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What Palestinian statehood means for ICC jurisdiction over Israeli crimes

The Palestinian bid for statehood at the UN has Israel especially worried about one implication from the move – Israeli conduct on Palestinian territory becoming subject to the jurisdiction of the International Criminal Court.

By Noam Wiener

Tomorrow is November 29, a day that in my childhood memories is associated with a static recording reading: “Afghanistan, no; Argentina, abstain; Australia, yes” and with black and white photos of people dancing in circles in the streets of Tel Aviv following the approval of the Partition Plan for Palestine.  But children today will have a different memory. Obviously many Israeli opinion makers do not like to be reminded that the state they live in was conceived alongside what was meant to be a state on land Israel has been occupying for the past 45 years. But the Palestinian Authority’s request from the UN General Assembly to recognize it as a non-member state creates further concerns for the Israeli political and media establishment on this special date.

This piece will be limited to one of the key issues relating to the Palestinian bid for statehood – its ability, should the bid be accepted, to join the International Criminal Court (ICC). The ICC was created in 1998 as a court with the authority to try individuals – as opposed to states – who commit international crimes (including the crime of aggression, genocide, crimes against humanity, and war crimes).

Most international institutions do not have universal authority and can only exercise power over individuals from member states who chose to join the organization. The ICC is different. The ICC has jurisdiction over crimes committed by individuals, be they citizens of member states or otherwise, if these crimes were committed in the territory of a member state. This means, for example, that if a citizen of the United States (not an ICC member), commits an international crime on French soil (an ICC member), the ICC will have jurisdiction over that individual even though the U.S. never consented to ICC jurisdiction. This seemingly imperial power over a non-member state does not seem so unusual, however, when we remember that if a U.S. citizen commits any sort of crime in France, French courts have authority to try that individual by virtue of France’s territorial sovereignty. Thus, the ICC only follows the territorial jurisdiction of the member states.

Israeli officials find the ICC’s jurisdiction worrisome in relation to the Palestinian bid for recognition as a state.  As long as Palestine is not a state, it cannot become a member of the ICC, and Israeli conduct on Palestinian territory is not subject to ICC jurisdiction (unless the UN Security Council refers the matter to the to the ICC, or Israel joins the ICC – both unlikely events in the foreseeable future). Palestine’s “non-state” status is the reason the Palestinian bid for ICC investigation in 2009 was rejected last April by the ICC Prosecutor. But if Palestine gains recognition as a state from the members of the UN, it could then ask to join the ICC, and then international crimes committed in its territory could be subject to ICC jurisdiction.

Notably, this does not mean that we will be seeing Israeli generals and politicians hauled off to The Hague on November 30. The ICC gains jurisdiction only prospectively, so alleged crimes committed before the new member joined are not subject to ICC investigation. Second, the ICC would only have jurisdiction over crimes committed on Palestinian sovereign territory, but where that territory starts and ends is entirely unclear and will doubtlessly be subject to prolonged legal wrangling. Third, even if alleged crimes have been committed (and this needs to be investigated on a case by case basis), because of the ICC complementarity regime (on which I have already commented in +972), the Prosecutor will only investigate cases that Israel has itself neglected to investigate. Finally, the Prosecutor will only apply his or her very limited resources to those cases considered to be the most grievous violations of international law. As inhumane as the occupation of Palestine is, even if the Prosecutor is convinced that specific crimes have been committed in the occupied territories, it is unclear whether he or she will also think that these crimes are grave enough to warrant her attention in light of other instances of international crimes committed around the world.

Despite these four caveats, Israel’s leaders are right to be worried about potential ICC investigations into Israeli conduct in the occupied territories. The mere launch of an investigation against Israeli leaders could turn them into diplomatic pariahs. But the best means to avoid this is, of course, to refrain from committing crimes, rather than to avoid being investigated for them. And more important still, to acknowledge the Palestinian right to statehood, so that November 29 can be celebrated as the day the right of both Palestinians and Israelis – to live as free and sovereign peoples – was recognized.

Noam Wiener is an Israeli doctoral candidate at the University of Michigan Law School. His research focuses on international criminal law.

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    1. “[Israel] was a conceived alongside what was meant to be a state on land Israel has been occupying for the past 45 years.” Ahem! About 1/2 of the land Israel has been occupying since 1948. Just to be clear. Not that it matters (!?)

      UNGA 181 suggested an Israel on 55% of the land, but Israel (before 1967) occupied 78% (which is 23% more), and Gaza&West Bank are the3mselves only 22%.

      Reply to Comment
      • rsgengland

        The arguments about the extent and area could go on forever .
        Since the creation of Palestina by the Romans , its population,area and powers have fluctuated enormously . Jordan occupied and annexed the West Bank, and Egypt controlled Gaza with an Iron Fist between 1948-1967 .
        Yet there was no call for a Palestinian State there then .
        Just the call for Israels eradication .

        Reply to Comment
        • ellek

          Rsgengland, you write: “Since the creation of Palestina by the Romans… Jordan occupied and annexed the West Bank, and Egypt controlled Gaza with an Iron Fist between 1948-1967 . Yet there was no call for a Palestinian State there then .
          Just the call for Israels eradication.”

          More than a mistake in your post.
          1) Palestine was created by Romans; in case by Greeks, but this not the case either.
          2) Second, People were demanding their independence during the years of Jordanian rule. The Fatah Party (founded in 1959) advocated Jordanian withdrawal from the West Bank, building on popular Palestinian sentiment of the day. Hostile sentiment against the Jordanian government did not subside with the Israeli occupation of the West Bank – in fact, it escalated to the point where King Hussein declared martial law, and Fatah fighters and other Palestinian militias were actually fighting against the Jordanian army.

          Reply to Comment
    2. publo

      an article 12.3 declaration could be submitted by the Palestinian state, in addition to/or alternative to ratifying the Statute, and this would allow the Court to exercise jurisdiction from a date of the Palestinian’s choosing, but no further back than July 2002.

      Reply to Comment
    3. The Trespasser

      “But if Palestine gains recognition as a state from the members of the UN, it could then ask to join the ICC, and then international crimes committed in its territory could be subject to ICC jurisdiction.”

      Not only that but also crimes committed by Palestinians elsewhere will be subjected to ICC jurisdiction.

      Reply to Comment
    4. Noam W.

      Publo you are correct, but I believe this option will not be open to the PA if it wishes to join the ICC.
      The Trespasser, you are correct, active personality also grants jurisdiction under the ICC regime, but it is less pertinent to the concerns of the Israeli government.

      Reply to Comment
      • The Trespasser

        It seems to me that Israeli government is actually much more relaxed regarding this issue that they want others to think.

        Ehud Barak offered statehood some 11 years ago, I really don’t think that much have changed since than.

        Reply to Comment
        • Richard Lightbown

          “It seems to me that Israeli government is actually much more relaxed regarding this issue that they want others to think.”
          Maybe. But Britain’s pro-Zionist government was sufficiently concerned about this specific point to seek reassurances against such an event from Palestine, and to abstain from voting when those reassurances were not forthcoming.

          Reply to Comment
    5. ish yehudi

      shalom noam– question–
      would this leave Hamas susceptible to charges about firing into Israeli civilian areas?
      If i understand what you wrote- then ICC opens the channel to charge individuals from member states– How would an organization like Hamas in Gaza fit in– as a gov’t force? or as individuals?
      And can ICC charges be brought against gov’ts? govt policies?

      Reply to Comment
    6. aristeides

      Someone correct me if I’m wrong, but I think that Palestine, as a ICC member, could bring charges against Israel, but Israel, not being an ICC member could not bring charges against Palestine.

      Reply to Comment
      • The Trespasser

        You are wrong pretty much every time you think, say or write something.

        Get used to it already.

        Reply to Comment
        • mazentov

          Muahaha. Great real satire remark by the greatest actual propaganda toy on this site.

          Reply to Comment
    7. JKNoReally

      A more straightforward article about this issue would have said, up front: (1) there won’t be any ICC investigations because the ICC’s threshold for accepting the legitimacy of domestic proceedings is extremely low (2) nothing Israel does or has ever done comes close to the kind of deliberate and large-scale atrocity that the ICC cares about. Sorry haters, you can stop foaming at the mouth now – your delusions about Jewish crimes won’t past muster with the ICC.

      Reply to Comment
      • Noam W.

        JK, that’s a whole different question. I am not sure that Israel’s 45 year settlement policy is so negligent as far as international crimes go. Nor has this policy ever been investigated in Israel as it is not illegal under local law.
        Also, as I’ve written in the post I linked to in the article, punishments of the type Israel has meted out to some of its officers are classic examples of shielding, so I am not sure that would stand in the way of investigations either – though I agree with you that the actions for which they were tried were not, at last individually, as grievous as the other crimes investigated by the ICC.

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        • Pierre

          In my opinion, the Israeli settlements in Palestine concern the ICJ much more than the ICC. They are the result of an official Israeli policy, not of individual acts.

          Reply to Comment
        • JKNoReally

          Different question? I addressed two of the same points you did. Anyway, Israel’s settlement policy is negligent – the amount of land taken, the amount of Palestinians displaces or killed, is very very low compared to, for instance Turkey’s war against the Kurds. Classic examples of shielding? You must not be reading the same ICC cases as the rest of us – Israel’s procedural standards are very high by ICC standards, and even if they weren’t, nothing any Israeli has ever done will compel the prosecutor to take a serious look at them. Obviously you’ve got all the concepts right – but you’re not explaining them properly. Seems like you think a lay audience will see you’ve got the basic framework down and believe you – but professionals, those who study the ICC and its cases and judges, won’t.

          Reply to Comment
    8. I really don’t understand the legal implications of this vote, and reading most news articles doesn’t help at all, except for this one (thanks, Noam!).

      What does it mean legally, other than with respect to the ICC, that the UNGA recognizes Palestine as a non-member state? As I understand it, UNGA resolutions about statehood do have legal implications, simply by the fact that the member states voted for the resolution. But Palestine wouldn’t “really” be a de jure state, would it? I mean, not as if, say, it were unanimously recognized as such by other states. So, is this resolution legally relevant only to UN-affiliated bodies?

      Reply to Comment
      • Noam W.

        Thank you Aaron.
        Your question is a very very complicated one. I will only briefly answer.
        So first of all – the ICC is not a UN institution. Even though the ICC statute refers to the UNSC, it is completely separate entities.
        Then, there is general agreement that recognition of statehood requires, beyond recognition, an ability to govern, which the does not have (because it is under Israeli control).
        Thus, other than the ICC thing, and whichever other organs Palestine will be able to join, there is only really a declaratory weight to process (which, you know, sometimes means more and sometimes means less – but that’s not law anymore, that is politics).

        Reply to Comment
    9. Noam W.

      Ish and Aristeidis, it is not a country that charges another country. The Prosecutor of the ICC is the entity that charges individuals for crimes. As such, they don’t have to be a government force, and they don’t have to attack a member state. All that is required is that they commit crimes on the soil of a member state, or be citizens of a member state. And of course that their conduct fulfills the elements of one of the crimes listed in the statute.
      From this you can surmise that:
      a. Once Palestine joins, its citizens can be charged for crimes no matter where they commit them.
      b. Governments are not individuals and therefore they cannot be charged, but specific members of governments can be charged as co-perpetrators of joint criminal enterprises.
      c. You don’t have to be an official to be charged with international crimes.

      Reply to Comment
      • Palestinian

        You said in your article ” The ICC has jurisdiction over crimes committed by individuals, be they citizens of member states or otherwise, if these crimes were committed in the territory of a member state” .

        It means the ICC has no jurisdiction over crimes committed by Palestinian citizens (once Palestine joins it ) in the territory of a non-member state, which contradicts what you said ” no matter where they commit them”.

        Reply to Comment
        • Palestinian

          I misunderstood what you said .My apology.

          Reply to Comment
    10. Publo is absolutely correct: Article 11(2) of the Rome Statute specifically permits a state that ratifies the Statute to accept jurisdiction retroactive to 1 July 2002. That option would be open to Palestine.

      It is also worth noting that Palestine would not have to ratify the Rome Statute to open up the possibility — however unlikely, as Weiner explains — of an ICC investigation. It could simply accept the Court’s jurisdiction on an ad hoc basis pursuant to Article 12(3).

      Reply to Comment
    11. Israeli guy

      So we won’t get charged for our crimes? Holy I was scared for a second. Netanyahu got it all under control. Time to go bomb some Palestinian children. And rob hard earned American money. Yolo!

      Reply to Comment
    12. Bubba

      Wow – You guys are so civil here – quite refreshing to read – over at jpost it’s all venom and hate.

      Reply to Comment
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