By George Bisharat
Last week, the Palestinian foreign minister, Riad Malki, declared that if Israel persisted in its plans to build settlements in the currently vacant area known as E-1, which lies between Palestinian East Jerusalem and the Israeli settlement of Maale Adumim, "we will be going to the I.C.C.," referring to the International Criminal Court. "We have no choice," he added.
The Palestinians' first attempt to join the I.C.C. was thwarted last April when the court's chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations' conferral of nonmember state status on Palestine in November. Israel's frantic opposition to the elevation of Palestine's status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.
Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court's founding on July 1, 2002.
Since the outbreak of the second Palestinian intifada in 2000, the Israel Defense Forces, guided by its military lawyers, have attempted to remake the laws of war by consciously violating them and then creating new legal concepts to provide juridical cover for their misdeeds. For example, in 2002, an Israeli F-16 dropped a one-ton bomb on an apartment building in a densely populated Gaza neighborhood, killing a Hamas military leader, Salah Shehadeh, and 14 others, including his wife and seven children under the age of 15. In 2009, Israeli artillery killed more than 20 members of the Samouni family, who had sought shelter in a structure in the Zeitoun district of Gaza City at the bidding of Israeli soldiers. Last year, Israeli missiles killed two Palestinian cameramen working for Al Aksa television. Each of these acts, and many more, could lead to I.C.C. investigations.
The former head of the Israeli military's international law division, Daniel Reisner, asserted in 2009: "International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later it is in the center of the bounds of legitimacy."
Colonel Reisner is right that customary international law is formed by the actual practice of states that other states accept as lawful. But targeted assassinations are not widely accepted as legal. Nor are Israel's other attempted legal innovations.
Israel has categorized military clashes with the Palestinians as "armed conflict short of war," instead of the police actions of an occupying state — thus freeing the Israeli military to use F-16 fighter jets and other powerful weaponry against barely defended Palestinian populations in the West Bank and Gaza Strip.
It has designated individuals who fail to leave a targeted area after a warning as "voluntary human shields" who are therefore subject to lawful attack, despite the fact that warnings may not be effective and escape routes not clear to the victims.
And it has treated civilian employees of Hamas — including police officers, judges, clerks, journalists and others — as combatants because they allegedly support a "terrorist infrastructure." Never mind that contemporary international law deems civilians "combatants" only when they actually take up arms.
All of these practices could expose Israeli political and military officials to prosecutions for war crimes. To be clear, the prosecutions would be for particular acts, not for general practices, but statements by Israeli officials explaining their policies could well provide evidence that the acts were intentional and not mere accidents of war.
No doubt, Israel is most worried about the possibility of criminal prosecutions for its settlements policy. Israeli bluster notwithstanding, there is no doubt that Jewish settlements in the West Bank, including East Jerusalem, are illegal. Israeli officials have known this since 1967, when Theodor Meron, then legal counsel to the Israeli Foreign Ministry and later president of the International Criminal Tribunal for the former Yugoslavia, wrote to one of Prime Minister Levi Eshkol's aides: "My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention."
Under the founding statute of the I.C.C., grave violations of the Geneva Conventions, including civilian settlements in occupied territories, are considered war crimes.
The next step for the Palestinians is to renew a certificate of accession to the I.C.C. with the United Nations secretary general. Assuming that I.C.C. jurisdiction is accepted, investigations of alleged Israeli war crimes would still not begin automatically, because the I.C.C. must next find that Israel's own courts are failing to adequately review those charges. Palestinians, by inviting I.C.C. investigations in the West Bank and Gaza Strip, also run the risk that their own possible violations — such as deliberate attacks on Israeli civilians — could come under I.C.C. scrutiny.
If Palestinians succeed in getting the I.C.C. to examine their grievances, Israel's campaign to bend international law to its advantage would finally be subjected to international judicial review and, one hopes, curbed. Israel's dangerous legal innovations, if accepted, would expand the scope of permissible violence to previously protected persons and places, and turn international humanitarian law on its head. We do not want a world in which journalists become fair game because of their employers' ideas.
If the choice is between a Palestinian legal intifada, in which arguments are hashed out in court, and an actual intifada, in which blood flows in the streets, the global community should encourage the former.
Indeed, Palestinians would be doing themselves, Israelis and the global community a favor by invoking I.C.C. jurisdiction. Ending Israel's impunity for its clear violations of legal norms would both promote peace in the Middle East and help uphold the integrity of international law.
George Bisharat is a professor at the University of California's Hastings College of the Law.
This Op-Ed was originally published at The New York Times