Palestine,ICC and Israel-hype and reality

A number of people and articles appear to have focused on the fact that Palestine being admitted as a non-voting Observer State into the U.N,gives it the right to join various international organisations and groupings, of which the International Criminal Court (ICC) is oft mentioned as most interesting.

The theory or fear in each case is that by using the ICC,Palestinian Authority (PA),the body now entitled to sit in the UN,can take Israel to task in the ICC on various “War Crimes” and “Human Rights Violations”  as detailed here and here but however,in either case,neither is specific enough nor grounds its fears in concrete aspects of law relating to usage of ICC provisions.

What I try to show below is that its not to Israel’s detriment if Palestine signs the ICC treaty.Israel will remain immune from ICC’s jurisdiction,unless the UN Security council refers a crime to ICC – unlikely,if the U.S vetoes any such move.Only Palestine will be held liable to the ICC if any crime – suicide bombs,rocket attacks and suchlike -originate from it. However,even this might be dubious if Israel is deemed to be an “Occupying Power” in Palestine and the holder/controller of the Palestinian land -this aspect is not gone into here.

The substance of the arguments made in this blog is owed to a twitter interaction with Kellie Strom (@kelliestrom) and Hussein Ibish ( @IbishBlog).

First,facts. Israel is not a signatory to ICC. Its worth looking up the provisions of ICC,also called the Treaty of Rome to see what it says.

The list of signatories shows that Israel withdrew from the treaty and no consequences apply to it.

Under Article 12 (Preconditions to Jurisdiction), it says :-

                                                                             Article 12 (Preconditions to Jurisdiction)
1.         A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes   referred to in article 5.
2.         In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

      (a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
      (b)     The State of which the person accused of the crime is a national.

                3.         If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 12 needs to be read with Article 13 (Exercise of Jurisdiction), which says :-

                                                                                      Article 13 (Exercise of Jurisdiction)
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c)     The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Thus its clear that there are 2 cases when the ICC exercises jurisdiction –

(a) When the UNSC (UN Security Council) refers a crime to the International Criminal court -this actually has occurred in the case of Serbia,for instance

(b) When a crime has occurred otherwise, the precondition noted in 12.2 applies,when jurisdiction is sought under 13 (a) or 13 (c). What this means is that the state on which the territory where the crime belongs to,or if the criminal is a citizen or subject of the state,provided the said state is a member or signatory of the ICC.

In the case of Israel,neither of  these would hold since Israel is not a member.If Palestine were to be a signatory, the jurisdiction of the ICC is limited only to Palestine.So if rockets were to be fired or a crime originated from Palestine,ICC could hold Palestinian perpetrators accountable.But the reverse is not true – if Israel bombs palestine,it cannot be held accountable by its adversaries since it is not a signatory.

Hence only Hamas firing rockets,or sending in suicide bombers,or doing something else,could be held accountable. So its to Israel’s advantage that Palestinian Authority signs on to the ICC,without any liability imposed on Israel and may actually end up being a way to muzzle Hamas and other proponents of violent Jihad against Israel.


3 thoughts on “Palestine,ICC and Israel-hype and reality

  1. I don’t think this is quite right. If – a big if – Palestine signed and was recognised as a State Party to the ICC then, yes, under Article 12.2(b) any alleged war crime by a citizen of Palestine would fall under the jurisdiction of the ICC, as in for example rockets targeting civilians fired by Palestinian citizens, irrespective of the place of launching or location of the victims.

    But also, under 12.2(a) any war crime committed within the territory of Palestine would fall under ICC jurisdiction, even if the perpetrator was not a citizen of a State Party, for example an Israeli soldier or pilot. Note that 12.2 says “if one or more of the following States are Parties ” so clearly not all need to be.

    I think though that the impact on current military practice would be greater on Hamas & Co. than the IDF. The UK was a signatory to the ICC prior to intervention in Afghanistan and the invasion of Iraq, and was able to carry out normal military action without ICC sanction. The ICC is only permitted to proceed in cases where a State Party’s own legal system fails to properly prosecute a war crime.

  2. No, I read 12.3 as an alternative means of getting jurisdiction, not an additional requirement. If neither the State of which the accused is a citizen nor the State in which the crime is alleged to have occurred is a State Party, then as an alternative one or other State may choose to accept the exercise of jurisdiction by the Court for that one alleged crime. (But I’m not a lawyer!)

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