On 3 April 2012, the Prosecutor of the International Criminal Court (ICC) issued his decision on whether or not to conduct an investigation into the “Situation in Palestine”. He declined to start an investigation. The Prosecutor stated that it was not up to him to decide on whether or not Palestine is a State that can accept the jurisdiction of the ICC.
The “Government of Palestine” referred the situation in the Palestinian territories to the ICC pursuant to Article 12(3) of the Rome Statute in 2009. The Article sets out that a “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.” This of course begged the question of whether or not there is a State of Palestine that can accept the jurisdiction of the Court.
The Prosecutor, after receiving information and opinions from various sources, issued a statement that whether or not an entity is a “State” for the purposes of the Rome Statute is a decision in the first instance to be made by the Secretary General of the United Nations. Where he is unsure as the status of an entity, the Secretary General is to seek the opinion of the General Assembly of the United Nations. At the moment, Palestine is an “observer” and not a “Non-member State” of the UN. The Prosecutor also noted that the Assembly of States Parties could weigh in on the issue.
Given the complexity of the situation, the Prosecutor bowed out of making a determination on the “Stateness” of Palestine. This was likely the best of the poor options facing the Office of the Prosecutor. If he had accepted the referral of the Palestinian authorities of the situation in Palestine he would have opened that determination up to judicial review before the Pre-Trial Chamber. Worse yet, during those proceedings, Israel might have refused to participate leading to a one-sided litigation on the issue that would call its validity into question. There is also the problem of an international criminal court deciding on issues of general Public International Law such as the creation of States, an unsettled issue in any case. This issue is much better suited to arguments before a body such as the International Court of Justice.
Should a case arise out of the “Situation in Palestine” there would then be the problem of enforcement. Israel is not a party to the ICC. All the legal issues that have presented themselves in the prosecution of Sudan’s President Al-Bashir would present themselves all over again. The likely result would be a diplomatic explosion and few, if any, criminal prosecutions. On the other hand, the ICC would be in the position of reviewing Israeli criminal prosecutions and internal investigations into alleged crimes. This in and of itself would present a horrible diplomatic mess for the Court, Israel and her allies. The whole thing would likely turn into a circus with allegations that the prosecutions are nothing more than a witch-hunt.
The Prosecutor reached the right conclusion in bowing out of the Palestinian Statehood issue. It is a morass that would do nothing more than ensnare the Court and distract from its ongoing and important work.
The Prosecutor’s statement is available here.