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Explainer: With its new UN status, could the Palestinian Authority take Israel to the International Criminal Court?

On Thursday, the Palestinian Authority won “non-member observer state” status at the United Nations General Assembly. Will it use this to take Israel to the International Criminal Court?

On Thursday afternoon, the United Nations General Assembly recognized the Palestinian Authority as a “full nonmember observer state,” giving the Palestinians strong symbolic backing.

The Palestinians’ new status begs the question: Could Palestine try to bring Israel in front of the International Criminal Court for alleged war crimes?

Here’s what you need to know to answer that question.

What is the International Criminal Court?

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The ICC is a permanent, treaty-based, international criminal court, governed by the Rome Statute. It is not part of the United Nations system. Based in the Netherlands, at The Hague, the ICC was established to “help end impunity for the perpetrators of the most serious crimes of concern to the international community.”

Does the Palestinian Authority have access to the ICC?

The Palestinian Authority accepted the ICC’s jurisdiction in January 2009, under Article 12(3) of the Rome Statute. The ICC wrote, “The Office received over 400 communications on crimes allegedly committed in Palestine.”

However, in April, the ICC’s General Prosecutor Luis Moreno-Ocampo said the court would not accept a Palestinian demand to investigate alleged war crimes by Israel, dating from 2002, until Palestine was recognized as a state by the UN General Assembly, according to Al Arabiya.

“In order to proceed we need the General Assembly of the UN accepting Palestine as an observer state. As soon as this is done we can proceed,” Ocampo told Al Arabiya.

The BBC noted that the Palestinian Authority would likely try again to gain ICC access after a UN vote in their favor, and Palestinian officials have hinted at this. “Those who don’t want to appear before international tribunals must stop their crimes and it is time for them to become accountable,” said the chief Palestinian negotiator, Saeb Erekat.

Al Arabiya noted that the cases the ICC hear are limited to war crimes and crimes against humanity committed by a country, or national of a country, within its jurisdiction. “A state not party to the Rome Statute can be brought before the ICC only if it chooses to accept the court’s jurisdiction or if the United Nations Security Council refers a situation to it.”

However, according to the United Nations Treaty Database, communication was received on August 28, 2002 from the government of Israel that Israel did not intend to become a party to the Rome Statute, although it had initially signed on to the statute in 2000. “Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000. Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”

What alleged war crimes could the Palestinians pursue?

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Israeli Prime Minister Benjamin Netanyahu has reportedly privately indicated that he fears the Palestinians would accuse his government of violating the Geneva Conventions’ prohibition on forced displacement of populations by establishing settlements, Reuters reported.

Time magazine noted that the ICC is on record as leaning toward regarding Israel’s residential settlements in the West Bank as a crime of war. “The physical presence of the settlements in other words would give Palestine a ready-made case to drag Israel before the court — or to threaten dragging it before the court,” said Time.

However, in his September address at the UNGA, Palestinian Authority President Mahmoud Abbas began laying the foundation for charges based on the violence of some individual settlers, not the settlements themselves.

Abbas told Time, “We will not use force against the settlers. I can use the court, but it’s better for the Israelis not to push us to go to the court. They should put an end to these acts committed by the settlers.”

Does the West support the Palestinians use of the court?

For the most part, no. The Guardian noted that the Palestinian Authority has so far resisted pressure from the US and the United Kingdom to renounce the right to accede to the ICC. The UK said it would abstain from the vote in the UNGA over Palestinian status.

Agence France Presse reported that France, despite endorsing UN recognition of Palestine as a nonmember state, also warned the Palestinians not to take Israel to the ICC, saying such a move would damage peace efforts.

What are the chances the ICC would take the case?

Not very high. The Daily Beast noted that even if Abbas were to make an appeal for investigation to the ICC, the possibility of international war crimes charges being brought against Israeli officials is remote. The ICC has some escape clauses such as claiming insufficient evidence or saying that Israel’s legal system could pursue the charges.

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The Daily Beast argued that investigating Israel would be a radical departure for the ICC, which to date has mostly dealt with intra-state violence in some African countries with barely functioning justice systems. The court would also risk getting its funding from European countries cut.

Palestinian envoy to the UN Riyad Mansour said, “I don’t believe that we are going to be rushing the second day to join everything related to the United Nations, including the ICC,” on Tuesday, according to the Jerusalem Post.

However, he said if Israel continued to violate international law, especially by building settlements, the Palestinians would consult with their friends on what should be done to “bring Israel into compliance.”

“We’re not in the business of trying to prolong this conflict and settle scores,” Mansour said. “But we are not fools nor dummies. If they don’t move in that direction … then all of us should be considering all other possible options in order to bring them into compliance.”