How the Security Council could unplug an ICC Palestine investigation

By David Bosco

More than a month after Palestine moved to join the International Criminal Court, the issue has now mostly faded from the headlines. More quietly, however, key actors are jostling for position. On January 16, the ICC prosecutor announced that she was opening a “preliminary examination” of the situation in Palestine. On January 29, more than seventy U.S. Senators urged President Obama to consider cutting off aid to Palestine as punishment for its ICC gambit. Meanwhile, the Palestinian Authority has reportedly created a special committee to handle its interactions with the court and to coordinate complaints against Israel.

For the moment, though,  one actor that could dramatically alter the justice landscape has not stirred–the United Nations Security Council. The Rome Statute gives the Council the power to defer an ICC investigation for up to a year, and the Council can renew that deferral indefinitely. As far as I can discern, there is no discussion at this point in diplomatic circles about Security Council action. And that makes sense. Everyone is struggling to figure out what the Palestinian move means and what steps the prosecutor will take now. Until the situation is clarified, there’s little reason for Council diplomats to stir.

That will likely change. There’s a good chance the prosecutor will decide to open a full investigation of the Palestine situation. And if she does, the question of what role international justice has in the long-running conflict will move to the front burner. The prosecutor will almost certainly take her time, but I would be very surprised if her office dragged out the preliminary examination nearly as long as it has in Georgia, Afghanistan, or Colombia.

What crimes will the prosecutor focus on? Two categories will likely receive the most sustained attention: the indiscriminate rocket attacks by Hamas during the recent conflict and Israel’s settlements policy in the West Bank. In both cases, there is good evidence that the parties committed multiple crimes under the Rome Statute. Indiscriminate attacks directed at population centers are clearly war crimes, and there is a strong case that Israel’s settlements meet the definition of prohibited transfers of population to an occupied territory. For neither of these categories is there evidence that relevant national authorities have undertaken genuine investigations. By contrast, Israel can argue that it is conducting internal investigations of its conduct during the recent Gaza War. While the ICC might ultimately decide that these investigations are inadequate, they should at least buy Israel some time.

If the prosecutor does signal that she’s moving toward a full investigation, the Council’s members have the means and might have the motive to pull Palestine from the court’s docket, at least for a while. Key Council members, including but not limited to the United States, believe that an ICC investigation would impede rather than facilitate diplomatic progress. The Council has never used its Article 16 power to defer a specific court investigation, but the political stakes in Palestine are much higher than in any previous situation. Below, I consider several issues that might arise if the Council considers a deferral.

Would an ICC investigation really be an obstacle to the peace process? When Palestine sought to join the court, a number of voices proclaimed that the move represented the effective end of negotiations. Israel, the argument goes, simply won’t negotiate with the threat of international prosecutions hanging over the head of its commanders and political leaders. The United States government appears convinced by this logic. It denounced the Palestinian move as “escalatory” and warned that it “badly damages the atmosphere with the very people with whom [the Palestinians] ultimately need to make peace.” But other Council members might be tempted to retort: what peace process? It will be hard for some members to believe that the political climate between Israel and Palestine can get much worse than it is. Influential human rights and justice activists, for their part, have argued that ICC action will actually promote the peace process by creating disincentives for further violence and settlement expansions. “If anything,” a Human Rights Watch official argued, “the ICC’s involvement could help deter war crimes that today fuel animosity and undermine the trust needed for a peace accord.” If it wants Council action to sideline the ICC, Washington will have to convince other members that an ICC investigation actually threatens the prospect of future negotiations.

What will Israel prefer? Israel has no vote in the Council but even in this moment of deep U.S.-Israel tension, its views will help shape U.S. strategy. A deferral might appear to be a no-brainer for Israel, which is deeply concerned about an ICC investigation (and particularly about high-level prosecutions related to settlements). But a deferral would be a double-edged sword. It would remove the immediate pressure of an investigation but also render Israel dependent on annual Council reprieves to extend that deferral. Given this unappealing prospect, Israeli leaders might prefer to call the prosecutor’s bluff, calculating either that she won’t pursue high-level indictments or that Israel can effectively discredit the ICC process and endure the diplomatic damage.

Would any P5 member veto a deferral? Even if Washington leads the charge for a deferral, it will of course need to convince the other four veto-wielding permanent members. As ICC members, Britain and France would find themselves in an awkward position. Neither government wants an ICC investigation, but both are  rhetorically committed to the court’s work and might hesitate before short-circuiting an investigation. Yet both governments have been open to the theoretical possibility of deferrals in other contexts (including in Uganda and Sudan), and they might well calculate that removing the explosive issue of Palestine from the court’s docket would actually be a service to the fragile young institution.

Russia and China would have a quite different set of incentives. They are not court members and have no interest in protecting the institution, which could well threaten them or their allies in the future. Both vocally supported unsuccessful deferral attempts in other contexts, including Kenya. But they would also be reluctant to help extricate the United States and Israel from the awkward position in which they find themselves. The United States has criticized both governments for shielding Syria and North Korea from international justice; Moscow and Beijing are doubtless enjoying the spectacle of the United States and its close ally squirming under ICC scrutiny.

What would Washington give to get a deferral? In all four cases, then, Washington might need to offer something to the other P5 members to get an ICC deferral. What concessions would the United States be willing to make? The most likely scenario might be a package resolution that combines an ICC deferral with some elements of the draft European resolution proposed in December. That resolution reportedly would have set a two-year deadline for the completion of final-status negotiations. In keeping with its longstanding policy of keeping the Council away from the Mideast peace process, the United States did not support that draft. But the ICC factor could change the diplomatic equation: now Washington may be in the position of needing Council action, and it might just be willing to give some ground to get it.