Even so, turning this international opposition into legal action against Israel will be no small task. The Palestinians would face a number of legal and political obstacles in pressing forward.
For starters, it remains unclear whether the Palestinians qualify for membership in the court, because it is open only to states.
Last April, the court’s chief prosecutor at the time, Luis Moreno-Ocampo, turned down a request by the Palestinians to join the court. But he subsequently said in an AP interview that they would qualify for membership if they gained nonmember state status at the U.N.
So far, the court has said only that it “takes note” of last week’s U.N. decision and will consider its “legal implications.” Moreno-Ocampo is no longer at the court.
Goran Sluiter, professor of international law at Amsterdam University, said that with their newfound status, it seems likely the Palestinians could join the ICC. But it is unclear whether the court would agree to investigate their complaints.
He said the court would look at key issues, including the gravity of the alleged crimes and whether Israel’s own judicial system is capable of judging the case, before deciding whether to prosecute. If they were to launch a probe, prosecutors also would look at alleged crimes by Palestinians.
“I think there is still a very, very, very, long way to go,” Sluitter said. In the conflict between the Palestinians and Israel, “there’s a broad range of conduct that could be a basis for further investigations because they would qualify as war crimes.”
Robbie Sabel, a former legal adviser to the Israeli Foreign Ministry, said he thinks the Palestinians “will seriously hesitate” taking action against Israel.
He said Israel, for instance, could try to hold the Palestinian Authority responsible for rocket attacks out of the Hamas-ruled Gaza Strip aimed at Israeli cities. Palestinian President Mahmoud Abbas, who lost control of Gaza to Hamas five years ago, claims to represent both territories on the international stage.
“Any Hamas person who launches a rocket could then be subject to ICC ruling. They have to expose their own people first,” said Sabel, who is now a law professor at the Hebrew University.
A U.N. report into heavy fighting between Israel and Hamas four years ago found evidence of war crimes by both sides.
Israeli Foreign Ministry spokesman Yigal Palmor said Israel would fight any attempt by the Palestinians to use the ICC as a “politicized instrument” against Israel. “We are not worried about Israel’s case because we have a good solid case and we work strictly according to international law,” he said.
The Palestinians would also face heavy political pressure not to go to court. The U.S. Senate, for instance, is debating legislation that would cut off millions of dollars in assistance to the Palestinians and close their diplomatic offices in Washington if they file charges against Israel. The legislation is expected to be voted on in the coming days.
A senior Palestinian official said the Palestinians are in “no hurry” to rush to the ICC, in part because they are pleased with the heavy international condemnations of Israel’s latest settlement plans but also because of fears of antagonizing the U.S.
The official, speaking on condition of anonymity because he was discussing internal high-level deliberations, said the Palestinians are now focused on repairing ties with the U.S., which sided with Israel in opposing last week’s U.N. resolution. Yet he noted that the Palestinians have refused calls to promise not to go to the ICC.
Late Tuesday, a meeting of the Palestinian leadership in the West Bank said they would ask the U.N. Security Council to pass a decision calling on Israel to halt “all forms of settlement activity.” In a statement, the Palestinians condemned the latest planned construction as “war crimes,” but, reflecting their current thinking, made no mention of going to the ICC.
