Palestine’s accession to the International Criminal Court (ICC) has important ramifications for the Israel-Palestine conflict. It serves to extend the reach of legality to this decades-old conflict. The conflict has seen flagrant violations of human rights and international laws of war by both sides but especially Israel. Some of these qualify to be defined as war crimes and crimes against humanity. Hitherto, these have gone unpunished. Palestine’s membership of the ICC could change that. It will formally become a member of the ICC on April 1 but already, in a sign of things to come, the ICC has opened a preliminary inquiry into possible war crimes in the Occupied Territories. This is the first formal step that could culminate in the ICC probing and bringing Israel to account for the atrocities it unleashes routinely on Palestinian civilians. Its killing of over 2,000 Palestinian civilians in the Gaza strip last year and its expansion of settlements in Palestinian land occupied since 1967 war could come under the scanner as would Hamas’ firing of rockets into Israel that killed Israelis. If taken to its logical conclusion, ICC intervention in the conflict has the potential to break the culture of impunity that has perpetuated the cycle of violence, atrocities and war crimes in the Israel-Palestine conflict. 

Israel and the US have accused Palestine of acting unilaterally in joining the ICC and claim this has undermined the negotiation process. This is hypocritical as it is Israel’s contempt for negotiations that has killed the process, leaving the Palestinians with no option but to go to international bodies for help. Hopes that the UN Security Council would put pressure on Israel came to nothing in late December when a resolution calling for an end to Israeli occupation of Palestinian land by 2017 failed to pass by one vote thanks to Washington’s manipulative role. American and Israeli obstructionism forced the Palestinians to turn to the ICC and now the two are crying foul.

The ball is now in the ICC’s court. The Office of the Prosecutor enjoys considerable discretion in deciding which cases to investigate and should the Prosecutor believe that a probe would deepen the conflict as it would obstruct the political process, she could decide against it. The ICC’s record is patchy; in its 12-year history it has prosecuted only Africans. Should it choose to avoid the political minefields of the Israel-Palestine conflict, it would be undermining its own mandate and credibility yet again. Importantly, it would be betraying the Palestinian people who are looking to it for justice.