Unfortunately, the ICC Doesn’t Work the Way Palestine Wants It To

by Kevin Jon Heller

According to this report in the Times of Israel, the Palestinian Authority would be willing to forego the ICC if Israel agreed to freeze its settlement activity:

RAMALLAH — A senior Palestinian official said Sunday that the first subject to be brought before the International Criminal Court at The Hague in the Palestinian Authority’s legal campaign against Israel would be settlement construction.

The official told The Times of Israel that land seizures in occupied territory constituted a clear violation of international law. Still, he noted that the appeal to the ICC would be withdrawn if Israel were to freeze settlement construction, and added that the Palestinian Authority had conveyed to Israel an official message to that effect, through Jordan and Egypt.

Unfortunately, the Rome Statute does not allow Palestine to pursue this kind of bargaining strategy. To begin with, now that Palestine has submitted an Article 12(3) declaration and ratified the Rome Statute, the Palestinian Authority (PA) has no say in what, if anything, the OTP decides to investigate. If the OTP wants to investigate only Hamas’s rocket attacks, it can. If it wants to investigate only Israeli and Palestinian crimes in Gaza, ignoring the settlements entirely, it can. If it wants to investigate the settlements but only after dealing with all of the crimes in Gaza, it can. The PA needs to understand that. If it wanted to ensure that the OTP investigated settlements, it needed to avoid ratifying the Rome Statute and submit an Article 12(3) declaration that was limited to the West Bank. I don’t think the OTP would have acted on such a declaration, but that route would have at least limited the OTP to accepting or rejecting the PA’s terms — the OTP would not have had jurisdiction to examine events in Gaza. Once Palestine ratified the Rome Statute, however, it lost even that limited control. Now investigative and prosecutorial decisions are in the hands of the OTP.

For similar reasons, the PA could not “withdraw… the appeal to the ICC” if Israel froze the settlements. The OTP could investigate and prosecute settlement-related activity even if the PA was completely opposed to it doing so. (Just as Israel’s opposition to the Court is legally irrelevant.) The PA could not even prevent the OTP from investigating settlement activity by immediately withdrawing from the ICC — its Article 12(3) declaration would still be in effect, and Palestine would remain a member of the Court for another year. At best such a dramatic act would simply force the OTP to make investigative decisions more quickly.

The ICC might have been an effective bargaining chip with Israel (and Israel’s client state, the US) before the PA submitted the Article 12(3) declaration and ratified the Rome Statute. Once the PA took those steps, though, its leverage ended. Now the fate of the investigation into the situation in Palestine lies solely in the hands of the OTP.


9 Responses

  1. Heller writes “Israel’s client state, the US”. I am compelled to ask, is he OK or did he perhaps make a mistake? Did Heller mean instead to write “Israel the the client state of the US”? If the latter, next time just slow down when writing these posts. It the former, well that defies restrained comment.

  2. I wrote that somewhat snarkily, but I did not make a mistake. When it comes to policy in the Middle East, Israel calls the shots, not the US. Indeed, we’ve seen time and again how impossible it is for any US official, elected or otherwise, to go beyond toothless criticism of Israel’s behavior.

  3. Am I missing something? The PA, under Art. 41(1), can request that the OTP investigate alleged violations of the laws of war in the West Bank or make an even more limited request to investigate alleged violations of GC arts. 49, 147; HC No. IV, Annex, arts. 46, 50, 55; and CIL reflected in the above and in the 1919 List of War Crimes adopted at the Preliminary Peace Conference, crimes #s 10 (usurpation of sovereignty during military occupation), 14 (confiscation of property), 17 (imposition of collective penalties) — if they have counterparts in Art. 8 of the Rome Statute.
    Yes, the OTP is able to investigate other matters proprio motu (Art. 15) — including alleged violations by Palestinians of the laws of war, crimes against humanity, or genocide otherwise within Arts. 6-8 of the Stat, including planning, authorizations, complicity within or emanating from within the area.

  4. sorry, 41(1) should read 14(1)

  5. It’s a common misconception here (the UK) that the victim of a crime can ‘press charges’ and thus dictate what or whom is prosecuted…looks like the PA think similarly..

  6. Jordan, Palestine referred the situation of alleged crimes (not only war crimes) committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” That includes any and all crimes. Under Rule 44(2) of the Rules of Evidence and Procedure, the Registrar will not accept an article 12(3) declaration unless it is for all article 5 crimes (that is, both sides’ crimes) “of relevance to the situation”. So Palestine could not – and in fact did not – refer only war crimes, or only alleged Israeli crimes. Kevin is right that only the Prosecutor will, in the preliminary investigation, choose the crimes – if any – to pursue further.

  7. Re:…[…] Does Palestine Really Have No Idea How the ICC Works? – OJ […]

    I’d question the reliability of the details of any reports from unnamed Palestinian sources in Sheldon Adelson’s Times of Israel. It’s a propaganda echo chamber whose main function is to portray the Palestinians in an unfavorable light, while advancing Benjamin Netanyahu’s political career.

  8. P.S. I apologize for confusing The Times of Israel with Israel Hayom. It is nonetheless still true that even the members of the liberal Israeli press tend to distort comments made by Palestinian officials and reframe them into the context of a more Zionist point of view. For example, instead of characterizing the current campaign as a bid for UN membership or a bid to end the occupation, many are still characterizing it as a bid for statehood.

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