By David Bosco
The last few days have answered some important questions regarding the Palestinian move to join the court and seek an investigation of Israel. On Friday, Palestinian officials delivered their accession papers to officials at United Nations headquarters in New York. Palestinian representative Riyad Mansour declared Palestine the 123rd court member. He called the move an attempt to “seek justice for all the victims that have been killed by Israel, the occupying power.” He also described Israeli settlements as a war crime and confirmed Palestine’s intent see the court address them. Barring some extraordinary, Palestine should become a full member of the court in early spring. At that point, it will acquire the right to refer the situation on its territory to the court.
But the court’s prosecutor will almost certainly make a move even before then. That’s because as it submitted its accession papers, Palestine reportedly also filed what is referred to as an Article 12(3) declaration. If these published reports are correct, that declaration seeks to extend the court’s jurisdiction on Palestinian territory back to June 2014. That act should trigger a quick “preliminary examination” by prosecutor Fatou Bensouda. When Ukraine (which was not a court member) submitted its own declaration in April 2014, the prosecutor’s office noted “[u]pon receipt of a referral or a declaration made by a state pursuant to Article 12(3) of the Rome Statute, the Office of the Prosecutor, as a matter of policy, opens a preliminary examination of the situation at hand.”
When the prosecutor does announce a preliminary examination of the Palestine situation, it will make headlines. Many observers may have the impression that indictments are imminent. In fact, the preliminary examination of the Palestine situation is likely to be drawn out. And it is far from guaranteed that it will lead to a formal investigation, let alone indictments. The Rome Statute makes clear that no one can compel the prosecutor to open a full investigation or to seek indictments. Some preliminary examinations, including those in Afghanistan, Colombia, and Georgia, have gone on for years without a decision either to close the examination or open a full investigation. Preliminary examinations that take less than a few months are the exception.
How will the prosecutor’s office proceed during this phase? In the last few years, the prosecutor has elaborated a sequence of questions that it addresses. First, she will clarify the limits of her jurisdiction. This phase will require her to grapple with some knotty questions, including several of those outlined by David Luban in this superb post. Once the office has clarified its reach, it will examine whether there is a “reasonable basis” to believe that crimes under the jurisdiction of the court were committed. (The only crimes that the court can currently prosecute are war crimes, crimes against humanity, and genocide.) The office will probably turn first to the conduct of all sides during the recent Gaza conflict, but would also consider other potential crimes (including Israel’s settlements policy) over which it has jurisdiction.
If the prosecutor ultimately decides that there is evidence of relevant crimes (and this determination alone would likely take many months), she will then turn to “admissibility” questions. These include whether the crimes were sufficiently grave to merit the court’s attention and whether relevant national investigations preclude a role for the court . Finally, the prosecutor will consider whether the “interests of justice” argue against a full investigation. All three of these concepts–gravity, complementarity, and the interests of justice–are murky and so the prosecutor will have plenty of discretion.
The offices methods during a preliminary examination are quite different from those it employs during a full investigation. For the former, the prosecutor’s office relies heavily on information from outside sources rather than its own investigators. In this case, it will likely lean on the UN’s several inquiries into Gaza, information from the Palestinian Authority and Israel government (if the latter chooses to cooperate), media reports, and NGO analyses. In past preliminary examinations, prosecution officials have often traveled to the situation country (sometimes multiple times) to meet with both government officials and certain civil society representatives. The Rome Statute does give the prosecutor’s office scope to “take testimony” in The Hague during preliminary examinations, but there’s not much evidence it has used this authority.
While all this is happening, of course, the diplomatic wheels will be spinning. Israel will have to decide whether it will allow ICC officials into the West Bank if they seek to visit. The United States will hash out whether to cut off aid to Palestine, and Congress may attempt to pressure the court through new legislation. The European powers (all of whom are court members) will have to determine their own position. In the multilateral realm, it’s possible that the Security Council will consider some kind of package resolution that would freeze the ICC investigation, perhaps in exchange for concessions from Israel on the peace process. The length of the preliminary examination will provide plenty of time for all these maneuvers.