The ruling was therefore non-binding; yet despite its purely theoretical nature, the ruling was enough to shine a light on a number of colonialist Israeli policies. Nevertheless, the Palestinians failed to utilize the ICJ ruling adequately to mobilize international public opinion behind their cause. All but ignored, the ruling was almost forgotten within a few months. Today, nine years after that historic ruling, many things have changed.
Palestine is now an internationally recognized state that is qualified to seek membership of such international bodies as the International Criminal Court (ICC) and the Rome Convention. It is also qualified to activate the ICJ ruling, especially as Israel has not only continued but also intensified its crimes after the ruling was issued. The Palestinians must exploit their new status by asking international bodies to compel Israel to cease construction work on the wall and reverse the measures it has undertaken to Judaize the Palestinian capital of East Jerusalem.
Among the Arab states bordering Israel, only Jordan has joined the ICC. While it is true that many countries chose not to seek membership of the tribunal (including the United States, which fears that its soldiers could be prosecuted for the war crimes they committed in Iraq, Afghanistan, Guantanamo, and countless other places; besides, the Americans, who believe their country to be a beacon of human rights, considered it beneath themselves to see their commitment to these rights called into question), Arab countries on the whole refused to become members because of their appalling human rights records. Syria for example could have sought ICC membership in order to obtain a resolution condemning Israel’s occupation of the Golan Heights and the measures the Jewish state took against the inhabitants of that occupied Syrian territory. But Damascus knew that ICC membership is a two-edged sword. What with its constant violation of the human rights of the Syrian people, Damascus knew that it would have been only a matter of time before it too were censured by the ICC. That was why it did not care to seek membership of the international judicial body.
But there is an exception to this rule. Non-member states are not strictly unaccountable, since they can be referred to the ICC by the Security Council. Yet because of the complexity of relations and interests between the permanent members of the UN Security Council, this could be a very difficult process. The term ‘occupied Palestinian territories’ is no longer legally accurate. The fact that Palestine has acquired the status of a state (albeit in an observer capacity) by a resolution of the UN General Assembly makes it the only UN member state to be completely under occupation; an anomaly if there ever was one.
Yet this was not the only reason why Israel – backed by the United States – sought to obstruct the General Assembly resolution. What Israel really feared was that the Palestinians could ask the ICC to look into the issues of settlements, Judaization, and the racist Separation Wall.
The State of Palestine has yet to seek ICC membership. Some see this as a deliberate policy designed to strengthen the hands of Palestinian negotiators in the U.S.-sponsored peace talks. The Palestinian leadership believes that threatening to seek ICC membership would help the Palestinians pressure Israel into reversing some of its settlement policies and remove the obstructions it has put in the way of resuming peace talks. Clearly, this policy has not worked. Yet some jurists believe that that is not the sole reason why the Palestinians have not sought ICC membership. They point to the violations of Palestinians’ human rights committed by the Palestinian authorities, violations such as torture and extrajudicial detention, which make the Palestinian leadership wary of seeking ICC membership – especially if we take into account that, legally speaking, the Palestinian leadership is responsible for all Palestinian territory including the West Bank, Jerusalem, and Gaza.
It is perfectly feasible that the Palestinians would be subject to constant Israeli complaints should they seek to become ICC members – especially if Israeli citizens were to be harmed by for example Palestinian rockets emanating from Gaza. Israel could exploit Palestinian membership to divert attention away from its own violations by portraying the Palestinians as aggressors. Yet justifications and excuses aside, I believe that it is essential for Palestine to become a member of the ICC.