Palestine joins the ICC
On 2 January 2015,
On 6 January 2015, Ban Ki-moon, announced
that the Rome Statute “will enter into force for the State of Palestine on
April 1, 2015”, making
The Rome Statute defines offences – war crimes, crimes against humanity and genocide – for which individuals can be prosecuted by the ICC. Individuals of any nationality who commit one of these offences in Palestinian territories can be charged, tried and punished by the ICC, as can Palestinian nationals who commit these offences anywhere in the world.
In order to try an indicted individual, the ICC has to acquire custody
From what date can offences be prosecuted?
A key question is: will the ICC be able to prosecute
individuals for past offences or only for those committed after the Rome
Statute enters into force for
“the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State”
On the face of it, this means that the ICC can only
prosecute individuals for offences committed in Palestinian territories on or
after 1 April 2015 – and therefore, for example, Israeli military personnel can
not be prosecuted for offences committed during
However, Article 11.2 contains the rider: “unless that State
has made a declaration under article 12, paragraph 3”. A declaration of this kind is a mechanism
whereby a state which is not a party to the Rome Statute can accept the ICC’s
jurisdiction on a limited basis. The
Palestinian authorities have sought to take advantage of this rider by making
such a declaration on 1 January 2015 “declaring
This is not the first time that the Palestinian authorities
have attempted to grant the ICC jurisdiction by means of a declaration of this
kind. In January 2009, during Operation
Cast Lead, the first of
Since then, however, the situation
has changed dramatically – on 29 November 2012, the UN General Assembly voted
by 138 votes to 9 to grant Palestine observer rights at the UN as a
"non-member state". As a
result, the current Prosecutor, Mrs Fatou Bensouda, has decided that
The press release went on to explain:
“A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation …”
and there is no deadline for reaching such a determination. Rather:
“Depending on the facts and circumstances of each situation, the Office will decide whether to continue to collect information to establish a sufficient factual and legal basis to render a determination; initiate an investigation, subject to judicial review as appropriate; or decline to initiate an investigation.”
An essential first step has been taken, which may lead to an investigation and eventually to the indictment of individuals – but that may be years away.
A further point: the Palestinian declaration accepted ICC
jurisdiction from 13 June 2014, the date that Israel began a massive crackdown
in the West Bank after three Israeli teenagers went missing and were
subsequently found murdered. By
backdating the acceptance of ICC jurisdiction to this date, the Palestinian
authorities hope that it will be possible for the ICC to indict Israeli
security personnel for actions on or after that date, including during
But it is by no means certain that the Court will accept this backdating. As we saw above, when a state accedes to the Rome Statute, under Article 11.2 of the Statute the Court cannot try individuals for offences committed before the date of accession. In other words, no backdating is permitted when a state grants the Court jurisdiction by accession. This makes it far from certain that backdating will be permitted when a state grants the Court jurisdiction by a declaration. If not, the Court will only be able to prosecute individuals for actions on or after 1 January 2015, when the declaration was made.
What actions constitute a crime against humanity/war crime?
Article 7 of the Rome Statute lists the actions that constitute a crime against humanity. A key feature of such a crime is that it is an act “committed as part of a widespread or systematic attack directed against any civilian population”. Such acts include
Article 8 of the Rome Statute lists the actions that constitute “a war crime”. They include
and many, many more.
Transfer of civilian population into occupied territory
One of the latter, in Article 8.2(b)(viii), is
“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.
Obviously, this is of particular relevance in this case
because since 1967
“The territories situated between the Green Line … and the former eastern
Since successive Israeli governments have authorised the transfer of large numbers of Israeli citizens into territory east of the Green Line, there is very little doubt that war crimes, as defined by the Rome Statute, have been committed – and will continue to be committed for the foreseeable future, since it is inconceivable that any future Israeli government will cease this colonisation project voluntarily or that sufficient international pressure will be applied to make it cease.
In the light of this, there is a prima facie case that Israelis responsible for this colonisation project, including the present Prime Minister, are guilty of war crimes and it may be that Americans and others who provide funds for the project could be prosecuted for aiding and abetting their war crimes.
How does an ICC investigation/prosecution come about?
Under Article 14 of the Rome Statute, a state party “may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed” with a request that the Prosecutor begin an investigation.
(A “situation” of this kind may also be referred to the Prosecutor by the Security Council passing a resolution under Chapter VII of the UN Charter, as was done in respect of Darfur in Sudan in 2005 and of Libya in 2011 – and could have been done in respect of Palestine at any time since the Rome Statute came into force on 1 July 2002.)
The Mavi Marmara referral
It is worth noting here that in
May 2013, the Union of the
In November 2014, without opening an investigation the Prosecutor concluded that “there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court … were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the ‘Gaza Freedom Flotilla’ on 31 May 2010”. Nevertheless, she decided that “the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.
It is true that Article 17.1(d) of the Rome Statute requires a case to be “of sufficient gravity to justify further action by the Court”, but one is left wondering if the Prosecutor would have come to a different conclusion if the object of the complaint had been nationals of a powerless African state. It was the first time that a referral by a state party to the Prosecutor was rejected without an investigation being initiated.
Can an ICC investigation/prosecution be aborted/delayed?
Could the ICC Prosecutor decide
that the cases likely to arise from an investigation into
However, it may be possible for
(This delaying procedure would
not be possible with regard to ICC cases related to
There is another way in which an ICC investigation or prosecution can be deferred and that is by the Security Council passing a resolution to that effect. This is provided for under Article 16 of the Rome Statute, which states:
“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
So, indefinite deferral is theoretically possible, but it is unlikely that such a resolution would pass even once, since it needs at least nine votes in favour and no votes against from any of the five permanent members of the Security Council.
It was no surprise that Israel condemned Palestine’s decision to accept the jurisdiction of the ICC and it is imposing the usual punishment on Palestinians for doing so – it is refusing to hand over $127 million of tax revenue to the Palestinian Authority, revenue that it has collected on behalf of Palestine under the Paris Economic Protocols it signed in 1994 after the Oslo Agreement.
Chief Palestinian negotiator, Saeb Erekat, delivered
a perfect response to
It was no surprise either that the US criticised the Palestine’s decision, a State Department spokesman saying that the Palestinian action was “counterproductive”, that it “does nothing to further the aspirations of the Palestinian people for a sovereign and independent state” and “badly damages the atmosphere with the very people with whom they ultimately need to make peace”.
Some people may think that the non-violent Palestinian act of according jurisdiction to an international court is a good deal less damaging to the atmosphere between Israel and Palestine than Israel’s military assault on Gaza last summer during which 2,131 Palestinians including 501 children were killed (see UN OCHA report of 4 September 2014) – and the US didn’t utter a word of criticism about that.
At the time of writing, the
The EU has refrained from
“Recent steps taken by Palestinians and Israelis could aggravate the already tense situation on the ground and bring them further away from a negotiated solution.”
The “recent steps” were
20 January 2015