ICC: No Cast Lead probe as PA not a state

The prosecutor of the International Criminal Court announced Tuesday that the court will not accede to a 2009 PA request to investigate allegations of war crimes during the 2008-2009 Gaza conflict.

In a written ruling, prosecutor Luis Moreno-Ocampo said that the court cannot investigate the PA’s allegations because the court only has jurisdiction over recognized states.

The Office of the Prosecutor noted that while Palestine has been recognized as a state in bilateral relations by over 130 governments, by UN bodies and by other international organizations, the UN General Assembly has granted the Palestinian Authority the status of “observer” and not “non-member state.”

Tuesday’s long-anticipated decision is also a blow to the PA’s ongoing battle for recognition in the international community as an independent state.

Had the ICC accepted the PA’s recognition of its jurisdiction, it would have also tacitly accepted its statehood.

The ICC can try individuals for war crimes, crimes against humanity and genocide in states that are party to its founding treaty, the 1998 Rome Statute.

Other internationally recognized states that are not a party to the Rome Statute may also make a declaration that they recognize the court’s jurisdiction on their territory.

In 2009, immediately after the IDF’s Operation Cast Lead offensive against Hamas in the Gaza Strip, PA representative Ali Khashan rushed to submit a declaration to the ICC registrar, stating that the PA recognizes the court’s jurisdiction “for the purpose of identifying, prosecuting and judging the authors and accomplices of crimes committed on the territory of Palestine since July 1, 2002.” However, in his written ruling on Tuesday, Moreno-Ocampo said the main issue arising from the PA’s 2009 declaration was determining who defines what is a “state” for the purpose of the Rome Statute.

That matter, Moreno-Ocampo said, was decided in the first instance by the UN secretary-general, who in cases of doubt was guided by the UN General Assembly.

The Office of the Prosecutor had no authority under the Rome Statute to adopt a method to define the term “state,” the prosecutor said.

Significantly, although the PA applied in September to the UN for admission as a member state, the Security Council has yet to make a recommendation on the matter, a fact that the Office of the Prosecutor said “informs the current legal status of Palestine for the interpretation and application of [the Rome Statute].”

Also in his statement, Moreno-Ocampo noted that the ICC had initiated a preliminary investigation, in which the court allowed the PA to present its arguments, and that in July last year the PA had confirmed that it had submitted its principal arguments to the court.

Significantly, Moreno-Ocampo’s office added that the ICC could consider the PA’s allegations of crimes committed on its territory, should the Security Council make a referral regarding the court’s jurisdiction over the PA, or if the Assembly of States Parties “resolve the legal issue relevant to an assessment of article 12 [of the Rome Statute],” referring to the clause that stipulates that a state can confer jurisdiction on the ICC by becoming a party to the statute or by making an ad hoc declaration accepting the court’s jurisdiction.

The Foreign Ministry said on Tuesday that Israel welcomed Moreno-Ocampo’s decision saying that, at this stage, the court has no jurisdiction over complaints filed by the PA, but added that it had “reservations regarding some of the legal pronouncements and assumptions in the prosecutor’s statement.”

“Israel made it clear in the first place that the ICC has no jurisdiction in this matter,” a ministry spokesman said.

“In Israel, the issue has, for an extensive period of time already, been addressed by inter-ministerial teams, headed by the Foreign Affairs and Justice ministries, with the participation of other bodies,” the spokesman added.

Israeli NGOs also welcomed the ICC prosecutor’s decision.

Regavim, an organization that petitioned the ICC in September asking the registrar to revoke her decision to receive the PA’s declaration recognizing the court’s jurisdiction, said the move reflected the submissions it made in its application to dismiss the PA’s referral in limine (a motion before a trial begins).

“The Office of the Prosecutor has recognized that the entity which calls itself ‘Palestine’ cannot be recognized as a ‘state’ capable of exercising the jurisdiction of the ICC thereby obliging the investigation of crimes allegedly committed on its territory,” said attorney Nick Kaufman, an ICC defense counsel and counsel for Regavim.

In its September application to the ICC, Regavim argued that the PA’s declaration had also been a subtle attempt to get the ICC to recognize its statehood.

“The prosecutor has quite rightly rejected the PA’s attempt to acquire sovereign status through the back door,” Kaufman added.

NGO Monitor called the ICC prosecutor’s decision a “key defeat for NGO ‘lawfare’ in the Arab-Israeli conflict,” saying that pro-Palestinian NGOs had lobbied the Office of the Prosecutor “as part of their campaign to delegitimize the State of Israel.”

NGO Monitor’s legal adviser, Anne Herzberg, who filed a legal brief on the case, said had the ICC allowed the PA to fall under its jurisdiction, it would have essentially meant a rewriting of the Rome Statute.

“The fact that the case even proceeded this far was clear legal overreaching,” Herzberg said, “but it shows the strength of NGOs that lead delegitimization and demonization campaigns against Israel.”