Israeli Law Firm Wants the ICC to Investigate the PA and Hamas

by Kevin Jon Heller

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.


After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.


Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?

5 Responses

  1. I guess you could add that cases aren’t brought against states (3rd para.) but only against individuals.
    Mispelled her name too, BensAda, not Bensouda, but that’s not a point of law.

  2. The author also wrote “the ICC can only hear a case against states that have accepted its jurisdiction.” What about the UN Security Council referring a situation to the ICC, regardless of whether the state on whose territory the crime was committed is a party to the Rome Statute?

  3. Proporio moto investigations still require the country in question to be a state party or have filed a declaration with regard to the relevant conduct. The entire thing is quite bizarre, and I would add has not clear official sanction.

  4. Palestine (the Palestinian Authority) has accepted the ICC jurisdiction by a declaration filed in 2009 and has been granted “non-member state” status by the UN General Assembly, while the Security Council has not taken a position in that regard. Thus, it is conceivable that the Office of the Prosecutor could take steps to open an investigation.
    3rd April 2012, the OTP deferred any actions to determine whether it has jurisdiction until the “relevant UN organs” have taken a position. So, nothing is going to happen soon.

  5. Do you write these kinds of posts whenever a supposedly incorrect international law article is written in a news outlet?

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