What Palestinian statehood means for ICC jurisdiction over Israeli crimes

The Palestinian bid for statehood at the UN has Israel especially worried about one implication from the move – Israeli conduct on Palestinian territory becoming subject to the jurisdiction of the International Criminal Court.

By Noam Wiener

Tomorrow is November 29, a day that in my childhood memories is associated with a static recording reading: “Afghanistan, no; Argentina, abstain; Australia, yes” and with black and white photos of people dancing in circles in the streets of Tel Aviv following the approval of the Partition Plan for Palestine.  But children today will have a different memory. Obviously many Israeli opinion makers do not like to be reminded that the state they live in was conceived alongside what was meant to be a state on land Israel has been occupying for the past 45 years. But the Palestinian Authority’s request from the UN General Assembly to recognize it as a non-member state creates further concerns for the Israeli political and media establishment on this special date.

This piece will be limited to one of the key issues relating to the Palestinian bid for statehood – its ability, should the bid be accepted, to join the International Criminal Court (ICC). The ICC was created in 1998 as a court with the authority to try individuals – as opposed to states – who commit international crimes (including the crime of aggression, genocide, crimes against humanity, and war crimes).

Most international institutions do not have universal authority and can only exercise power over individuals from member states who chose to join the organization. The ICC is different. The ICC has jurisdiction over crimes committed by individuals, be they citizens of member states or otherwise, if these crimes were committed in the territory of a member state. This means, for example, that if a citizen of the United States (not an ICC member), commits an international crime on French soil (an ICC member), the ICC will have jurisdiction over that individual even though the U.S. never consented to ICC jurisdiction. This seemingly imperial power over a non-member state does not seem so unusual, however, when we remember that if a U.S. citizen commits any sort of crime in France, French courts have authority to try that individual by virtue of France’s territorial sovereignty. Thus, the ICC only follows the territorial jurisdiction of the member states.

Israeli officials find the ICC’s jurisdiction worrisome in relation to the Palestinian bid for recognition as a state.  As long as Palestine is not a state, it cannot become a member of the ICC, and Israeli conduct on Palestinian territory is not subject to ICC jurisdiction (unless the UN Security Council refers the matter to the to the ICC, or Israel joins the ICC – both unlikely events in the foreseeable future). Palestine’s “non-state” status is the reason the Palestinian bid for ICC investigation in 2009 was rejected last April by the ICC Prosecutor. But if Palestine gains recognition as a state from the members of the UN, it could then ask to join the ICC, and then international crimes committed in its territory could be subject to ICC jurisdiction.

Notably, this does not mean that we will be seeing Israeli generals and politicians hauled off to The Hague on November 30. The ICC gains jurisdiction only prospectively, so alleged crimes committed before the new member joined are not subject to ICC investigation. Second, the ICC would only have jurisdiction over crimes committed on Palestinian sovereign territory, but where that territory starts and ends is entirely unclear and will doubtlessly be subject to prolonged legal wrangling. Third, even if alleged crimes have been committed (and this needs to be investigated on a case by case basis), because of the ICC complementarity regime (on which I have already commented in +972), the Prosecutor will only investigate cases that Israel has itself neglected to investigate. Finally, the Prosecutor will only apply his or her very limited resources to those cases considered to be the most grievous violations of international law. As inhumane as the occupation of Palestine is, even if the Prosecutor is convinced that specific crimes have been committed in the occupied territories, it is unclear whether he or she will also think that these crimes are grave enough to warrant her attention in light of other instances of international crimes committed around the world.

Despite these four caveats, Israel’s leaders are right to be worried about potential ICC investigations into Israeli conduct in the occupied territories. The mere launch of an investigation against Israeli leaders could turn them into diplomatic pariahs. But the best means to avoid this is, of course, to refrain from committing crimes, rather than to avoid being investigated for them. And more important still, to acknowledge the Palestinian right to statehood, so that November 29 can be celebrated as the day the right of both Palestinians and Israelis – to live as free and sovereign peoples – was recognized.

Noam Wiener is an Israeli doctoral candidate at the University of Michigan Law School. His research focuses on international criminal law.