JURIST Guest Columnist Linda M. Keller of Thomas Jefferson School of Law explores the potential impacts for the International Criminal Court of new Palestinian status at the UN in part two of this two-part series …

As discussed in Part I, the General Assembly resolution granting Palestine “non-member observer State” status raises difficult issues for the International Criminal Court (ICC). Any determination that a Palestinian declaration is valid is only the starting point. If we presume that the old declaration is effective or if a new declaration were filed, the first stage of preliminary examination would be passed, but other obstacles remain. The Office of the Prosecutor’s (OTP) earlier examination of the declaration cited Articles 13 and 53 of the Rome Statute. Article 13 refers to a state party or UN Security Council referral, or the opening of an investigation by the OTP with the approval of the Pre-Trial Chamber. If no state party were willing to provide a referral, then the prosecutor would need to trigger the investigation herself, perhaps leaving the statehood question to the Pre-Trial Chamber that must approve such a request. According to David Luban, the ICC would likely pass the statehood decision to the Assembly of States Parties, where investigation would end because of reluctance to accept Palestinian statehood as it relates to the Rome Statute. Yet there is no guarantee that the prosecutor would seek to open an investigation or that another State would refer the situation in Palestine in the first instance — a hurdle often overlooked.

Assuming that a preliminary examination goes forward, the OTP must also consider Article 53, which relates to prosecutorial discretion. The OTP must consider whether there is a reasonable basis that an ICC crime has occurred, whether a case would be admissible and whether the interest of justice would be served. Similar criteria apply to the determination of a basis for prosecution. These provisions are quite controversial.

First, the OTP must delve into whether the facts support a finding that a crime has occurred. The Goldstone Report indicated that crimes against humanity and war crimes likely occurred during Operation Cast Lead but apparently even Justice Goldstone has reconsidered that conclusion in light of additional information. Moreover, an outside finding does not guarantee the OTP could obtain evidence to support a finding of a reasonable basis for crimes, particularly if Israel does not cooperate. At the least, this endeavor would likely take substantial time.

Next, the prosecutor may determine that a case is inadmissible under Article 17 of the Rome Statute on any of several grounds. A case is inadmissible if it is being investigated or prosecuted or has been investigated with a determination that prosecution is not warranted by a state with jurisdiction, unless the state is unwilling or unable genuinely to investigate or prosecute. A case is also inadmissible if the person concerned has already been tried for similar conduct. Finally, the case is inadmissible if it is not of sufficient gravity.

Regarding Article 17, the OTP would examine whether the state (such as Israel) can effectively block prosecution at the ICC under the principle of complementarity: the ICC is not able to assert jurisdiction if a state with jurisdiction is genuinely able or willing to investigate, prosecute or decide not to prosecute. Finally, the OTP would have to examine the gravity issue, a concept that has led to criticism in the past, such as regarding the refusal to launch an investigation into crimes in Iraq. The cyclical and reciprocal nature of much of the violence between Israel and Palestine might further complicate the analysis of the gravity issue.

Furthermore, Article 53 allows the OTP to decline to investigate or prosecute if it would not be in the “interests of justice” — an undefined and controversial concept. Given the highly fraught, political nature of any investigation into Israeli (or Palestinian) crimes, and the emphasis on resolving issues such as boundaries via negotiation, the OTP may decline to go forward under Article 53.

If an investigation does go forward, other issues arise. As noted in Part 1, retroactive jurisdiction is an issue in terms of the scope of the investigation. In addition, there may be interpretative difficulty with the terms of the declaration, which refers to “the territory of Palestine.” What exactly is the territory of Palestine? While it would most likely include Gaza and the West Bank, jurisdiction over disputed areas is controversial. Moreover, David Luban has posited that the territory of Palestine might not include Gaza, because of its “separate and antagonistic government.” On the other hand, the resolution refers to pre-1967 borders, which might help provide some guidance for the ICC, despite criticism that the resolution is “contradictory and vague” on this matter.

It should also not be forgotten that the crimes in question are not necessarily limited to those committed by Israelis. The Palestinian declaration refers to “crimes committed on the territory of Palestine,” which would include war crimes committed by Palestinians, such as the deliberate targeting of civilians. Some commentators have noted that Hamas attacks on civilians might be easier to establish than Israel’s war crimes, though such claims are disputed, particularly in the context of Israeli settlements.

For example, Jennifer Trahan and Belinda Cooper note that “prosecutions of future Hamas crimes might proceed more easily than similar prosecutions of Israeli crimes.” Likewise, it can be argued that Israel has a better chance of blocking the case based on the aforementioned principle of complementarity. Israel has a track record of conducting at least some investigations into war crimes allegations and might undertake more if an ICC investigation seems probable. There seem to be few, if any, investigations of Hamas rocket fire into Israel. Thus, any OTP reconsideration of the declaration is itself a complex process that might not lead to an investigation or prosecution of Israelis or Palestinians. Furthermore, if an investigation or prosecution is considered a threat to international peace and security, the UN Security Council can ask the ICC to suspend investigation or prosecution under Article 16, though this seems unlikely given the power of veto-bearing members to block such a move.

Many media reports also refer to Palestine joining the ICC. If Palestine were to decide to become a state party to the Rome Statute, there might be issues with regard to statehood. Yet it seems more likely that the UN secretary-general would follow the lead of the General Assembly and the UN Educational, Scientific and Cultural Organization (UNESCO) in considering Palestine a state for the purposes of treaty ratification. If Palestine becomes a party to the Rome Statute, it could refer the situation in Palestine to the ICC — as could any state party. The jurisdiction of the ICC would cover not only crimes committed in the territory of Palestine, but any crimes committed by Palestinians worldwide. As noted above, the territory of Palestine might be controversial, but jurisdiction based on nationality should be less so, assuming the statehood of Palestine. In addition, there is uncertainty over the potential retroactivity of jurisdiction to certain dates prior to the General Assembly resolution. It is generally agreed, however, that any ICC investigation would likely encompass allegations of both Israeli and Palestinian crimes.

As Trahan and Cooper point out, Palestine as a state party would have a duty to cooperate with investigations and implement arrest warrants, while Israel would not have such a legal obligation. Palestine may come to regret a decision to join the ICC, particularly if it is asked to effectuate arrest warrants against Hamas militants.

In the end, the prosecutor might take the decision out of the hands of Palestinian officials by reconsidering the prior OTP decision in light of the General Assembly resolution and seeking to open an investigation. It seems more likely, however, that the prosecutor will not be eager to dive into the fraught political controversy between the Israelis and Palestinians. In particular, commentators have pointed out that the settlement issue is one that should be decided politically, rather than by the ICC, as “even the Palestinians concede that some settlements will be on the Israeli side of a future boundary.”

Many commentators have warned Palestine of the dangers of pursuing its declaration or joining the ICC. Moreover, the Palestinians are facing continued pressure from states not to go to the ICC. The US Senate, for example, is reportedly considering legislation that would eliminate aid and close diplomatic offices of the Palestinians if the Palestinians push for ICC action. In light of these pressures it is possible that Ambassador Christian Wenewaser is correct in interpreting the Palestinian statements as tactical position rather than an immediate action plan.

Even if Palestine does go forward with a new declaration aimed at Israeli settlements, that is only the first step. There are many potential obstacles that may delay or derail any ICC investigation or prosecution into alleged crimes on the territory of Palestine. Anyone anticipating the General Assembly vote to trigger swift action, or a clear resolution to issues of Palestine and the ICC, is likely to be disappointed.

Linda M. Keller is Associate Professor at the Thomas Jefferson School of Law in San Diego, California. She served as a Visiting Professional at the International Criminal Court during the 2011-2012 academic year and is an expert on international criminal law and human rights.

Suggested citation: Linda M. Keller, The International Criminal Court and Palestine: Part II, JURIST – Forum, Feb. 5, 2013, http://jurist.org/forum/2013/02/linda-keller-palestine-icc-part2.php