The ICC and Palestine: A Response

[David Davenport is a Research Fellow at the Hoover Institution]

In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.  Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).  Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.