There has already been a great deal of political commentary about the Palestinian decision to join the International Criminal Court. What about the legal issues?

Statehood

The last time the Palestinian Authority (PA) went to the ICC was in 2009, in the wake of Israeli Operation Cast Lead. At that time, the PA did not try to join the ICC. Rather, it tried to grant the ICC jurisdiction over “acts committed on the territory of Palestine since 1 July 2002.” The Rome Statute permits non-member states to grant such “ad hoc” jurisdiction. After three years’ delay, the ICC’s then-Prosecutor Luis Moreno-Ocampo declined jurisdiction because at that point “the relevant bodies at the United Nations or the Assembly of States Parties” had not determined that Palestine is a state. The “relevant bodies,” Moreno-Ocampo explained, are the UN’s Secretary-General, General Assembly, and Security Council.

Several things are different this time around. First, in 2012 the General Assembly upgraded Palestine’s status to non-member observer state status. Second, last summer the PA and Hamas formed a unity government, so – at least formally – the existence of separate and competing governments is no longer an obstacle to statehood. Third, this time around the PA has chosen to join the ICC as a member state, rather than granting ad hoc jurisdiction.

The question of whether Palestine is a state – a prerequisite to joining the ICC – could still be debated. After all, the Palestinian effort to bootstrap itself into statehood by joining international organizations backhandedly concedes that its statehood claim needs buttressing. The UN Security Council refused a 2012 Palestinian request to become a member of the UN. And of course, extensive and in some areas exclusive Israeli authority over parts of the West Bank mean that Palestine does not exercise all the functions of states. The PLO agreed to this divided authority in the 1995 Oslo accords.

Nevertheless, Palestine has cleared the hurdle that Moreno-Ocampo singled out in 2012: General Assembly recognition as a state. And more than 130 states recognize Palestinian statehood in their bilateral relations. The European Parliament voted recently to recognize Palestinian statehood. So did the British, French, Spanish, and Irish Parliaments, in votes that do not bind their governments. This past October Sweden became the second western European country to recognize Palestine (Iceland was the first).

Given this momentum toward recognition, it would be nearly unthinkable for ICC Prosecutor Fatou Bensouda to declare on her own authority that Palestine is not a state. After all, the UN General Assembly and 77 of the ICC’s own 122 members have recognized Palestine as a state. Theoretically, the admission of Palestine could be challenged before the ICC’s Pre-Trial Chamber if and when Palestine refers its situation to the Court and Bensouda requests authorization to open an investigation. It could also be rejected by a vote of the Assembly of States-Parties – although that is unlikely. But a unilateral threshold decision against Palestine by Bensouda would have no international legitimacy, and it is hard to imagine that she will make it. Palestine has successfully joined more than a dozen other treaties, including the Geneva Conventions and their Additional Protocols, which form the core of the Rome Statute’s own war crimes provisions. The PLO tried to join the Geneva Conventions in 1989, but at that time the Swiss Federal Council announced that it was not in a position to decide whether the PLO’s letter counted as an instrument of accession “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine.” Apparently that has changed. Bensouda’s own public statements leave little doubt that she thinks the General Assembly vote settled the issue.

The Relevance of Oslo?

But there’s another potential challenge to the ICC’s jurisdiction over Israelis, stemming from the 1993 and 1995 Oslo Accords. Politically, Oslo may be dead, but neither Israel nor the PA has abrogated the Accords. Oslo II’s partition of the West Bank into Areas A (full Palestinian control), B (Palestinian civil control and joint Palestinian-Israeli security control), and C (full Israeli civil and security control, except over Palestinians) still orders daily life in the territories. Area C includes the settlements, their environs, and roadways.

Under Oslo II, “Israel has sole criminal jurisdiction over … offenses committed in the Territories by Israelis.” (Annex IV, art. 1(2)). Palestine does have criminal jurisdiction over Palestinians and non-Israelis in Areas A and B. (Israel has full criminal jurisdiction over Area C.) But crimes committed by Israelis in Palestinian territory are, under Oslo, solely Israel’s to investigate and try. To see why that might matter, we must go back to ICC basics.

The United States has always objected to the idea that the ICC could prosecute conduct by nationals of non-member states: treaties bind only their parties. The response to this objection is that the ICC is merely exercising jurisdiction that its member states could exercise on their own. It is axiomatic that states have jurisdiction over conduct on their own territory. If a U.S. national commits a crime in another state’s territory, the United States has no complaint if that state puts the perpetrator on trial in its own courts. In effect, states that join the ICC delegate that function to the Court.

Some U.S. commentators responded that criminal jurisdiction is not something a state can delegate as it chooses. But 122 states from every region of the world have joined the ICC, powerful evidence that customary international law no longer supports the U.S. argument, if it ever did.

The implication for ICC jurisdiction over Israeli crimes in Palestianian territory is clear. The ICC operates on criminal jurisdiction borrowed from its members; but under Oslo II, Palestine has no jurisdiction over Israelis to delegate. Whether this somewhat arcane difficulty is merely a technicality that the Court will ignore remains to be seen.

Exposure

Under article 11 of the Rome Statute, “the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.” So if Palestine joins the ICC, Rome Statute crimes committed on Palestinian territory, or by Palestinian nationals anywhere, fall within the Court’s jurisdiction going forward.

Palestine would have to make a special declaration to extend ICC jurisdiction over past events. News reports indicate that Palestine will request that the court take jurisdiction back to June 13 of last year, to include the latest round of warfare with Gaza. This will clearly be a double-edged sword. One key point is that parties to the ICC cannot refer specific crimes to the Court. They refer entire “situations,” leaving it to the Prosecutor to investigate whatever crimes might have been committed and who committed them. Both sides would be under scrutiny. That means Hamas leaders could face charges for the war crime of indiscriminate attacks on civilians, alongside whatever exposure Israelis might face. Unlike Israel, which denies that it intentionally targeted civilians, Hamas and Islamic Jihad straightforwardly announced that they were targeting Israeli cities. (See the UN High Commissioner on Human Rights’ Report, ¶¶32, 34, 36.)

A second key point about the ICC is complementarity: the ICC can step in only if a state is unwilling or unable to investigate and prosecute cases on its own. Complementarity would offer Israel a large measure of protection from most war crimes charges. If Israel carries out its own investigations in good faith, it would be insulated from most liability – potentially, even if it never indicts anyone. And the Prosecutor would face a daunting uphill battle to try to prove bad faith. Israel has a sophisticated justice system, and its government recently adopted the Turkel Commission’s recommendation to beef up the independence and impartiality of military investigations of credible war crimes charges. To show bad faith (“unwillingness” in the language of the Statute), the Prosecutor would have to show that:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility …; [or] (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; [or] (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

This would be especially hard if the Israeli government refused to share information from its own investigations, which it would almost certainly do. Of course, all the same considerations would apply to Palestine. It could invoke complementarity if it were willing and able to investigate and prosecute crimes by Palestinians. Obviously, this could lead to immense political friction if the PA investigates the Hamas leadership for rocket attacks against Israel. Under those circumstances, if Hamas stonewalls the investigation, the ICC might find that Palestine is unable to fulfill its responsibilities, in much the same way that it found Libya unable to prosecute Saif Gaddafi.

Any attacks against Israel carried out by Palestinian nationals would be fair game for the ICC, because the Rome Statute grants nationality jurisdiction over the relevant crimes. And by joining the ICC, Palestine would commit itself to cooperating with investigations and prosecutions, including turning suspects and evidence over to The Hague if it comes to that. In this way, Palestine’s ICC membership could actually enhance Israeli security, by giving the Palestinian leadership incentives to curb attacks on Israel. If this came to pass, it would be an example of the ICC working as it is supposed to, as a deterrent to international crime.

But from an Israeli point of view, there is one big problem. Under the Rome Statute, “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is a war crime, and that exposes Israel to prosecution at least for future settlement activity on Palestinian territory. Israel will never investigate or prosecute its own leadership for settlement activity, so complementarity offers no protection. Israel has long asserted that in a legal sense it does not “occupy” the West Bank, because no other state had sovereignty over it. But it’s safe to say that outside Israel almost nobody takes this hair-splitting argument seriously. The International Court of Justice, at any rate, has declared that the territory is “occupied” — Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), ¶78.

One complication is that the transfer of civilian populations into an occupied territory is only a war crime in an international armed conflict. In her recent legal opinion rejecting a referral of Israel for the flotilla incident, Madame Bensouda assumed without deciding that Israel’s conflict with Hamas is international (see ¶16). She based this assumption on “the prevalent view within the international community … that Israel remains an occupying power under international law”; but the issue is far from settled.

What are the Territorial Boundaries of Palestine?

But a vexed question would come up in a potential war crimes charge based on settlements: what are the territorial boundaries of Palestine?

This may seem like an easy question: the General Assembly and the ICJ both agree that it is the Green Line, that is, the pre-1967 border established by the armistice agreement in 1948.

In fact, it is not an easy question, because the international legal instruments are more equivocal than that. All were drafted with future peace talks in mind, and all acknowledge that the boundaries might change through land swaps. The Armistice Declaration (Security Council Resolution 62) specifies that the Green Line should not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties”; it adds that the Green Line was drawn “without prejudice to future territorial settlements or boundary lines.”

Interpreting this language, the ICJ explains that “[t]he Demarcation Line was subject to such rectification as might be agreed upon by the parties” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ¶72). Even the 2012 General Assembly resolution says that the Palestinian state and Israel will live side by side “on the basis of the pre-1967 borders” (emphasis added). This phrase was obviously wordsmithed so that it wouldn’t foreclose land swaps, which nearly everyone agrees are essential to any two-state solution. In other words, all these documents leave the exact path of the boundary line to be determined by politics, not by international lawyers.

Land swaps would place some of the settlements inside Israeli territory, with Israel ceding land to Palestine in return. And that means there is some ambiguity about whether Israeli settlement activity would be “in” Israel or “in” Palestine. In the latter case but not the former, it would fall under ICC jurisdiction.

Obviously, it would depend on where the Israeli settlement activity takes place – for example, whether it involves moving additional Israelis into a long-established settlement rather than aggressively building in new territory. In practice, it might not be hard for the Prosecutor to draw such distinctions. But there are cases – especially in contested East Jerusalem neighborhoods – where demarcating the border for jurisdictional purposes would drop the Prosecutor into one of the world’s most flammable disputes.

What It Bodes for the ICC

Indeed, it’s pretty clear that opening a file titled “Situation in Palestine” is very high risk for the Court. It would open the Prosecutor’s every move to political backlash. Indicting leaders from either Israel or Palestine could suck the oxygen out of the Court’s other activities. On the other hand, Geoffrey Robertson speculates that the Court “may jump at the chance because it’s under fire,” adding that it would give the Court “an opportunity to get out of the endless African wars and to do something which is very much in the public eye, and very much of public importance.” My own guess is the opposite – that the Prosecutor will not welcome the opportunity, because it sets the Court up for failure and charges of politicization.

The Prosecutor’s office has endured two recent setbacks. Faced by Kenyan government intransigence and witness intimidation, Madame Bensouda had to close the Kenya case against President Uhuru Kenyatta for lack of evidence. And she has now put investigations in Darfur into a deep freeze, because of lack of any Security Council backing. Both these setbacks made crystal clear that the ICC can function properly only with political support from states and international institutions. It is a worthy institution doing invaluable work, but it is also fragile and dependent on state cooperation and assistance.

The last time Palestine went to the ICC it took the Prosecutor three years to respond. Expect even greater delays if there is a Palestinian referral.