Opportunities and Challenges Seeking Accountability for War Crimes in Palestine under the International Criminal Court’s Complementarity Regime
34 Pages Posted: 8 Oct 2018 Last revised: 25 May 2019
Date Written: September 16, 2018
The International Criminal Court is currently conducting a preliminary examination of the situation in Palestine, involving allegations against Israeli authorities and military personnel as well as what the Prosecutor refers to as “Palestinian armed groups”. The preliminary examination – opened in 2015 and currently placed in the so-called phase 2 where prosecutors focus on examining whether the requirements relating to subject-matter jurisdiction are satisfied – creates a framework for advancing accountability norms in the Palestinian context and globally for international crimes committed by States with significant (military and diplomatic) resources. However, the road to accountability is anything but straightforward. Indeed, several challenges relating both to the applicable legal framework and broader policy issues, could delay – or potentially even undermine – the accountability process, if not properly understood and managed. One particularly important issue addressed in this Article relates to the ICC’s complementarity regime whereby the Court can only proceed with cases that are not subject to active and genuine investigation or prosecution domestically. Whereas this principle is usually seen as something that intrinsically advances accountability norms, this Article questions whether this is necessarily the case in situations involving global and regional powers, including the Palestine examination. The Article makes three overarching arguments which advance our understanding of international criminal justice, in particular accountability for violations by States with significant resources. First, whereas the ICC is increasingly scrutinizing the actions of States with significant resources and seems willing to proceed with investigating highly sensitive situations, there are substantial challenges associated with achieving accountability for crimes committed by such States. Second, even if there are important variations in government responses, States with significant resources tend to take ICC intervention seriously, and there is some evidence that ICC interventions impact their behavior, although such change in behavior is not necessarily to the benefit of accountability. Third – and related to both of the above arguments – despite being typically viewed as something inherently ‘good’ in terms of advancing accountability norms, the ICC’s complementarity regime often presents challenges for advancing accountability in situations involving States with significant resources.
Keywords: International Criminal Court, Palestine, Israel, preliminary examinations, complementarity
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