After a long process, various options are still open for Palestine with respect to joining the ICC.
The recent conflict in the Gaza Strip has once again brought to the fore debates on the Israel-Palestine conflict and the International Criminal Court (ICC), which have been simmering away ever since the Palestinian Authority (PA) lodged an ad-hoc declaration with the ICC five years ago in an attempt to give the court jurisdiction in the Gaza Strip following Israel’s “Operation Cast Lead” without also becoming a party to the Rome Statute. During that conflict, the United Nations established a Fact-Finding Mission chaired by Justice Richard Goldstone. On a visit to Gaza, the mission found evidence of egregious violations of international human rights and humanitarian law, including war crimes and possible crimes against humanity committed by Israel and Hamas, although nothing came of the report after it was buried by Palestinian President Mahmoud Abbas in the United Nations Human Rights Council on account of pressure from Israel, the United States, and its European allies.
President Abbas need not have worried though, as it took the ICC nearly three years to decide whether it could give effect to the declaration lodged by the PA’s minister of justice in 2009. While the Office of the Prosecutor deliberated, Mr. Luis Moreno-Ocampo, the ICC’s prosecutor, invited individual submissions from the PA, distinguished jurists, and civil society organisations to explain whether they believed the ad-hoc declaration lodged by the PA met statutory requirements, as only states can lodge ad-hoc declarations with the court. In the end, the arguments all came down to the same issue: is Palestine a state?
In April 2012, Mr. Ocampo finally came to a decision. After all the excitement, he decided that his office was not the appropriate body to determine whether Palestine was a state capable of lodging a declaration with the court. Being a “state” is a precondition to the exercise of jurisdiction by the ICC, as only states can become party to the Rome Statute, the founding treaty of the court. In light of the fact that Palestine had applied for membership in the UN, where the Security Council was deadlocked, Mr. Ocampo suggested that it would be more appropriate for UN Secretary-General Ban Ki-Moon to offer guidance on Palestine’s status, and, in case of doubt, the matter could then be deferred to the UN General Assembly (UNGA). Mr. Ban Ki-Moon did not follow Mr. Ocampo’s advice, but President Abbas did.
In his April 2012 decision, Mr. Ocampo did not appear to take into account Palestine’s acceptance as a full member in the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in October 2011, a move that was significant because only states can become members of the UN Specialised Agencies. Support for the Palestinian cause in the UNGA and in the political bodies of the UN where the US and its allies do not have veto powers have always been strong. President Abbas was confident, therefore, that the UNGA would accord Palestine observer state status in the United Nations. It did so on 29 November 2012.
Since then, President Abbas has continued, albeit cautiously, to take steps that only states can make. After the latest round of peace talks between Israel and the Palestine Liberation Organization (PLO) collapsed in April 2014, Palestine acceded to over a dozen treaties on human rights and humanitarian law, further buttressing Palestine’s claim that it is a state, as only states can sign, ratify, and accede to treaties. While these treaties have all been accepted by their depositaries, Canada, Israel, and the US have protested to the depositaries that Palestine is not qualified to accede to these treaties because in their view it is not a state.
In its Report on Preliminary Examination Activities for 2013, the Office of the Prosecutor explained that it had studied the UN resolution that conferred observer state status on Palestine on 29 November 2012 and that it was waiting for President Abbas to either lodge a new ad-hoc declaration with the Registry or submit an instrument of accession to the UN secretary-general, who acts as the depositary for instruments of accession to the Rome Statute. The prosecutor’s office explained that the November 2012 UNGA resolution that accorded Palestine non-member observer state status did “not cure the legal invalidity of the 2009 declaration” but that Palestine’s status in the UNGA “is of direct relevance to the issue of the court’s jurisdiction”. Consequently, for the ICC to determine whether it has jurisdiction, President Abbas, or another senior Palestinian official, would need to unequivocally confer jurisdiction on the court. As the ICC’s new prosecutor, Mrs. Fatou Bensouda, explained in an editorial in the Guardian newspaper, the decision to give the ICC jurisdiction is for Palestine’s political leaders to make. “I cannot make it for them”, she wrote.
The ad-hoc declaration that the PA’s minister of justice submitted to the court’s Registry in 2009 was not just invalid, however, it was also controversial because it attempted to grant jurisdiction to the court on 1 July 2002, when the Rome Statute entered into force. Because the Rome Statute permits states to give the ICC retroactive jurisdiction, if the prosecutor were to conclude that the ICC had jurisdiction from 1 July 2002, many people in Israel and Palestine could be at risk of being investigated. While Palestine would have to be a state in order to accede to the Rome Statute, it is not clear whether Palestine would also have to show that it was a state on 1 July 2002 in order to give the ICC jurisdiction for a crime that had been committed on its territory since then. It might be possible to argue in submissions before the court (assuming the issue came before court) that since a new state can have individuals prosecuted for genocide, war crimes, and crimes against humanity under customary international law even before it became a state, as was argued, for example, in the famous Eichmann case in Israel, the ICC should also be able to prosecute crimes that occurred on the territory of a state party before it became a state, if a state lodges a declaration to this effect.
There are various options open to President Abbas with respect to joining the ICC. He could submit a similarly worded declaration to the ad-hoc declaration that the PA’s minister of justice lodged with the ICC’s Registry in 2009, albeit on letterhead with the “State of Palestine” rather than the “Palestinian National Authority”. Alternatively, he could choose to simply accede to the Rome Statute by submitting an instrument of accession to the UN secretary-general without also submitting an ad-hoc declaration. Or President Abbas could submit an instrument of accession to the UN secretary-general concurrently with a new ad- hoc declaration. Or he could submit an instrument of accession to the UN secretary-general and an ad-hoc declaration at a later date.
If President Abbas intends to submit an ad-hoc declaration, he may want to consider backdating it to 29 November 2012, the date when the UNGA conferred observer state status on Palestine, or to 31 October 2011, the date when Palestine became a member of UNESCO, or to 23 September 2011, the date when Palestine applied for membership of the UN. Of course, the United States, Israel, and many members of the European Union would oppose any such attempt, whether an ad-hoc declaration was backdated to 2002, to 2011, or to 2012. In fact, they explicitly warned President Abbas at the UNGA on 29 November 2012 not to do this.
In light of this opposition, President Abbas would find it easier to accede to the Rome Statute without also submitting an ad-hoc declaration because it would be forward-looking: the ICC would then only have jurisdiction on the first day of the month after the 60th day following the deposit by Palestine of its instrument of accession with the UN secretary-general. This would mean that Israel and Hamas would not face any charges unless they commit genocide, war crimes, or crimes against humanity after the instrument of accession takes effect. This would also mean that the ICC would not be able to examine crimes that took place during the recent conflict in the Gaza Strip unless Israeli soldiers and Hamas fighters implicated in war crimes have dual nationality. In this case, the ICC would only have jurisdiction if the accused are also nationals of a state party to the Rome Statute and if the courts of the state party where these individuals are also nationals have started investigations but are unwilling or unable to prosecute.
The advantage of accession over submitting another ad-hoc declaration without accession is that Palestine would be entitled to seek judicial review should the prosecutor exercise her discretion not to proceed with an investigation. The problem with ad-hoc declarations is that the prosecutor is not obligated to open an investigation. She could just sit on the case. Remember, it took Mr. Ocampo almost three years to announce that his office was not the appropriate body to decide whether Palestine is a state. Accession to the Rome Statute would allow Palestine to request that the prosecutor open an investigation with respect to a crime that appears to have been committed in the event that she does not do so on her own initiative.
There is one final issue that President Abbas should be aware of. The Rome Statute allows the UN Security Council to prevent the prosecutor and the court from opening an investigation and exercising jurisdiction by passing a Chapter VII resolution at 12-month intervals. This provision was added to the Rome Statute in 1998 in the knowledge that the pursuit of justice must sometimes give way for sensitive political negotiations. It could be argued before the Security Council that the demands for peace in the Middle East outweigh the demands of justice and that involving the ICC at a critical juncture of the Israel-Palestine dispute will diminish the prospects of peace. This would be Israel’s argument, although the Palestinians would point to 20 years of fruitless negotiations.
Nonetheless, President Abbas would be wise to take into account the views of his friends and allies when he decides the time is right to join the ICC if only to ensure that the UN Security Council does not intervene. Whilst the Security Council cannot prevent Palestine from becoming a party to the ICC, it can prevent the prosecutor and the court from proceeding with an investigation even when the ICC has jurisdiction. Therefore, President Abbas will need to ensure that at least one of the five permanent members of the Security Council is willing to veto (or threaten to veto) any resolution that might try to defer an investigation or prosecution in the event that such a resolution is introduced in the Security Council.
Victor Kattan is a post-doctoral fellow at the Law Faculty of the National University of Singapore and a policy advisor to Al-Shabaka, The Palestinian Policy Network. He was previously a legal adviser to the Palestinian Negotiations Support Project in Ramallah on secondment from the United Nations Development Program (UNDP) in Jerusalem. Kattan is the author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (London: Pluto Press, 2009) and is the editor of The Palestine Question in International Law (London: The British Institute of International and Comparative Law, 2008).
The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.