Because of the jurisdictional complications of the Palestinian situation, past actions, such as crimes committed by either side during Operation Cast Lead and the most recent violence in Gaza, most likely would not be prosecuted. But Israel may indeed find itself the focus of scrutiny for possible future crimes.
Yet the ICC is not the Nuremberg Tribunal, which convicted Germans but failed to consider Allied crimes. As much as some world leaders might prefer otherwise, ICC jurisdiction is not limited to one side in a conflict. When Uganda referred its own conflict to the ICC in 2004, its motivation was no doubt prosecution of leaders of the rebel Lord’s Resistance Army, but once the court took jurisdiction, the prosecutor was also able to investigate possible crimes by government forces. In other words, Hamas cannot expect a free pass in the future for indiscriminate shelling of Israeli civilians or use of Palestinian non-combatants as human shields.
In fact, ICC status may give the advantage to Israel on future prosecutions, while putting Hamas at a likely disadvantage. Because the ICC is considered a court of last resort that defers to national courts, it will not take on cases that states have made good-faith efforts to investigate or prosecute. Israel has already conducted investigations and undertaken some disciplinary actions regarding its forces’ behavior in Gaza; fear of ICC involvement might even encourage Israel to do more. Hamas, by contrast, has made no such efforts to deal with war crime allegations.
ICC membership also brings with it obligations that may not be easy for Palestinians to fulfill. ICC members pledge to cooperate with the court, which includes complying with arrest warrants and assisting in investigations. A new Palestinian state might be called upon to provide evidence against, and even surrender, some Palestinian nationals, like Hamas leaders. As members of an international community interested in justice, all states should respect ICC warrants as a matter of principle, but Israel – which originally signed onto the ICC, but then sought to withdraw its signature – has no such legal obligation. If a new Palestinian state joins the court, it will be taking on legal duties that Israel does not share.