15(3).

(16.) See "Israel Freezes Palestinian Tax Funds over International Criminal Court Move," The Guardian, 3 January 2015.

(17.) ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015), para. 64.

(18.) Human Rights Watch, "Israel/Gaza: Indiscriminate Rocket Attacks," news release, 9 July 2014.

(19.) UN Relief and Works Agency, "UNRWA Condemns Placement of Rockets, for a Second Time, in One of Its Schools," 22 July 2014.

(20.) Rome Statute, art. 8(2)(b)(xxiii).

(21.) Human Rights Watch, Israel: An In-Depth Look at Gaza School Attacks (11 September 2014), https://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

(22.) Rome Statute, art. 8(2)(b)(iv).

(23.) Amnesty International, Families Under the Rubble: Israeli Attacks on Inhabited Homes (London: Amnesty International, 2014).

(24.) Breaking the Silence, This Is How We Fought in Gaza: Soldiers' Testimonies and Photographs from Operation "Protective Edge" (2014), http://www.breakingthe silence.org.il/pdf/ProtectiveEdge.pdf

(25.) "Gaza Beach Attack: Israel Struck Boys in Error," BBC News, 12 June 2015.

(26.) State of Israel, "The 2014 Gaza Conflict: Factual and Legal Aspects," 2015. Available at mfa.gov.ila.

(27.) See, for example, UN Security Council, Res. 446 (22 March 1979), par. 1; International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), par. 120; UN Human Rights Council, Report of the Independent International Fact-finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, including East Jerusalem (7 February 2013), par. 17.

(28.) ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015), par. 69.

(29.) Rome Statute, art. 8(2)(b)(viii).

(30.) Eugene Kontorovich, "Israel/Palestine--The ICC's Uncharted Territory," Journal of International Criminal Justice 11, no. 5 (2012): 979-999. For a response to Kontorovich's arguments, see Yael Ronen, "Israel, Palestine, and the ICC--Territory Uncharted but Not Unknown," Journal of International Criminal Justice 12, no. 1 (2014): 7-25.

(31.) See David Kretzmer, "The Law of Belligerent Occupation in the Supreme Court of Israel," International Review of the Red Cross 94, no. 885 (2012): 207-236.

(32.) ICC Office of the Prosecutor, Strategic Plan June 2012-2015, 11 October 2013.

(33.) "Security Council Inaction on Darfur Can Only Embolden Perpetrators--ICC Prosecutor," UN News Centre, 12 December 2014.

(34.) Rome Statute, art. 17(l)(d).

(35.) In Iraq, the prosecutor had jurisdiction over only the nationals of ICC member states, including Britain and Australia.

(36.) International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, http://www.icty.org /en/press/final-report-prosecutor-committee-established-review-nato-bombingcampaign against-federal.

(37.) For discussion of this policy of focusing on leaders, see ICC Office of the Prosecutor, "Paper on Some Policy Issues Before the Office of the Prosecutor," September 2003, pp. 6-7.

(38.) See Elizabeth Becker, "On World Court, U.S. Focus Shifts to Shielding Officials," New York Times, 1 September 2002, p. A4; "African Leaders Accuse ICC of 'Race Hunt,'" Al Jazeera, 28 May 2013, http://www.aljazeera.com/news/africa /2013/05/201352722331270466.html.

(39.) See ICC Office of the Prosecutor, "Prosecutorial Strategy, 2009-2012," 1 February 2010, para. 17.

(40.) Rome Statute, art. 53(2)(c).

(41.) For a discussion of competing interpretations of the "interests of justice," see Robert H. Mnookin, "Rethinking the Tension Between Peace and Justice," in Martha Minow, C. Cora True-Frost, and Alex Whiting, The First Global Prosecutor: Promise and Constraints (Ann Arbor: University of Michigan Press, 2015), pp. 69-96.

(42.) ICC Office of the Prosecutor, "Policy Paper on the Interests of Justice," September 2007.

(43.) Rome Statute, art. 16.