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Noah Feldman

Do Palestinians Have to Take Israel to Court?

Palestinians' repeated appeals to the ICC, even if unsuccessful, will create a constant drumbeat that Israel is in violation of international criminal law.
Looking for leverage.

Looking for leverage.

Photographer: Abbas Momani/AFP/Getty Images

Palestine’s bid to join the International Criminal Court is unlikely to lead to actual charges being brought against Israel, for reasons legal, political and institutional. So why is Palestinian President Mahmoud Abbas willing to pay a high price in lost revenue and U.S. anger to make the effort? And why is Israel so concerned about the Palestinian move? The answer is a matter of framing -- and it sheds light on the trajectory of the Israeli-Palestinian conflict more than 20 years after the Oslo accords.

The legal barriers to ICC jurisdiction over the Israel-Palestine conflict are significant and complex. The most salient is that the ICC only takes jurisdiction when the accused state has been unable or unwilling to make a serious criminal investigation on its own. Yet Israel has a robust judicial system that has consistently investigated civilians and military personnel alike for alleged war crimes. What's more, the Israeli military is accustomed to operating under judicial supervision that's almost unmatched anywhere in the world. As a result, Israeli military officials typically act only after receiving advice from military lawyers that justifies both their strategy and their tactics. These facts make ICC jurisdiction unlikely.