The International Criminal Court on Thursday granted the request of more than 40 parties – countries, NGOs and experts – to weigh in on whether Palestine is a state and what ICC jurisdiction would look like in territorial terms.
The upshot is that the ICC appears to be taking the issue very seriously and wants to present to the world the picture of being evenhanded.
Last week, the Czech Republic, Germany, Australia, Austria, Brazil, Hungary and Uganda, as well as a large number of NGOs and experts, filed arguments saying that Palestine is not a state and that the ICC must dismiss any war-crimes charges against Israel.
The Organization of Islamic Cooperation and the Arab League, representing dozens of states as well as many other NGOs and experts, weighed in on the Palestinian side, pressing for a war-crimes probe.
All of these parties may now file fuller legal briefs on the relevant issues until March 16. But the ICC did warn the parties not to include arguments besides the jurisdictional question. Some countries have argued that going after Israel is not in “the interests of justice” and that it will harm the ICC’s name globally.
On December 20, ICC Prosecutor Fatou Bensouda announced her blockbuster decision to recognize a State of Palestine over Israeli objections, as well as her desire to probe Israelis and Hamas members for a variety of alleged war crimes.
If the pro-Israel side fails to convince the ICC Pretrial Chamber to drop the case, the IDF and the Israeli settlement enterprise could be in legal jeopardy.
Only states may refer a case to the ICC, so the question of whether Palestine is a state is crucial.
Prior to Bensouda’s December 20 decision, her office had said it was also considering whether the Palestinian Authority might be guilty of war crimes for the torture of its own people or for its so-called “pay for slay” policy.
In an interview with The Jerusalem Post after the December 20 decision, Bensouda indicated she was still considering the issue but had not reached a decision. It is unclear if this issue will also come before the ICC Pretrial Chamber in the current round of legal arguments or only at a later date.
Bensouda may respond to all of these intervening countries, NGOs and experts by March 30.