By David Bosco
Yesterday brought major news related to international justice: in the wake of a Security Council rebuff, Palestine has reportedly signed the Rome Statute, potentially giving the International Criminal Court (ICC) broad jurisdiction over its territory. Palestinian leaders have long threatened to take this step but have, to this point, apparently been dissuaded by opposition from the United States and discomfort in Europe. There have also likely been complicated discussions between Hamas and Fatah about Palestinian legal exposure to the court. I’ve been tweeting about the possible implications and have tried below to sketch out in more depth some of the key political and legal issues that arise as a result of this development. I’ll be updating this post periodically to incorporate more analysis and relevant links:
When will Palestine finalize its move? In an earlier version of this post, I noted the distinction between Palestine signing the Rome Statute and ratifying it. A number of states (including Israel, Russia, and the United States) have signed the statute but not ratified. In legal terms, signing the statute only requires the signing state not to undermine the object and purpose of the treaty; the court doesn’t get any new jurisdiction until after ratification. Given this, I suggested that Palestine might hold off on ratification, effectively extending the game of chicken with Israel. But having reviewed Article 125 of the Rome Statute, and after consultation with ICC experts Kevin Jon Heller and Alex Whiting, I no longer think that signing without ratifying is an option for Palestine. That Rome Statute appears to make accession, which has the same effect as ratification, the only option for Palestine at this point. That said, it appears that Palestine is may be pausing briefly at the brink of ICC membership. Reuters reports that Palestinian officials will not formally deliver the accession documents to the United Nations on Friday.
The Palestinian U.N. observer mission has delayed the delivery to the United Nations of a batch of newly signed treaties, originally planned for Wednesday, until the end of the week, a diplomat at the mission said.
Will Palestine give the court jurisdiction over past events? If Palestine does seal the deal, the ICC will acquire broad jurisdiction over war crimes, crimes against humanity, and acts of genocide on Palestinian territory. But, per Article 126 of the Rome Statute, the court only acquires jurisdiction “on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.” ICC jurisdiction would therefore begin in early April. And that means that the recent Gaza conflict and other past violence would fall outside the temporal jurisdiction of the court. Palestine could cure this gap, however, by submitting what’s known as an Article 12(3) declaration giving the court jurisdiction over past events, although (as commenter Darryl Li pointed out) certainly nothing earlier than when the court came into existence. There is precedent for this kind of move: as it referred its own situation to the court, the government of Uganda submitted a declaration granting the court jurisdiction over several months otherwise not covered because of the timing of Uganda’s own ratification. Whether Palestine chooses to do so will be a clear indication of whether it wants the court to review Israel’s conduct in Gaza. Update: Haaretz is reporting that Palestine will ask the court to investigate crimes on its territory since June (therefore including the recent Gaza conflict):
Palestinian President Mahmoud Abbas signed a declaration Thursday asking the International Criminal Court to investigate suspicions of war crimes “committed in Palestine” since June 13, said a nongovernmental Palestinian source who for years has taken part in Palestinian plans to join the court.
Palestinian government officials have not yet confirmed the source’s comments, and Prime Minister Benjamin Netanyahu has said he expects any ICC bid to fail.
The declaration was enabled after Abbas signed the Rome Statute on Wednesday night and requested that the Palestinians join the ICC. The following morning PA chief negotiator Saeb Erekat delivered the request, along with 19 letters of accession signed by Abbas, to the United Nations’ main office in Jerusalem. On Friday they will be received by the UN secretary-general in New York.
Will Palestine refer the situation to the court? If and when Palestine ratifies the statute, the court acquires jurisdiction over crimes on its territory. The prosecutor then has the authority to request a full investigation on her own, using the so-called “proprio motu” power. But the court’s (admittedly short) history suggests that the prosecutor may still wait for Palestine (or, in theory, some other member state) to refer the situation to the court. Only in Kenya (which turned out to be disastrous) has the prosecutor sought a full investigation without either a state or UN Security Council referral. The painful Kenya experience may lead the prosecutor to wait for a referral before moving to a full investigation. The prosecutor office’s has several times articulated a policy of “soliciting” referrals, and the political implications of a full investigation mean that the court will want as much formal backing as it can get before it wades in to the morass. One possibility is that the prosecutor will announce a preliminary examination of the situation but then leave that examination linger for a considerable period as the political dust settles.
There is also a procedural reason that the prosecutor might prefer to wait for a referral. When the prosecutor seeks to open a full investigation proprio motu, she must secure the approval of a three-judge panel of judges, a step not necessary when there is a referral. (But it’s also possible the prosecutor might see some advantage in having judicial approval of before launching a full investigation.)
How will the “situation” in Palestine be defined? One key issue that has arisen in past court investigations is how the prosecutor and the relevant states shape and define “the situation” the court is investigating. As discussed, if Palestine gives the court jurisdiction over past events, that would broaden the temporal scope of “the situation” considerably. But that still leaves open the question of whether the relevant situation is the specific conflict in Gaza, some other limited aspect of the conflict–or the conflict in its entirety. A very broad definition would encompass the entire Israel-Palestine dispute, and presumably would include alleged targeting abuses, civilian deaths, and settlements in both the West Bank and Gaza. The settlements issue is by far the most sensitive for Israel (as discussed below). But a much narrower definition of the situation is also quite possible.
Will the prosecutor investigate possible Palestinian abuses? However the Palestine situation reaches the court, one thing is certain: the prosecutor’s office will consider Palestinian crimes as well as those by Israel. Media reports often refer to Palestine seeking to “file charges” against Israeli officials. That’s a misleading description. It’s very clear that Palestine will not be able to tailor a referral to only consider Israeli misdeeds. When Uganda attempted to refer only the Lord’s Resistance Army to the court, for example, the prosecutor quickly clarified that he would be examining crimes by all parties. If the court investigates the recent Gaza conflict, it’s all but certain that Hamas’s indiscriminate rocket attacks and certain other tactics would receive immediate scrutiny.
Will the prosecutor investigate settlements? Israel’s nightmare is that the ICC investigates and seeks to prosecute senior Israeli officials for its settlements policy. The Rome Statute (and much preexisting international law) make the settlement of populations on occupied land a war crime. This issue is particularly unnerving for Israel because decision-making on the settlements policy goes right to the top of the Israeli government. In fact, it’s hard to imagine a prosecution over settlements that doesn’t involve a senior government official, even the prime minister. Moreover, Israel has no real “complementarity” defense on settlements; it cannot plausibly claim that it has investigated its own conduct on this issue. My understanding is that the Israeli Supreme Court has avoided grappling directly with the legality of settlements, although it has reviewed many other sensitive aspects of Israeli security operations.
But if a settlements prosecution is a nightmare for Israel, it might also be one for the court. It would bring the court into the very heart of the dispute and would raise a host of complex legal questions that the ICC judges would have to settle. For those reasons, the prosecutor will have strong incentives to avoid adjudicating the issue and she might do so by trying to define the Palestine situation as narrowly as possible.
Will the UN Security Council get involved? As mentioned, it appears that Palestinian leaders decided to pull the trigger on ICC membership after being frustrated by what it sees as the Council’s inaction. But that doesn’t mean the Security Council is out of the mix. The Rome Statute gives the UN Security Council the power to “freeze” any ICC investigation for a year, with the possibility of indefinite renewal (so long as the Council passes a new Chapter VII resolution every year). If it looks like a full court investigation is imminent, it’s possible that the Council would consider a deferral. States sympathetic to Palestine would no doubt insist that any deferral be paired with other provisions related to the peace process. To this point, the Council has never agreed to a situation-specific deferral, although the possibility has been raised regarding Uganda, Kenya, and Sudan. Given the very high political stakes in this context, it’s quite possible the Council will consider a deferral at some future point. Some human rights advocates see Palestine’s membership move as a step in the triumph of law over politics. It’s just as likely that politics will prevail, but with the prospect of international justice having altered the negotiating dynamic.
Will Palestine’s move trigger aid cut-offs? As the New York Times reports, Congress has warned about cuts in U.S. aid to the Palestinian Authority if it joins the court. “The United States Congress had long threatened to impose sanctions against the Palestinian Authority, including the loss of about $400 million in annual aid, if it joined the court.” As far as I can discern, the relevant legislative provision is the following:
…[p]rohibits the availability of Economic Support Fund assistance under this Act for the PA if: (1) the Palestinians obtain the same standing as a United Nations (U.N.) member state or full membership in the U.N. or any specialized U.N. agency outside an agreement negotiated between Israel and the Palestinians; or (2) the Palestinians initiate an International Criminal Court (ICC) investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.
It looks like there’s a bit of wiggle room here. Joining the court without actually referring the situation need not be construed as “initiating an investigation.” And until the court decides to launch a full investigation, the Palestinian Authority cannot “actively support” one. (There may also be a presidential waiver of some sort that applies, although I haven’t identified that language.)
All this said, it seems quite possible that the United States may ultimately cut off aid to the Palestinian Authority. If it does, an important question will be whether the PA’s other financial backers, specifically the EU states, will cover the difference.
Will the U.S. Congress take measures against the ICC? After the fraught debates about the ICC in the late 1990s, U.S. conservatives have mostly ignored the court. This is not surprising; its activities in places like Sudan, Libya, Uganda, and the Democratic Republic of Congo have been mostly innocuous from a U.S. perspective. But the last few months have been unsettling ones. The court reopened a preliminary examination of possible British crimes in Iraq, forcing the British government to launch a review of its own accountability practices. More recently, the prosecutor for the first time specifically mentioned possible U.S. crimes in Afghanistan. Now comes the Palestinian gambit. It’s possible that these moves together will lead Republicans (and plenty of Democrats) in Congress to push for new legislation related to the court (and distinct from the question of aid to the Palestinian authority). There is already in place a broad prohibition on U.S. support for the court, but concerned lawmakers might push for new measures. At the very least, the Obama administration’s moves to smooth relations with the court will come under much greater scrutiny.
Does the ICC have an anti-Israel bias? For backers of Israel, some of the angst about the court’s potential role appears to be rooted in a perception that any court investigation will be unfair to Israel. This is understandable given the frequent, intense and often disproportionate criticism that Israel receives in other international institutions. The International Court of Justice’s opinion declaring Israel’s separation barrier to be illegal is also no doubt on the minds of many Israel supporters. But does the court’s record to this point support the notion of anti-Israel animus? I’d say not. In fact, the court has seemed eager to avoid the dispute whenever possible. When Palestine tried to refer the 2008-2009 Gaza conflict, then prosecutor Luis Moreno Ocampo temporized and finally decided that he could not accept the jurisdictional declaration. Given the UN General Assembly’s vote on Palestine, Ocampo’s sucessor, Fatou Bensouda, might have accepted Palestine’s declaration months ago. But she too acted cautiously by insisting that Palestine submit a brand new declaration. And the prosecutor recently closed her inquiry into Israel’s flotilla raid without even opening a full investigation, let alone bringing indictments. None of this means that Israel should welcome an ICC role. But there’s just not much evidence that the court is at all eager to bring Israelis into the dock.