In December, the U.S. declined to veto UN Security Council Resolution 2334 and therefore allowed it to pass. The resolution declares it illegal for Jews to build homes or live in territory acquired during the 1967 war. It could, argues Josh Halpern, provide a legal basis for litigation against Israel in the International Criminal Court (ICC), thereby serving Mahmoud Abbas’s strategy of bringing international pressure to bear on the Jewish state:
As a political matter, the resolution’s legal language vindicates the Palestinian story of dispossession and could facilitate prosecutions of Israeli officials at the ICC. . . . [It] stabilizes the ground on which [the ICC prosecutor, Fatou] Bensouda might stand, were she to press for a “formal investigation” of Israel’s settlement activities. To move beyond the “preliminary examination” stage, the situation in the West Bank must satisfy the Rome Statute’s dual jurisdictional requirements of complementarity and gravity. The former restricts the ICC to cases where the state is “unwilling or unable” to investigate and punish violators, and here Israel’s settlement activities appear distinctly vulnerable. Not only do most settlements reflect official state policy, but Israel’s High Court of Justice has also deemed their status largely [outside its jurisdiction].
[But] the gravity requirement [is] where 2334 could have the greatest impact. To maximize the court’s legitimacy and limited resources, ICC prosecutors have so far focused primarily on physical brutalities like murder and sexual violence. . . . Resolution 2334 could alter this calculus. . . . [Its] renewed expression of “grave concern” about Israel’s “flagrant violation” of “international law” could prove decisive.
The approach certainly risks politicizing the court’s docket and straining its legitimacy, but it would also help defuse oft-cited concerns that the ICC has become an “African Criminal Court.” Signaling her sensitivity to this problem, the prosecutor recently promised to reshuffle her prosecutorial priorities, with a particular focus on two crimes, both of which the settlements are alleged to violate: “illegal exploitation of natural resources [and] dispossession of land.”