Assessing Complementarity in Palestine

Human Rights Watch (HRW) has just released a detailed argument that International Criminal Court (ICC) prosecutor Fatou Bensouda should seek a full investigation of the situation in Palestine. The prosecutor began a preliminary examination of the situation in January 2015, and HRW is clearly concerned that Palestine may be headed into that category of long-running and inconclusive preliminary examinations that includes Afghanistan, Colombia, and (until recently) Georgia.

The report notes the high civilian toll in the recent Gaza conflict and also documents continued Israeli settlement activity in the West Bank, which might constitute a war crime under the Rome Statute. The most interesting section of the HRW document analyzes the state of Israeli and Palestinian investigations of alleged criminal behavior. This "complementarity" analysis is critical for the prosecutor because it helps determine whether the situation is admissible (if national judicial systems are investigating alleged crimes, the ICC is supposed to abstain from its own investigation). HRW paints a dark picture of the parties' accountability measures:

Israeli military inquiries into the 2014 Gaza hostilities are ongoing. Thus far, two soldiers have been charged with looting about US$600 from a Palestinian home and a third with covering it up. In January 2015, Israel also announced an investigation by its state comptroller, but no report is yet available. In May 2015, Israeli authorities published a report on the “factual and legal aspects” of the 2014 Gaza conflict, including a summary of military inquiries to date. However, the Commission of Inquiry expressed its concern about “a number of procedural, structural and substantive shortcomings, which continue to compromise Israel’s ability to adequately fulfil its duty to investigate.” On May 25, 2016, an Israeli human rights organization, B’Tselem, announced that after 25 years of referring to the IDF reports of alleged human rights and humanitarian law abuses by its personnel and urging the IDF to investigate them, it was halting such referrals, describing the IDF’s apparatus for investigating abuses as a “whitewash mechanism.”

The Palestinian Authority government in the West Bank and Hamas in Gaza are not known to have carried out any investigations of alleged war crimes committed by Palestinian armed groups, including the deliberate or indiscriminate firing on civilians in Israel.

On this telling, the ICC prosecutor's office (OTP) would have little reason to delay a full investigation. I suspect the prosecutor's office sees complementarity as more complicated. As HRW notes, several Israeli inquiries are ongoing regarding military conduct in Gaza, and the OTP has been very deferential to national proceedings (even ones fraught with problems) in places like Colombia, Georgia, and Russia. As I've argued elsewhere, settlements is the area where Israeli has no real complementarity defense (its highest court has punted on the international legality of the practice). But there are a plethora of other complex legal questions surrounding settlements, and I doubt the OTP would seek a formal investigation without the complementarity issue in Gaza having been resolved for both sides. HRW may be champing at the bit for a full investigation, but the OTP is probably not.