International Criminal Court's jurisdiction in Palestine

From Palepedia

Palestinian efforts to solicit the International Criminal Court into investigating Israeli war crimes committed within the internationally recognized borders of the State of Palestine have a long and complicated history. It has taken several attempts for the ICC to officially recognize its own jurisdiction over war crimes committed on Palestinian territory, largely as a result of Israeli and American political interventions in an attempt to avoid ICC investigations into Israel for the war crimes it has committed against ethnic Palestinians since 1948.

As Israel is not a signatory to the Rome Statute, the ICC does not have automatic jurisdiction to investigate or prosecute war crimes committed by Israeli officials or Israeli nationals, regardless of their gravity and/or how many other countries refer these crimes to the ICC for investigation. As such, Palestine has engaged in lengthy multi-year efforts to get the ICC to find that it has the legal jurisdiction required to prosecute war crimes committed by Israel on Palestinian soil. As of 2024, these efforts seem to have been validated.

Background[edit | edit source]

The International Criminal Court is an international criminal tribunal, independent from the United Nations, established under the charter of the Rome Statute as an independent judicial body headquartered in The Hague, Netherlands (which is why the ICC is often referred to as The Hague). It was established to provide a non-partisan international venue where serious crimes (such as genocide, war crimes, crimes against humanity, and "the crime of aggression") could be referred so the subject of a referral could be investigated, and if the investigation findings warrant, subsequently charged, arrested, tried, and (in the case of a guilty verdict) sentenced.[1] The ICC does not adjudicate between nations and is only empowered to pursue charges of alleged violations of the Rome Statute against individual perpetrators (and their collaborators).

Jurisdiction[edit | edit source]

Unlike the Genocide Convention, which largely applies to all recognized members of the United Nations, the ICC only has explicit jurisdiction over countries that have signed and ratified the Rome Statute, which expanded on the general prohibition against war crimes established in the Genocide Convention and gave the ICC the authority it required in order to prosecute war crimes as laid out in the Statute. Israel and the United States are both countries that have signed but not ratified the Rome Statute and have thus not given explicit authority and jurisdiction for the ICC to prosecute war crimes they have committed or war crimes committed on their territory.[2]

While the ICC does not have automatic jurisdiction over crimes committed by non-signatory states, its jurisdiction automatically extends to crimes committed on the territory of a different country that is a signatory to the Rome Statute. In an effort to hold Israel accountable for its numerous war crimes, Palestine engaged in extensive efforts to ensure the ICC would have jurisdiction to investigate war crimes committed on Palestinian soil or against Palestinian nationals

Palestine, however, is a signatory to the Rome Statute and has repeatedly given the ICC jurisdiction over any war crimes committed on internationally recognized Palestinian territory both by Israel or by any of the Palestinian resistance factions, the ICC has found that it has jurisdiction over Israeli war crimes and acts of aggression carried out in the West Bank and the Gaza Strip, though it has shown great reluctance in pursuing charges against Israeli officials for their role in these crimes.

Palestinian efforts for ICC jurisdiction[edit | edit source]

Palestine had previously (unsuccessfully) attempted to get the ICC to investigate war crimes committed by Israel on different occasions. After the cessation of hostilities in Israel's 2008-2009 war on Gaza ("Operation Cast Lead"), American human rights lawyer Francis Boyle, who was involved in developing the indictment against Slobodan Milošević for genocide, war crimes, and crimes against humanity in Bosina, advised Palestinain Authority President Mahmoud Abbas to file a declaration with the ICC under Article 12, Paragraph 3 of the Rome Statute, accepting the ICC's jurisdiction over any and all war crimes committed in the Palestinian territories from July 1, 2002 onward.[3] In 2012, over three years later, ICC Prosecutor Luis Moreno Ocampo declared the petition invalid because the Rome Statute only permits "States" to make such a declaration while Palestine was only afforded "observer entity" status within the United Nations at the time.[4] Boyle considers this rejection from the ICC to be politically motivated and legally baseless.

Later that year on November 29, 2012, Palestine achieved full state recognition in the UN (as a non-member observer state)[5][6] over the strenuous objections of both Israel and the United States,[7] but the ICC ruled in November 2013 that this recognition did not "cure the legal invalidity" of the 2009 petition for an ICC investigation.[8] Palestine Minister of Justice Saleem Al-Saqqa and General Prosecutor Ismaeil Jabr then attempted to file a new declaration with the ICC in June of 2014, but the ICC rejected the petition on the grounds that only the head of state, head of government, or minister of foreign affairs may file such a declaration giving the ICC jurisdiction. According to an Aljazeera investigation, the ICC, which had by then transitioned to the leadership of Fatou Bensouda,[9] was unable to obtain such confirmation that the declaration was being made on behalf of the Palestinian government after sending an inquiry to the then-Palestinian Minister of Foreign Affairs, Riyad Al-Maliki, and as such, rejected the petition.[10]

It was later confirmed in 2014 that PLO President Abbas came under fire from within his own party for dragging his feet with the ICC application, at the time claiming that he had concerns an ICC application would open up Palestinian militias to investigation.[11] However, Hamas had already made a public appeal to Abbas in June of 2014 to apply for ICC jurisdiction and for an ICC investigation into war crimes committed in Palestine.[12] In August of 2014, in response to Abbas's alleged concerns for Palestinian militias, Hamas, Palestine Islamic Jihad, Fatih, the Popular Front, and other resistance parties signed a document backing Palestine's application for ICC jurisdiction.[13][11][note 1]

On January 1, 2015, a third declaration accepting ICC's jurisdiction for war crimes committed in the Palestinian territories, this time covering crimes from 13 June 2014 onward, was then submitted by the Palestinian government to the ICC.[17] Palestine also acceded to the Rome Statute (among other international treaties) on January 2, 2015,[18] with Bensouda accepting Palestine's declaration and its status as a state party and almost immediately opening an preliminary war crimes investigation.[19] Palestine became a full member of the ICC in April of 2015,[20] and the preliminary investigation turned into the ICC's formal 2021 investigation into war crimes and genocide in Palestine.[21]

Threats and repercussions[edit | edit source]

Palestine became a member of the ICC in January 2015 and asked the Court for an investigation into crimes it alleged Israel committed during the 2018 Israel war on Gaza.[22] In response, US National Security Adviser John Bolton threatened to unleash sanctions on The Hague and any country aiding the ICC in an investigation into US or Israeli officials, saying "If the court comes after us, Israel, or other US allies we will not sit quietly. [..] We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead. [..] We will not allow the ICC or any other organization to constrain Israel’s right to self-defense."[23] The United States closed the Palestinian diplomatic mission in Washington DC as punishment for its request to the ICC for an investigation and the 2018 ICC case has never progressed past the preliminary investigation stage.[23]

Notes[edit | edit source]

  1. ↑ As of August 23, 2014, Palestine Islamic Jihad had not signed the document in question and in 2021, Ha'aretz claimed that PIJ never signed;[14] however a 2015 Ha'aretz article quotes a Palestinian source as saying "leaders of Hamas and Islamic Jihad had declared they were willing to risk being tried at the ICC as long as it discusses Palestinian allegations about Israeli war crimes," before adding "Erekat had Palestinian leaders sign a declaration stating they agreed to turn to the ICC [..] The Islamic organizations also signed."[15] Furthermore, Abbas had indicated that he would not proceed with an ICC application without all groups signing.[16]

References[edit | edit source]

  1. ↑ "What is the International Criminal Court (ICC) and what is its relationship with the UN?". Dag Hammarsköld Library. United Nations. Retrieved 27 November 2023.
  2. ↑ Claire Klobucista; Mariel Ferragamo (2023-07-24). "The Role of the International Criminal Court". Council on Foreign Relations. Retrieved 27 November 2023. China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey. Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States.
  3. ↑ "Declaration by the Palestinian National Authority Accepting the Jurisdiction of the International Criminal Court" (PDF). International Criminal Court. 2009-01-21. Retrieved 2023-12-03.
  4. ↑ "Prosecutor's Update on the situation in Palestine" (PDF). International Criminal Court. 2012-04-03. Retrieved 2023-12-03.
  5. ↑ "Palestine: What is in a name (change)?". Aljazeera Inside Story. Aljazeera. 8 January 2013. Archived from the original on 9 January 2013. Retrieved 8 June 2014.
  6. ↑ "Q&A: Palestinians' upgraded UN status". BBC News. 2012-11-30. Retrieved 2023-12-03.
  7. ↑ Lauria, Joe (2012-11-14). "World News: Palestinians Set U.N. Vote, Defying U.S., Israel". Wall Street Journal. p. 13. Retrieved 2023-12-03 – via ProQuest.
  8. ↑ Office of the Prosecutor of the ICC (2013-11-25). "Report on Preliminary Examination Activities 2013" (PDF). International Criminal Court. Archived (PDF) from the original on 2014-08-13.
  9. ↑ Fatou Bensouda (2014-07-29). "The truth about the ICC and Gaza". The Guardian. Retrieved 2023-12-03.
  10. ↑ "Is the PA stalling Gaza war crimes probe?". Al Jazeera. 2014-09-12. Retrieved 2014-10-11.
  11. ↑ 11.0 11.1 David Hearst (2015-02-15). "Exclusive: Hamas pushes Abbas to join ICC". Middle East Eye. Retrieved 6 December 2023. A tape in which Erekat criticised Abbas's refusal to join the ICC was leaked recently. In it, Erekat is alleged to have criticised Abbas for stalling on the question of the ICC.
  12. ↑ "Hamas urges Abbas to sign ICC Statute". aa.com.tr. Andalou. 2014-06-17. Retrieved 6 December 2023.
  13. ↑ "Hamas signs Palestinian application for ICC membership". The Straits Times. 2014-07-23. Retrieved 6 December 2023.
  14. ↑ Hass, Amira (2021-03-06). "ICC decision makes the Israeli-Palestinian 1967 lines relevant once again". Haaretz. Retrieved 6 December 2023. Abbas also had a declaration initiated by Saeb Erekat, which the various Palestinian organizations signed, saying they supported joining the ICC and were willing to bear the consequences; that is, that the members of these organizations could be summoned, interrogated and even arrested on suspicion of committing war crimes. Only Islamic Jihad didn't sign.
  15. ↑ Hass, Amira (January 1, 2015). "Abbas asks ICC to probe 'Israeli war crimes' since June '14, Palestinian source says". Haaretz. Retrieved December 6, 2023. The source said leaders of Hamas and Islamic Jihad had declared they were willing to risk being tried at the ICC as long as it discusses Palestinian allegations about Israeli war crimes. During the Gaza war over the summer, Erekat had Palestinian leaders sign a declaration stating they agreed to turn to the ICC, even though Israel might seek the prosecution of Palestinians under war-crimes charges. The Islamic organizations also signed.
  16. ↑ Nidal Al-Mughrabi (2014-07-23). "Hamas backs Palestinian push for ICC Gaza war crimes probe". Reuters. Retrieved 6 December 2023. President Mahmoud Abbas says all factions must endorse before he proceeds with the ICC push.
  17. ↑ "Declaration accepting the jurisdiction of the International Criminal Court" (PDF). International Criminal Court. 2014-12-31. Retrieved 2023-12-03.
  18. ↑ Ravid, Barak (January 2, 2015). "Palestinians submit request to join International Criminal Court". Haaretz.com. Retrieved December 6, 2023. Palestinian Ambassador to the UN Riyad Mansour submitted on Friday evening to the UN offices in New York the request to join 22 international treaties, including the Rome Statute of the International Criminal Court at the Hague.
  19. ↑ The Prosecutor of the International Criminal Court (2015-01-16). "The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine" (Press release). International Criminal Court. Retrieved 6 December 2023.
  20. ↑ "Palestinian Authority becomes official member of International Criminal Court". Haaretz. April 1, 2015. Retrieved December 6, 2023.
  21. ↑ Peter Beaumont (March 3, 2021). "ICC opens investigation into war crimes in Palestinian territories". The Guardian. Retrieved December 6, 2023.
  22. ↑ "State of Palestine". International Criminal Court. Retrieved 2023-11-27.
  23. ↑ 23.0 23.1 Owen Bowcott; Oliver Holmes; Erin Durkin (2018-09-19). "John Bolton threatens war crimes court with sanctions in virulent attack". The Guardian. Retrieved 2023-11-27. "We will not allow the ICC or any other organisation to constrain Israel's right to self-defence," Bolton said on Monday.
Retrieved from "https://palepedia.org/index.php?title=International_Criminal_Court%27s_jurisdiction_in_Palestine&oldid=3023"