• Palestinian President Mahmoud Abbas has signed the Rome Statute on behalf of Palestine, which will give the ICC legal jurisdiction to investigate allegations of war crimes in the occupied territories.
  • The extension of ICC jurisdiction to the Gaza Strip and West Bank may expose Palestinians to prosecutions as much as Israelis, for example over sustained rocket fire at Israeli civilian centres.
  • A series of allegations and counter-allegations brought to the court threaten to further embitter relations between the parties and create barriers to a future negotiated agreement, as well as miring the court in politically motivated cases.
  • For these reasons the US has strongly opposed the move, and in the past the UK has also called on the Palestinians not to take such action.

What have the Palestinians done?

  • In the wake of the failure of the Palestinian resolution at the Security Council, President Mahmoud Abbas has signed the Rome Statute on behalf of the State of Palestine. Palestine will likely become a full member of the court after 60 days. This will then give the International Criminal Court jurisdiction over the territory of the ‘State of Palestine’ and Palestinian nationals.
  • Abbas declared that their intention was not just to join the court but to bring cases against Israel, though he did not specify on precisely what matters and when. Third parties would also be able to bring accusations to the court of crimes committed in the territory of ‘Palestine’.

What are the diplomatic implications?

  • However, alleged crimes by Palestinians would also be subject to the jurisdiction of the court. Palestinian accession to the ICC could therefore lead to politically motivated allegations and counter-allegations which would further embitter relations between the parties and side-line negotiations indefinitely. This would also mire the court itself in political controversy.
  • Israel has threatened to respond to the Palestinian move but as yet no decisions have been taken. In the past Israel has responded to unilateral Palestinian moves by temporarily suspending the transfer of tax revenues and by announcing new settlement plans. The US Congress may also respond by withholding financial aid to the Palestinians.
  • The US has denounced Palestinian accession to the Rome Statute, with a State Department statement saying, “We are deeply troubled by today’s Palestinian action regarding the ICC,” and calling it an “escalatory step” which badly damages “the atmosphere with the very people with whom they ultimately need to make peace.”
  • In the past, the UK has also made it clear it was opposed to Palestinian accession to the ICC, or feared it could further undermine the possibility of a negotiated peace.
  • Israelis also point out that all the Palestinian unilateral attempts to gain recognition as a state or accede to international treaties are a clear breach of the Oslo Accords. The 1995 Interim Agreement between Israel and the PLO, of which the European Union is one of the witnesses, established that: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations.”

How will the ICC view the Israeli-Palestinian arena?

  • As a result of Palestine being accorded the status of a non-member state by the UN General Assembly in 2012, the ICC Prosecutor’s Office has indicated that Palestine can join the Rome statute. The 2012 UN resolution affirmed the right of the Palestinian people to self-determination in the “Palestinian territory occupied since 1967”, i.e. the Gaza Strip, East Jerusalem and the West Bank.
  • The ICC does not have jurisdiction over crimes in Israel because Israel has not ratified and acceded to the Rome Statute, though crimes committed by Palestinian nationals inside Israel may be covered.
  • According to 2014 ruling relating to the 2010 Mavi Marmara incident, the ICC regards the Gaza Strip as occupied territory, despite Israel’s 2005 withdrawal, placing additional obligations on Israel as an occupying power towards the civilian population.

What kind of cases might be considered?

  • The court would not consider small scale incidents, since the court only addresses cases which it considers of sufficient gravity to warrant its attention. For example, the ICC rejected a case brought by the Comoros relating to the 2010 Mavi Marmara incident for this reason.
  • The court cannot consider cases relating to events prior to its establishment in July 2002. It is unclear whether the court would consider matters that arose before Palestine was recognised as a state by the UN General Assembly at the end of 2012.
  • If allegations are brought relating to Operation Protective Edge in the Gaza Strip in 2014, they would likely meet the threshold with respect to gravity. The UN Human Rights Council has commissioned an inquiry led by Professor William Schabbas into Operation Protective Edge which is expected to issue a report in March, and could provide the basis for allegations being brought to the court.
  • Another issue which could be investigated is Israeli settlement policy, which the Palestinians claim breaches international laws of armed conflict. However, the court has discretion over whether or not to investigate and it is in question whether it would want to address so politically contentious a question.

Would the court’s jurisdiction be limited by complementarity?

  • A key issue for the court would be whether Israel’s own judicial authorities had competently dealt with accusations of war crimes. The ICC’s jurisdiction is limited by the issue of complementarity, which means that the court will only take action where no other competent legal authority has done so.
  • Israel has made public that it is holding internal investigations into the conduct of its forces relating to specific incidences during Operation Protective Edge. If the ICC prosecutor is satisfied with these investigations, then the ICC will not intervene.
  • In February 2013 the Turkel Commission (an Israeli public commission to examine the Mavi Marmara incident of 31 May 2010) issued its second report, on ‘Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law.’ The commission was chaired by former Israel Supreme Court Justice Jacob Turkel and included Lord David Trimble as one of two independent observers. Lord Trimble wrote in a letter accompanying the report, that whilst there was room for improvement, “taken as a whole, Israeli law and practice will stand comparison with the best in the world.”
  • However, the ICC Prosecutor, Fatou Bensouda, would have to make her own determination as to whether Israeli investigations into the issues brought before the court were sufficient.

How might ICC jurisdiction put Palestinians on trial?

  • An Israeli NGO, ‘Shurat Hadin – Israel Law Center’ has already requested the ICC investigate Palestinian President Mahmoud Abbas for his responsibility for rocket fire by armed groups affiliated to his Fatah faction during Operation Protective Edge. They brought the allegations on the basis that Abbas has Jordanian citizenship, and Jordan is a signatory of the Rome Statute.
  • Should the Palestinians attempt to bring a case against Israel, and should the court decide to investigate, it will also have to investigate the actions of all parties, both Israelis and Palestinians. Palestinian actions, such as the large scale indiscriminate firing of rockets from the Gaza Strip at Israeli civilian population centres would likely give grounds for investigation as a war crime.
  • This has been acknowledged publicly by Palestinian representative to the UN Human Rights Council, Ambassador Ibrahim Khraishi, speaking on Palestinian Authority TV on 9 July. He said the rockets fired from Gaza toward Israel are “each and every one a crime against humanity whether it hits or misses, because it is directed at civilian targets.” While he argued that settlements were also a crime against humanity, he challenged the idea that ICC prosecutions would be a one-way street, and said: “Many of our people in Gaza appeared on TV and said that the Israelis warned them to evacuate their homes before the bombardment. In such a case, if someone is killed, the law considers it a mistake rather than an intentional killing because [the Israelis] followed the legal procedures. As for the missiles launched from our side, we never warn anyone about where these missiles are about to fall or about the operations we carry out.” He concluded with a plea: “people should know more before they talk emotionally about appealing to the ICC.”