An ineffective push for statehood: why the International Criminal Court wasn’t Palestinians’ best choice

Opinion by Mina Shah
April 7, 2015, 8:48 p.m.

Last week, Palestinians officially joined the International Criminal Court (ICC) in order to demonstrate a serious commitment to seeking the acquisition of statehood.  Doing so recognizes the legitimacy of the ICC, and thus shows the world that the Palestinians who signed on are deeply invested in maintaining standards set post-World War II to increase the safety and stability in countries around the world.

This is perhaps an overly optimistic choice for these Palestinians, and one that is not as obviously productive toward an ultimate independence as it may seem. Though the ICC is an international governing body, it has little real agency in maintaining a state of relative peace and justice across the globe. The organization operates questionably–not only is their method of determining who and what situations to investigate unfair, but ultimate rulings are not nearly as fair as they could be. The ICC functions in a way that seems to do nothing more than to reinforce the directionality of power dynamics and relationships between nations of different geographic locations. Joining the ICC will only further status quo power differentials between nations.

The ICC’s guiding and empowering document is the Rome Statute, which was established in 1998 to set the jurisdiction of the ICC and outline procedures and mechanisms by which the court is supposed to operate. The language in the document sounds promising, but the reality is that the ICC has little real power. There are a limited number of ways in which to bring cases to the court, and only parties to the court (those nations which have both signed and ratified the statute) can be investigated. This means that countries that have signed the document but have not ratified it cannot be investigated for war crimes or crimes against humanity through this tribunal. Interestingly, though not too surprisingly, both the U.S. and Russia, powerful countries that like to exert dominance and could easily be tried for war crimes, are on the Security Council, signatories to the Rome Statute, and non-parties to the ICC.

The court is structured such that there are three main ways to bring a case to the court’s attention. The states that are party to the court can bring forth a case,  prosecutor can initiate an investigation, or the U.N. Security Council can refer a situation. This last mechanism is by far the most problematic, because only states that are a party to the court can be investigated. This gives members (especially permanent ones) on the Security Council who are signatories to but not parties of the court the ability to investigate parties without fear of investigation themselves. Thus, Palestine would be able to be prosecuted, but would not be able to bring cases against non-parties, like Israel. It also puts parties at an unfair disadvantage to the states that can bring cases but are themselves immune from prosecution, like the U.S. and Russia.

The ICC has been criticized for the fact that all of the countries and persons under investigation, and any of those that have ever been under investigation, are African. In addition to that, none of the countries under full or preliminary investigation are of the “first world.” This makes it look like the court is singling out African countries for examination, to the point where it has been accused of persecution. This unequal distribution of investigation reinforces the power that neo-colonizers have over former colonies, since these are a series of instances where “the West” is making a normative statement about how things should be, exerting dominance over the global south. It implies that “the West” knows what good looks like and is trying to teach the global south their more advanced, more civilized ways. Thus, it is likely that it won’t be too long before Palestine, as not part of the “West,” will soon face the same sort of discrimination.

The fact that Palestine is choosing to use this avenue as a means to gain legitimacy toward statehood reinforces the structure of the court and the power differentials it supports. By choosing this particular way to show a serious effort toward statehood, the Palestinians who have joined are working towards becoming a legitimate state in this framework that privileges ideas and power of the global north over the rest of the world.

It may be more useful for Palestine, in its attempt to gain global legitimacy and form an independent state, to examine the processes of other non-state territories and colonies in their journeys to statehood. Once they’ve done this, they can synthesize their findings and tailor those findings to the particular situation in Palestine, transforming them into action items. It’s progress that they’re trying to work at this diplomatically, but an avenue as controversial and nebulous as the ICC isn’t the most effective way to do so.

Contact Mina Shah at minashah ‘at’ 

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