On April 3, 2012, Israel won round one of a crucial legal battle with the
Palestinians, slamming the door shut on their attempt to bring Israeli soldiers
and leaders before the International Criminal Court on war crimes
The Palestinian Authority first filed a declaration attempting
to accept the ICC’s jurisdiction, after which it intended to file war crimes
cases against Israeli soldiers and leaders relating to Operation Cast Lead, on
January 22, 2009.
Israel’s win was on a technicality, though not a small
According to the Rome Statute governing the ICC, cases can only be
filed with the court by referral from the UN Security Council or by a “state.”
There is a third path that the court appears to be applying in the case of
Kenya, but for various reasons no one has made, or is likely to make, a serious
push to use that exception on behalf of the Palestinians.
problem the Palestinians had, and have, at least for another two weeks, is that
Israel argued the Palestinians were not a “state.” Therefore, Israel argued the
Palestinians did not have standing or authority to file a case with the ICC. In
other words, the ICC could not even start looking into the merits of individual
After more than three years debating the issue, including
soliciting around a dozen legal opinions from governments, academics and
interested parties across the spectrum, the ICC prosecutor, Luis Moreno- Ocampo,
took Israel’s side and said that the PA could not file cases with him because,
at the time, there was no state called “Palestine.” Had the decision gone the
other way, the fact that “Palestine” would only have become a state party to the
ICC even years after the Cast Lead offensive against Hamas would have been
The Rome Statute gives jurisdiction to hear cases from states
who join the ICC, even ad hoc and retroactively, as long as the cases arose
after July 1, 2002, when the statute took effect.
In the media, the
decision was reported as an unequivocal win for Israel, and the Palestinians
were openly disappointed, having thought from the three-year process, their
success in gaining membership in UNESCO and the solicitations of legal briefs on
the issue, that they had a solid chance of winning.
One would have
thought that Israel’s Foreign Ministry would have had a public celebration,
after saving the nation’s soldiers and leaders from prosecution.
the ministry’s reaction was unexpectedly muted, merely “noting” (as opposed to
at least “noting with satisfaction”) Moreno-Ocampo’s decision, and expressed, in
diplomatic- speak, disagreement with part of it, saying Israel had “reservations
regarding some of the legal pronouncements and assumptions.”
Israel have reservations about a decision closing the door to PA war crimes
cases? It turns out that Moreno- Ocampo closed the door, but left it ajar for a
First, in most of his decision, he focused on the UN General
Assembly as the decisive organization for defining who is a “state” for the
purposes of filing a case with the ICC.
This is crucial, because he could
have focused on the Security Council, the body that must approve any country to
become a member of the UN.
The US has pledged to veto any vote in the UN
Security Council declaring Palestine a member state, making that a dead
Thus, Moreno-Ocampo’s focus on the General Assembly gave the PA a
future opening for an end-run on being able to file war crimes cases with the
ICC by getting recognized as a non-member state, without Security Council
recognition, but with General Assembly recognition.
almost told the Palestinians what road to go down to beat the jurisdictional
problem, remarking that Palestine’s status was only as an “observer,” and not a
“non-member state,” – as if to suggest to the PA that if they had been a
non-member state already, his decision might have been
Finally, Moreno-Ocampo said that his office could reconsider
the “allegations of crimes” in Palestine in the future should competent organs
of the UN give him direction that the statehood problem was resolved.
also mentioned the Assembly of State Parties, the “parliament” and governing
body of the ICC, as being empowered to accept “Palestine” as a state, but
procedurally that could be much harder than a simple up-or-down vote in the UN
In essence, Moreno-Ocampo said that if the PA gets
voted as a non-member state by the UN General Assembly in two weeks, it can try
again to re-file the war crimes cases.
Some commentators have said that
Moreno-Ocampo’s “advice” to the Palestinians was non-binding, that the only
relevant part of his decision was his ruling that the PA was not a state and
that without UN Security Council approval, a “political” vote alone from the UN
General Assembly will leave the PA at the same dead end of still not being seen
as a state by the ICC.
Besides statehood, there are still plenty of
question marks and other obstacles.
In June 2012, Moreno-Ocampo finished
his term as the first ICC prosecutor, replaced by Fatou Bensouda of Gambia, who
was elected to a nine-year term.
While some felt that Moreno- Ocampo
would have liked to have filed cases against Israel if his hands had not been
tied, there is less known about Bensouda, and whether she would take the same
stance as her predecessor in a relatively new office with little precedent for
how to operate.
Also, in theory, if the Palestinians risk filing with the
ICC, Israel (though currently not a party to the ICC) and others might also file
against them for human rights violations.
Also, as a new institution,
diplomatic pressure from the US (though not a party to the Rome Statute) and
from some European states could delay or stop a case from moving forward, even
if the initial jurisdictional problem was cured.
Further, Israel is not a
party to the Rome Statute, so it could be difficult or impossible to actually
conduct a case against Israel’s citizens without its government’s
Finally, it is far from clear that the ICC would make a
final decision to indict any Israelis, in light of the fact that Israel has
completed a process of investigations – including some prosecutions – of its
soldiers’ actions in Operation Cast Lead.
Generally speaking, the ICC is
only supposed to make a final decision to file indictments if the state of the
accused citizens has done nothing to investigate the allegations.
argue that only credible investigations are required, not
Despite all of these question marks, there is no question
that a vote recognizing Palestine as a non-member state in two weeks would start
a “Round 2” on the war crimes allegations relating to Operation Cast Lead.