Palestine and the ICC? All Bark and No Bite

Christina Moreno

Christina Moreno is an American expat living in The Hague, Netherlands, where she works as a Community Manager and Head of Communications at HiiL Innovating Justice. She has interned at Prakken d’Oliveira (previously Bӧhler Advocaten) and the International Tribunal for the former Yugoslavia (ICTY). A native of Seattle in the U.S., Christina earned a B.A. with a minor in Human Rights from the University of Washington and a JD from the University of Idaho College of Law, where she focused her studies on international law. 

Law and Order

 

On January 6, the United Nations Secretary-General Ban Ki-Moon announced that Palestine will formally become a member of the International Criminal Court (ICC) on April 1, 2015. The Court’s registrar confirmed on Wednesday that jurisdiction would date back to June 13, 2014.

 

The Palestinian Authority’s provocative move to join the ICC came a day after it was denied statehood by the UN Security Council. Undeterred, the Palestinians delivered signed documents to ratify the Rome Statute—which governs the ICC—to the UN headquarters. The Hague-based court has jurisdiction to prosecute individuals for war crimes, crimes against humanity, and genocide.

 

Membership to the ICC will give the Palestinian Authority unprecedented leverage to ensure that Israel is more compliant regarding withdrawal from the occupied territories. Furthermore, this move would allow the Court’s prosecutor to investigate the 50-day war between Israel and Hamas militants in the Gaza Strip last summer, in which more than 2,100 Palestinians were killed, most of them civilians.

 

In response to Palestine’s move to become a member of the ICC, the government of Israel has withheld more than $127 million in tax revenue from the Palestinian Authority, a move strongly condemned by the U.S. and the EU. Additional retaliatory action by Israel includes revoking VIP travel status for Palestinian officials, announcing new settlements, or taking legal action in other jurisdictions. Despite the U.S.’s opposition to Israel’s withholding of tax revenue, it has threatened to cancel $440 million worth of aid to the Palestinian Authority, adding that if the Palestinians bring legal action against Israeli citizens before the ICC, the Authority will quickly become more than a threat. This is a clear sign that the government of Israel is neither intimated nor compelled to hold out an olive branch to the Palestinian Authority.

 

 

The Question of Statehood

As a member of the Court, the Palestinian Authority would be allowed to file war crimes suits against Israeli citizens, even though Israel is not party to the ICC. While the Court does not have universal jurisdiction, it may exercise jurisdiction if a crime took place within the territory of a State Party or a State otherwise accepting the jurisdiction of the Court (Article 4(2) of the Rome Statute). In short, Palestinian membership would allow the Court to exercise jurisdiction over war crimes committed on Palestinian soil without a referral from the UN Security Council.

 

The main issue regarding the Palestinian Authority’s membership to the ICC is the question of Palestinian statehood. Is Palestine a sovereign state?

 

Palestine’s eligibility to join the ICC began with its successful bid for de facto recognition of statehood at the UN General Assembly in November 2012. It is important to note that de facto (or unrecognized) statehood is not the same as official (or recognized) statehood. Palestine’s de facto recognition grants Palestine non-member observer status in the UN and not complete membership.

 

Although the Palestinian Authority gained de facto recognition from the UN General Assembly in November 2012—giving Palestine the opportunity to become a member of the Court and a host of other international bodies—the question remains as to whether Palestine actually constitutes a “state” for the purposes of the Rome Statute. Article 125 of the Rome Statute states, “any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary-General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter.”

 

The U.S. has been one of the main opponents of Palestine’s moves for recognition in the UN. As U.S. State Department spokeswoman Jen Psaki underscored during Palestine’s recent bid for recognition of full statehood, “The United States does not believe that the state of Palestine qualifies as a sovereign state and doesn’t recognize it as such and does not believe that it is eligible to accede to the Rome statute.

 

The UN denied full recognition of statehood to Palestine in a vote held in December 2014. The question remains whether de facto recognition alone is enough for the Rome Statute to apply.

 

Much to the dismay of its detractors, the only way for Israel to challenge Palestine’s eligibility to become an ICC member would be in court, but only after an Israeli national came forward for prosecution by the ICC. The defense could challenge the case’s legality by arguing that Palestine was not a state. This is, however, a very unlikely scenario.

 

 

Implications for Palestine Joining the Court

Although Israel—like the US—is not a party to the Rome Statute, its citizens could be tried for actions taken on Palestinian land. Israel does have options for blocking ICC prosecution, however, some of which are sanctioned by the Court itself. For instance, the ICC is a court of last resort. According to the Rome Statute, a state can conduct war crime trials against its own citizens to prevent the ICC from intervening.

 

So far, the Israel Defense Force (IDF) has opened 13 criminal investigations into eight deadly incidents that occurred during its 50-day Gaza operation, and another 85 incidents are under “various stages of review.” Among those incidents being investigated are the deaths of four boys in an Israeli strike on a Gaza beach on July 16, and an attack on a UN school on July 24. At this point, the IDF has closed seven cases in which the investigation found that the actions of the individuals did not “appear to substantiate reasonable grounds for suspicion of criminal behavior.”

 

While these investigations seem to be in line with international law, their legitimacy is questionable, since for those involved an internal investigation is preferable to a potential probe by the ICC. The Court can only intervene in such cases if national trials are deemed neither independent, nor impartial, if they have “shielded” defendants from “criminal responsibility, or if the prosecution has an “unjustified delay.” So although Israel appears to be following the norms of international law, their investigations have curiously not led to any concrete prosecutions.

Additionally, joining the court—and extending jurisdiction retroactively—could prove counterproductive for the Palestinians, since it exposes its citizens to potential investigation and prosecution for war crimes and crimes against humanity. For example, Israel could countersue Palestinians in response to reports that indiscriminate rockets were fired on Israel cities, leading to an investigation on war crimes against Palestine. This serves as a clear indication that both sides have a lot at stake.

 

Yet, despite the risks to Palestine, its accession to the Rome Statute could be seen as a big step toward statehood, prompting better domestic judicial systems and effective domestic investigations of alleged crimes in both Palestine and Israel. It could also encourage both sides to comply with their obligations under international human rights and international humanitarian law. With this, no one loses.

 

 

Palestine, Israel, ICC, International Law, United Nations