JURIST Guest Columnist Megan A. Fairlie of the Florida International University College of Law says the International Criminal Court (ICC) will ultimately delay pursuing an investigation into the effect of Palestine’s non-Member Observer State status on the Court’s jurisdiction…

Almost immediately after the UN General Assembly voted to give Palestine non-Member Observer State status, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) announced its plan to “consider the legal implications” of Palestine’s upgrade. In theory, OTP’s assessment could lead to a blockbuster result: an ICC investigation into the serious crimes alleged to have been committed on the territory of Palestine, and the subsequent prosecutions of the perpetrators deemed responsible, whether Palestinian or Israeli. In reality it seems more likely that OTP will opt to remain silent about its assessment for some time, and that it ultimately will delay pursuing an investigation.

The 2009 Declaration

The Palestinian Authority began its efforts to accept the ICC’s jurisdiction in 2009, when it lodged a declaration under Article 12(3) of the Rome Statute of the ICC. This provision allows a State that is not a party to the Rome Statute to consent to the retroactive jurisdiction of the court over all ICC crimes (genocide, war crimes and crimes against humanity) committed on its territory. Written in the wake of Israel’s Operation Cast Lead, the declaration aims to grant the ICC jurisdiction over persons alleged to be responsible for war crimes and crimes against humanity committed in Gaza and the West Bank since July 2002.

The Issue of Statehood

Once the declaration was lodged, the fundamental threshold question was whether Palestine qualified as a “State” capable of making a declaration under Article 12(3), an issue that former ICC Prosecutor Luis Moreno-Ocampo left unresolved in his April 2012 “update” [PDF] on the situation in Palestine. In a much criticized, two-page document, the then-prosecutor claimed it would be beyond the power of OTP to resolve the statehood question, and that the OTP should take its cue on the matter from “the relevant bodies at the United Nations” or the ICC’s Assembly of States Parties.

With the November 2012 General Assembly vote, the statehood hurdle has now been crossed; yet prospects for an ICC investigation seem uncertain at best. The Court’s new Prosecutor, Fatou Bensouda, has been consistently non-committal about the potential effect that a positive decision regarding Palestinian statehood might have. Prior to the November vote, Bensouda noted that a change in Palestine’s status would only prompt her office to “revisit what the ICC can do.” This statement is fairly apt; as things currently stand, whether the ICC can do anything at all is entirely dependent upon Bensouda.

The Mechanics of the ICC Process

Since the declaration at issue comes from a non-member state, the matter cannot advance at the ICC unless the prosecutor asks the court’s Pre-Trial Chamber to authorize an investigation. Before she can do that, Bensouda must first conclude that “there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed.”

According to the ICC Pre-Trial Chamber, the question of whether a crime falls within the jurisdiction of the court is a broad one. The crime must not only be of the type the ICC is authorized to prosecute; the court must also have temporal and personal or territorial jurisdiction. Following this pronouncement, both times that the prosecution has requested authorization to initiate an investigation, in the situations in Kenya and the Ivory Coast, the prosecution supplied the court with the reasons that supported its belief that the ICC had territorial jurisdiction at the time that the alleged crimes were committed. This comprehensive approach to the question of jurisdiction has its merit. Indeed, as Bill Schabas has observed, it would be illogical for the prosecutor to seek investigatory permission based solely on subject matter jurisdiction if she will be ultimately unable to proceed because additional jurisdictional markers are lacking.

Following existing precedent, if the prosecutor requests authorization to conduct an investigation into the war crimes allegedly committed during Operation Cast Lead, she would need to do more than simply refer to the UN Fact Finding Mission on the Gaza Conflict’s report detailing those crimes. She would also have to provide a reasonable basis for the belief that Palestine was a state at the time of the conflict during 2008 and 2009, and that the Gaza Strip then comprised a part of the state’s territory.

The latter issue is seemingly less contentious. Even the US, by abstaining from Security Council Resolution 1860, has implicitly accepted that the Gaza Strip “will be a part of the Palestinian State.” The very language of that 2009 resolution, however, suggests that the court lacks temporal jurisdiction over the crimes committed during Operation Cast Lead. At best, this means that whether Palestine was a state from 2008 to 2009 remains uncertain.

Predicting the Prosecutor’s Decision

In all probability, the ICC prosecutor will be reluctant to determine the point in time at which Palestine became a state. In fact, Bensouda is likely to perceive a number of advantages to concluding that it is beyond her remit to do so. By rejecting the role of arbiter of the characteristics of the Palestinian state, she renders herself incapable of making a final determination regarding the fate of the 2009 declaration. This effectively tables the matter for the time being, an outcome likely to generate less backlash than either requesting authority to investigate or finding that there is no reasonable basis for an investigation.

Doing nothing has additional practical benefits as well. It leaves the Palestinians with leverage regarding future Israeli conduct, in particular, the proposed expansion of Jewish settlements from Jerusalem to the West Bank. At the same time, doing nothing also means that the prospect of the Court’s exercising jurisdiction over the occupied territories, a move currently opposed not only by the US and Israel, but also by a number of key European countries, is likewise placed on hold. Indeed, the Palestinians themselves appear to presently favor the do-nothing approach, ostensibly because moving forward could come at the price of “the most effective outcome,” but, perhaps, also because the Palestinians recognize their own vulnerability to ICC prosecutions should an investigation take place.

Megan A. Fairlie is Assistant Professor at Florida International University College of Law, where she is an expert in international criminal law and procedure and the International Criminal Court. In 2007, she earned a PhD in International Human Rights Law from the National University of Ireland, Galway and has taught at the Irish Centre for Human Rights’ Summer School on the International Criminal Court.

Suggested citation: Megan A. Fairlie, Palestine’s Upgraded Status and the International Criminal Court, JURIST – Forum, Jan. 22, 2013 http://jurist.org/forum/2013/01/megan-fairlie-palestine-icc.php