The Prosecutor and “Palestine”

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.


Filed under International Criminal Law, News and Events, Public International Law

3 responses to “The Prosecutor and “Palestine”

  1. Kate

    It’s interesting to note that AI’s Marek Marczyński has called this a “dangerous decision” which “opens the ICC to accusations of political bias.”

    But it’s difficult to see how the Prosecutor could have had it otherwise, as deciding to open an investigation would have been extremely controversial especially within the institution itself I imagine. Indeed, as you indicate, it would have become an absolute quagmire. Not that that has stopped the ICC before…

    I am interested though in your observation that this is an issue that might best be left to the ICJ. I have in mind the Kosovo judgment, which was a pretty impressive ball-dodging exercise in that respect. How might it be different for Palestine, or do we need a third less controversial instance of disputed statehood to push the issue through?

  2. Dear Kate, Thank you for your comment.
    My reference to the ICJ was more of a way of indicating that the ICC is not a court of general public international law. It is designed (per its statute) to deal with issues of ICL. Judges are not selected based on their knowledge of PIL, but also on criminal law and procedure. They are then assigned to chambers accordingly. It would seem ill advised to have a criminal procedure lawyer decide such an important issue of general PIL.
    Whether the actual ICJ is up to the task of deciding on Palestinian statehood or not is something I will leave up to others to decide.
    As for a third less controversial instance, I am all ears on for any possibility. Personally, I think anything that is created will suffer either the same fate of the ICJ or be overly politicized in its decision. We are unfortunately left with sub-optimal choices, but you have to play the hand that you are dealt.

  3. Pingback: Preliminary Examinations at the ICC in 2013 | The {New} International Law

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