How can Israel be brought to the ICC?
“When will the International Criminal Court begin to exercise its mandate? When the Palestinians are no more?” asked a recent article on the Gulf News.
After Israel’s latest war on Gaza, in which more than 2,000 Palestinians perished under the occupation’s artillery, the eyes are turned on the Hague-based international tribunal that has been referred to as the “last resort for prosecution of genocide, war crimes, and crimes against humanity”.
Legally speaking, how can Israel be brought to the ICC? International criminal lawyers Toby Cadman of 9 Bedford Row Barristers Chambers and the TMC Advisory Group, and Carl Buckley of the TMC Advisory Group explain:
“The ICC’s jurisdiction is effectively triggered in three ways. First, if Palestine was a State Party, i.e. it had ratified the Rome Statute of the ICC, the Prosecution could initiate what is called a ‘preliminary inquiry’. Regrettably, Palestine has not ratified the Rome Statute. Second, it could send a communication recognising the jurisdiction of the ICC. This is known as ‘self referral’. This is open to Palestine. Third, the UN Security Council can decide to refer the situation in Palestine to the ICC. This is unlikely to happen as the US will veto any proposal to refer the situation.
“These matters are complex and depend significantly on the steps that the Palestinian Authority takes as far as the Rome Statute is concerned.
“The position at present is that Palestine is not a state party to the Rome Statute. I recognise that there are those that believe that the fact that the UN granted Palestine observer status is now enough for the ICC to open an investigation, not the basis of contents of the 2009 communication. This is not correct in my opinion. In 2009 the ICC Prosecutor declined to open an investigation as Palestine was not considered a State. The Palestinian Authority communicated to the ICC that it accepted the jurisdiction of the ICC. This was not accepted on the ‘Statehood’ argument and the ICC Prosecutor referred the matter to the UN Secretary General to decide. It was never properly discussed in the UN. The change in status of Palestine is certainly a significant step but it is not conclusive. The ICC Prosecutor has requested the Palestinian Authority to submit a new communication accepting jurisdiction. It has not yet done so.
“The UN Security Council referral option is not realistic due to the opposition of the US and possibly also Russia in vetoing any such move.
“The only sensible option in my view therefore is for Palestine to ratify the Rome Statute. That way there can be no issue of jurisdiction or authority to investigate.”
The ICC has “persistently avoided opening an investigation into alleged war crimes in Gaza as a result of US and other western pressure”, a Guardian article based on interviews with former court officials and lawyers claimed. In her response, ICC Prosecutor Fatou Bensouda stated that “the office of the prosecutor will execute its mandate, without fear or favour, where jurisdiction is established and will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity. My office’s approach to Palestine will be no different if the court’s jurisdiction is ever triggered over the situation.”
In the meantime, lawyers add that there are also other avenues that can be explored, for example, the use of international media to raise the profile of the case and garner more international support, the lobbying of UN member states to make helpful statements/support any such application.