The main reason, current and former Palestinian officials say, is that Israel has threatened unspecified retaliation if it seeks the court’s jurisdiction, and the US has reinforced the threat. As a former Palestinian legal adviser told me, “The US said to us clearly, conveying Israel’s position, ’Don’t touch it.’” US Secretary of State John Kerry said during his Senate confirmation hearings that the US was “very, very strongly against” any “effort to take Israel for instance … to the ICC.”
Other countries that, as ICC members, should be pushing for universal ratification of the court’s statute – including the UK, France, and most recently recently Canada – have instead also pressured Palestine not to seek justice through the ICC.
Notably, the ICC’s statute categorizes the “direct or indirect” transfer of civilians by an occupying power into occupied territory – like the Israeli government’s transfer of Jewish citizens into the settlements – as a war crime. Another war crime under the statute is the “forcible transfer” of protected people in an occupied territory off their lands, such as by demolishing their homes and preventing them from returning.
Since Prime Minister Benjamin Netanyahu of Israel came to power in 2009, construction has begun on 8,575 settlement homes. Israeli demolitions during the same period left more than 4,000 Palestinians homeless. Both trends are accelerating. There were 1,708 settlement housing starts in the first half of 2013, up by 70 percent over the same period in 2012, and demolitions have left 933 Palestinians homeless so far this year, up from 886 in all of 2012.
Palestinian leaders have said they would seek ICC jurisdiction at the present time if – and apparently only if – Israel builds settlements in the so-called #E1 area just east of Jerusalem, which many analysts say would effectively cut the West Bank in half.
But settlement-building is not only relevant to a future two-state solution: it takes a terrible, daily toll on people’s lives. Israel has granted settlements jurisdiction over 39 percent of the entire West Bank, making those areas off-limits to Palestinians who own land there or traditionally had access for farming and raising livestock. Meanwhile, as an Israeli rights group recently reported, the area used for settlement agriculture has increased by 35 percent since 1997, to 9,300 hectares. Some Palestinian farmers have no recourse but to lease land from settlers, who got it from Israel for free.
Israel, the US, and other countries have justified their calls for Palestine not to use its new UN status to pursue ICC jurisdiction by claiming it would undermine peace negotiations. But during 20 years of on-and-off negotiations, impunity for rights abuses and laws-of-war violations has fueled animosity and made negotiators’ jobs more difficult. The absence of credible accountability mechanisms has hardly proven an advantage in bringing the conflict to an end.