This apparent hesitance or at least lukewarm enthusiasm for the ICC’s potential is not misplaced. It is important to have an accurate understanding of the preliminary examination of the ‘situation in Palestine’, in view of the challenges to ICC action: its ability to face up to political pressure; its problematic professional track record, which has not inspired public confidence; and the procedural and substantive hurdles the prosecutor must overcome to bring forward a criminal case.
As with any international institution, the ICC is a political animal: dependent for legitimacy on its proponents and susceptible to the whims of its state donors and supporters. Although the status quo of unquestioned Israeli impunity has begun to improve since Israel’s 2014 offensive on Gaza, other countries evidently still feel the need to keep the ICC’s work on Palestine at bay in the name of finding a political solution. Even the European Union, which has otherwise become fully cognizant of Israel’s unwillingness to apply international law in good faith -- for instance, in defining its territorial boundaries – previously tried to dissuade Palestine from joining the Court, and continues to encourage Israeli domestic proceedings regarding potential war crimes rather than acknowledging Israeli impunity and pushing for an ICC investigation.
As critics of the ICC’s work often point out, its track record so far reflects a preoccupation with African cases and an apparent reluctance to open investigations concerning Western officials and their allies. In short, it is highly sensible to high political stakes, which are embedded in the Rome Statute (which gives the Security Council the mandate to request investigations, such as into African cases), and in the ICC’s particular institutional function in the international system. The ICC’s Office of the Prosecutor (OTP) has vigorously defended its impartiality, but the Court cannot be fully insulated from political pressure nor can it carry out its functions without political support; not least because it relies on state parties to carry out arrest warrants.
If the ICC’s work on the situation in Palestine hinges on the Office of the Prosecutor’s ability to put aside politics, it also requires Prosecutor Bensouda’s office to obtain the facts necessary to substantiate complex legal issues. Certain allegations, particularly war crimes, may appear black and white, but crimes against humanity, such as persecution and apartheid (which has no precedent), have particularly high evidentiary thresholds. The politically-sensible need to uphold the court’s impartiality by rigorously applying existing procedural requirements – through the Prosecutor’s presentation of watertight cases based on expert analysis and a sound body of fact – means that even open-and-shut cases of international crimes are likely to take time before materializing in arrest warrants.
Procedural hurdles matter
The OTP applies rigorous criteria to assess the viability of certain cases, including its own ability to access necessary information about specific acts. In all cases, the OTP must weigh the resources required to investigate a case, as well as the feasibility of taking a case through to the investigation and prosecution stages – such as identifying specific perpetrators and accomplices, including decision-makers and commanders. That assessment will include the likelihood of Israeli non-cooperation and denial of investigators’ access to Palestinian territory.
While the Court’s temporal jurisdiction could go back as early as 1 July 2002, when its treaty came into force, on Palestine, the OTP has said that its work could not reach back before November 2012, when the United Nations General Assembly ‘recognized’ Palestine’s statehood through upgrade in its observer status. In fact, the temporal scope of the OTP’s ‘preliminary examination’ is, at least for now, limited by Palestine’s Article 12(3) declaration triggering the ad hoc jurisdiction of the Court, submitted in January 2015, which requested jurisdiction onwards from 13 June 2014.
That being the case, the fundamental right of return of Palestine refugees would certainly not fall under the ICC’s material jurisdiction, although more recent acts of forcible transfer and systematic government-sanctioned displacement of Palestinian communities certainly would. An open-ended question in this respect, as well as in the case of settlements, concerns the temporal scope and continuity of certain violations (e.g. does the violation continue for as long as the community remains displaced).
It is in part because of the difficulty of investigating and prosecuting the specific cases that it considers to make up the ‘situation in Palestine’, that experts do not expect the OTP will rush to open an investigation. The OTP is not bound by any particular timeframe to move beyond the current, ‘preliminary examination’ stage of the proceedings, and some speculate that it may take three, eight, or even ten (as has been the case with other situations) to even decide whether it wishes to investigate international crimes from the situation in Palestine and which these would be.
The preliminary examination is bound to be fraught. Once it reaches the third stage of the examination, for instance, the OTP will conduct an assessment of admissibility issues, including complementarity – the conformity of Israeli domestic proceedings to the international duty to investigate and prosecute. This is bound to become a food fight with Israel unless managed professionally. Israel’s domestic proceedings have thus far consistently lacked transparency, impartiality and independence, and shielded both high-level decision-makers and military officials from accountability. Yet, since the 2014 Gaza war, Israeli authorities have announced their intention to undertake unprecedented investigations of decision-making processes by the highest echelons, directed explicitly at heading off the ICC’s jurisdiction.
Adding to the likely delay, Prosecutor Bensouda has made clear that her preliminary examination is considering the situation in its highly-complex entirety: both Palestinian and Israeli violations, in both the West Bank and Gaza Strip. Yet, in this regard, it should be recalled that the ICC’s remit is of a limited scope: when and if the OTP ultimately decides to investigate, it will investigate only those most responsible for the most serious crimes, addressing the most exceptional incidents, in light of their gravity, basis in policy, and the impact of certain cases on the dynamic of the conflict.
That being said, the OTP’s very desire to substantiate its impartiality and uphold the integrity of its work may come at the cost of issuing a timely decision. For instance, if Palestine were to submit a state referral under Article 14 (as opposed to the article 12 declaration that triggered the preliminary examination), the Prosecutor’s office would not need approval from the Pre-Trial Chamber to open an investigation, potentially hastening the process. Yet the OTP reportedly discouraged Palestine from submitting a referral, out of a belief that the Pre-Trial Chamber’s stamp of approval is important for its impartiality; as it means there will be heightened scrutiny of both prima facie evidence and the assessment of the likelihood of success in taking the case forward.
Principled political support
Civil society should be aware of these shortcomings in its engagements with the ICC. While it is too early to know whether the Prosecutor’s office will engage in foot-dragging in the face of political obstruction, civil society should adopt a supportive and coherent approach to interactions with the Prosecutor’s office to monitor and redress either prospective external pressures or procedural obstacles. Such exchanges should carefully consider and seize opportunities to influence the OTP’s prosecutorial strategy, both in terms of her choice of cases, as well as her intention to examine the situation in its entirety before proceeding with any investigations. The latter may prove an unreasonably burdensome task that might come at the expense of the operationalization of the court’s deterrent role – presenting civil society with an opportunity to argue for a ‘batched’ or ‘sequential’ approach to investigations.
Moreover, since it is often the case that opponents of international justice for Israel used the well-known tactic of seeking to undermine the facts documented by blaming the partisanship of the rights group, civil society should not limit its contributions to the court’s work to factual submissions: expert opinions by way of Article 15 submissions, not only by sympathetic law professors, but especially by experienced ICC practitioners and defense counsel, could provide the OTP’s situation analysis team with crucial support when making the case to open certain investigations. Advocates reported that the Prosecutor herself has signaled the importance of such contributions.
To ensure political safe space for the court’s work, civil society should also seek the support of third party states and international actors – including by analyzing and activating the self-defined commitments of third parties to the Court’s role and recently also to accountability in the specific Israel/Palestine context. Indeed, the systematic nature of Israel’s violations of international law, including apparent international crimes, and their embeddedness in Israeli legal and administrative practice, have triggered ongoing revisions of EU-Israeli relations public and private. Those engaged in inter-state relations with Israel should be mindful of opportunities to urge and potentially leverage Israeli cooperation with the Court, with both Israel’s and the international community’s best interests in mind.
Civil society should carefully take stock of the EU’s positions on Israeli practices, domestic proceedings and the importance of accountability. Despite continuing to prioritise Israeli domestic proceedings, apparently in hope that Israeli authorities live up to their obligations under the principle of complementarity, the EU and its member states should be made aware of the unsustainable nature of this position given the unlikelihood of Israeli conduct fulfilling international standards, which comes at the expense of ensuring both EU’s and Israel’s respect for international law. Instead, civil society interventions should further and develop the EU’s specific, principled positions on the non-conformity of Israeli domestic proceedings with international standards, and the inadequacy of Israeli cooperation with the Court.
The EU and member states also have a relatively developed set of commitments (including financial) to the role of the court (especially amid ongoing conflict and persisting violations); despite maintaining a significant margin of appreciation in choosing the measures by which to pursue these commitments. Indeed, the EU’s own legal needs to uphold its public policy require it to protect the legal orders of its member states from the effects of Israeli unlawful acts – including those of transnational criminal acts on domestic law.
Cynics like former Prosecutor Moreno-Ocampo have sought to politicize the court’s role and characterize its procedures as insurmountable hurdles to the prosecution of Israelis for certain crimes. But to shield perpetrators of the most obvious cases of persisting international crimes (e.g. Israel’s unlawful appropriation of land and transfer of civilians into occupied territory, while forcibly transferring Palestinian communities) would be to do away with the Court’s very reason for being. Ultimately, the EU and its member states should be pushed to avoid the politicisation of the Court in the Israel/Palestine context, as in any other, so as to vigorously defend the Court’s professional standing, independence and integrity.
Since the need to protect the integrity of the Court’s function of rendering the basic service of justice to all peoples without discrimination is as great a need and value for Palestinians and their allies – who could certainly do more by way of dissemination and outreach to bolster the court’s professional role – as it is for the international community of states and international actors, a cautious, measured and rigorously professional approach by the Court and its proponents is needed to counter the vast political pressure and divisive argumentation that is and will continue to be associated with the Court’s work on the situation in Palestine.
* Dr. Valentina Azarova is a Research Fellow with the Institute of Law, Birzeit University, where she previously lectured on the MA in Democracy and Human Rights. She is also a policy adviser for al-Shabaka. She has advised local and international human rights groups on ways to support the ICC’s work, ensure political safe space, and activate the effects of Israeli unlawful acts on third state domestic legal orders.
 As part of phase two of the preliminary examination, the Office of the Prosecutor is presently reviewing jurisdictional issues, subject matter and potential crimes. A preliminary examination consists of four phases:
1) Acceptance of the declaration and temporal scope;
2) Review of jurisdictional issues, subject matter and potential crimes under the Rome Statute;
3) Review of admissibility and jurisdiction related issues, including complementarity in terms of existing investigations or proceedings in relevant domestic jurisdictions; and
4) Decision to open an investigation.
 An OTP trip to Gaza was announced in early 2015 but later reportedly shelved, due to resource considerations and the unlikelihood of access being granted.
 See generally, V Azarova, Palestine’s Day in Court?, Al-Shabaka, April 2015 https://al-shabaka.org/briefs/palestines-day-in-court-the-unexpected-effects-of-icc-action/.
 A composite test based not only on international human rights law, but also international humanitarian and criminal law.
 V Azarova, S Weill, Israel’s Unwillingness?International Criminal Law Review 12 (2012) available at https://www.academia.edu/13251771/Israel_s_Unwillingness_Follow-Up_Investigations_to_the_UN_Gaza_Conflict_Fact-Finding_Mission_Report.
 On 20 January 2015, Israel’s State Comptroller, Judge Shapira, stated: “According to principles of international law when a State exercises its authority to objectively investigate accusations regarding violations of the laws of armed conflict, this will preclude examination of said accusations by external international tribunals (such as the International Criminal Court in The Hague)”; The State Comptroller Investigation of Operation ‘TzukEitan’ -- Protective Edge, State Comptroller official site, http://www.mevaker.gov.il/he/publication/Articles/Pages/2015.1.20-Tzuk-EItan.aspx.
 See, V Azarova, Palestine’s Day in Court?, Al-Shabaka, April 2015 https://al-shabaka.org/briefs/palestines-day-in-court-the-unexpected-effects-of-icc-action/.
 Yet, a state referral would give Palestine a right to appeal a decision of the OTP not to open an investigation on any grounds. Without a referral, Palestine has no right of appeal, and the PTC can only decide to review an OTP decision not to investigate if the decision was based on considerations of interests of justice or gravity (and in the latter case, the PTC may not annul the OTP’s decision, but only request the OTP to review it).
 Since 1 April 2016 Palestine can submit a state referral as state party to the Statute under its Article 14; meaning that investigation does not require PTC approval. The OTP, some experts have noted, is interested in getting a stamp of approval from the PTC.
 The Goldstone report, for instance, was criticized for using documentation collected by Palestinian human rights groups to substantiate some of its conclusions.
 “The EU believes that compliance with international humanitarian law and international human rights law by states and non-state actors, including accountability, is a cornerstone for peace and security in the region”; Foreign Affairs Council, Council of the EU, July 2015 http://www.consilium.europa.eu/en/press/press-releases/2015/07/20-fac-mepp-conclusions/.
 European Council for Foreign Relations, EU Differentiation and Israeli Settlements (June 2015) www.ecfr.eu/publications/summary/eu_differentiation_and_israeli_settlements3076.
 The EU’s July 2015 FAC conclusions on the MEPP, incorporated a commitment to accountability: “The EU believes that compliance with international humanitarian law and international human rights law by states and non-state actors, including accountability, is a cornerstone for peace and security in the region.” http://www.consilium.europa.eu/en/press/press-releases/2015/07/20-fac-mepp-conclusions/. See als, EU’s 2011 Council decision (which are legally binding on the EU and its Member States) on the ICC and its related Action Plan which sees the ICC as “an essential means of promoting respect for international humanitarian law and human rights…as well as contributing to the preservation of peace”; Action Plan to follow-up on the Decision on the International Criminal Court, Political and Security Committee, Council of the European Union, July 2011 http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2012080%202011%20INIT.
 V Azarova, ICC action and the domestic effects of transnational criminality, open Global Rights, 16 June 2015 https://www.opendemocracy.net/openglobalrights/valentina-azarov/icc-action-and-domestic-effects-of-transnational-criminality.
 Whose recent public lecture at the Hebrew University was titled ‘Learning from Reality: International and foreign courts' Interventions in the Israel/Palestine Conflict’, 14 December 2015 http://law.huji.ac.il/eng/mess.asp?cat=1038&news_id=28570&in=1038. During which he was quoted as saying that “Israel’s High Court is highly respected internationally” and that anyone prosecuting Israelis regarding settlement activity might be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court; Jonah Jeremy, Former ICC prosecutor: High Court approval could save settlements from war crime label, JPost, 12 October 2015 http://www.jpost.com/Arab-Israeli-Conflict/Former-ICC-prosecutor-High-Court-approval-could-save-settlements-from-war-crime-label-436967.
 See, for instance, MartijnGroenleer, The United States, the European Union, and the International Criminal Court: Similar values, different interests?, International Journal of Constitutional Law 13(4) (2015) 923-944.