Analysis: Round 2 of ‘Israel, Palestine at the ICC’

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 charges.

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 one.

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.

The technical 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 cases.

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 irrelevant.

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.

Instead 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.”

Why would 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 “Round 2.”

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 end.

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.

Moreno-Ocampo even 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 different.

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.

He 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 General Assembly.

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 cooperation.

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.

Many argue that only credible investigations are required, not convictions.

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.