Palestine’s ICC Option and the Politics of Peace

Israeli and Palestinian negotiators resumed talking this summer after a three-year break, in pursuit once more of a mutually-satisfactory political settlement. But the renewed talks, supported by the United States, have left one issue carefully on the sidelines: the status of a 2009 move by the Palestinian National Authority that envisaged a possible investigation of alleged Israeli war crimes by the International Criminal Court.

Some commentators have explicitly surmised that shelving the ICC option was a precondition for the resumption of negotiations. There remains, however, at least one potential for complication: Can the ICC Prosecutor open an investigation on her own volition?

The saga dates back to January 2009, when the Palestinian National Authority submitted a declaration accepting the ICC’s jurisdiction retroactive to July 1, 2002, the date the Rome Statute establishing the ICC came into force. While the declaration made no reference to any specific events, it directly followed Operation Cast Lead, an Israeli military campaign on the Gaza Strip that killed hundreds of civilians and displaced thousands more.

It took the Office of the Prosecutor (OTP) three years to decide to not decide what to do. In April 2012 the OTP said that it was unclear whether Palestine was a “state,” as required by the Rome Statute. It concluded that if, in the future, the relevant bodies settled the matter of Palestinian statehood, it could consider allegations of crimes committed there.

Then, in November 2012, the UN General Assembly (UNGA) upgraded Palestine’s status to “non-member observer state.” Three months later, the Palestinian foreign minister announced that the Palestinians would be seeking an ICC investigation against Israel. Aside from some talk, however, nothing happened.

So where does this leave us? Did the UNGA vote automatically enable the ICC to move forward, or must Palestine reissue a declaration to establish jurisdiction?

Statements from the OTP are split. In April 2012, then-Prosecutor Luis Moreno-Ocampo said that “as soon as the General Assembly establishes that Palestine is an observer state, then we can proceed.” This suggests that the vote was sufficient in itself to spark an investigation. However, the new prosecutor Fatou Bensouda said that “the ball is now in the court of Palestine,” and that after the vote the court is “waiting for them” to return. This implies that some additional activity on the part of Palestine is required to move the ICC machinery into action.

If Palestine wasn’t sufficiently recognized as a state at the time of the 2009 declaration, its legal effects can either be interpreted as entirely null and void, or as merely suspended pending Palestine’s status determination. If it’s the latter, then after the UNGA vote, the declaration remains in effect, and the ICC has jurisdiction.

The answer depends on the queston of the retroactivity of recognition of a state or government, a well-established principle of international law. In his foundational “Recognition in International Law” in 1947, Hersh Lauterpacht (a future Judge at the International court of Justice and member of the UN International Law Commission) wrote that “[r]ecognition is retroactive in the meaning that, once granted, it dates back to the actual commencement of the activities of the recognized authority, with regard to international rights and duties.” The 1951 treatise “The International Law of Recognition” states clearly that “[t]he wide adoption of the doctrine of retroactivity by national courts is substantial proof of its acceptance as a doctrine of international law.” It may be seen as a necessity of stability, or one of mere convenience, but without the principle of retroactivity all prior acts of a newly recognized government would confer no title, and any political transition would constitute a blank slate. 

Therefore, declarations by Palestine are valid at least as far back as 1988, when the majority of states voted in the General Assembly to acknowledge the proclamation of the State of Palestine. At that time—and definitely by 2009—there existed an executive authority capable of making declarations and entering into international agreements. Considering the overwhelming pre-vote recognition of Palestine by other states and many international organizations, the 2012 UNGA vote should be seen as a mere formality recognizing Palestine’s already-established political status.

Of course, even if the prosecutor is authorized to open an investigation, that’s not to say she will. The OTP would likely face heavy criticism if it were to enter into a fragile, highly politicized situation. It has even been suggested that the court would suffer funding cuts from European funders if it moves forward. It’s also possible that, even if expectations for the talks are low, the OTP should see how the negotiations play out. On the other hand, however, in order to maintain its beleaguered credibility, the ICC must stay—or at least appear to stay—above the political fray. Initiating an investigation would signal that, instead of simply acting on a referral from one side or the other, the prosecutor is pursuing an impartial investigation.

Regardless, if and when any investigation commences, justice for both Palestine and Israel should be as neutral and decontextualized from the political wrangling as possible. But in the meantime, it seems likely that the search for a lasting peace settlement will trump all other considerations. 

2 Comments

The actual reason that this option is not being more aggressively pursued by the Palestinian Authority is that they have been put on notice from Israel that any investigation would also be required to focus on war crime violations from the Palestinian side. This includes indiscriminate shelling, purposeful civilian targeting, suicide bombings, indoctrinating children into terrorism, utilizing hospitals and mosques and other civilian areas for weapons and fighter shielding...and so on. These tactics were and are still core to the Palestinian modus operandi and are not what they seek to have exposed to the light of an actual impartial investigation. It is much easier and actually more effective, from a PR perspective, to make public accusations and demands for trial, then to actually go through one.

War crimes originating from both sides must be investigated via independent observers, Amnesty International reporters documented US supplied bombs, including phosphorous bombs having been used by Israel against civilian Gaza people, including an UN school. Then we had heard rumors of Palestine terrorist having been stationed at school. If so, both parties are equally criminal in the way children lives had been placed under risk.
Yes Israel has a right to defend itself from terrorist actions, indiscriminate shelling, yet it has an obligation to do so within human rights guidelines. It had failed over and over again. Bulldozering villages at the borders. continuously pushing their borders into Palestinian establishments, human rights abuses at the borders. Imprisonment of anyone they deemed dangerous without due legal process. Israel gov control nation's water and energy sources, sentencing Palestinian people to a life of poverty and hardship. Their olive groves get bulldozed, their fishing boat continuously get attacked due to fear of terrorism. Yes terrorism had turned into a international phenomena. Most nations committing crimes against humanity in the name of fighting against terrorism. Our conduct is on top of the list. Countless drone attacks killing civilians along with terrorist elements reported dangerous. Guatenama Bay imprisoners, torture, etc. Injustice breeds more injustice. Our unjustified, unilateral war in Iraqi is the worst organized act of terrorism. We killed more than one million people, started a never ending cycle of violence, yet we shook our hands clean, pointing our fingers at those barbaric Muslims who have been massacring each other, using the weapons we sell them. We used Shia minority against Sunni majority under monarchy. Sold it to our media claiming we were there to bring democracy to Iraq. More than 5000 of our young men and women died while we rained death n destruction in Iraq. Our Big Middle East project started with Cheney was to ensure Middle East borders are redrawn, so we have smaller defenseless nations at key points of oil industry. Little so to speak democratic nations controlled by big industry giants. Rockefeller vision of the world. Yes I watched Zeitgeist documentary. Part 3 explains it all. A few industry giants exploiting people, fueling racial, ethnic, religious polarization. We make lot of money by selling weapons to all minority rebel groups of terrorist inclinations. We present it internally as us helping "freedom workers", "bringing democracy, here and there. How come our press never reported our war crimes during Iraqi invasion. I had to follow BBC new to get the full scoop. Now the same oil n war industry supported GOP elected officials are trying to pull us into a war with Iran, who is supposedly building nuclear arsenal. Look at us, aren't we the biggest nuclear power, with a history of having used it, and with a history of unilateral wars. How about working towards nuclear disarmament globally?

Add your voice