This is the second installment in a five-part series, "Israel Attacks the International Criminal Court but Its Arguments Fall Flat." The first installment was: "Pounding the Table, Israeli Officials Malign International Criminal Court."
"No state, no standing, no case."
So said Israeli Prime Minister Benjamin Netanyahu in arguing that the International Criminal Court (ICC) prosecutor's decision to open a preliminary examination into alleged Israeli abuses in Palestine was faulty under the ICC's own rules. If the ICC inquiry goes forward it could eventually lead to the prosecution of Israeli officials, military personnel, settlers and the officers of companies serving the settlements.
As reported by the Jerusalem Post in the article, "Netanyahu: ICC decision to launch inquiry against Israel is 'absurd'":
"Israel rejects the absurd decision of the ICC prosecutor," [Netanyahu] said. "It's absurd for the ICC to ignore international law and agreements, under which the Palestinians don't have a state and can only get one through direct negotiations with Israel."
To accept a case and prosecute an individual, the ICC must have both subject matter and territorial jurisdiction at the time the alleged criminal event happened.
The ICC has subject matter jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes and aggression. Brief descriptions of the alleged crimes committed by Palestinian armed groups and by the Israeli government were provided in a report issued by the ICC prosecutor's office on November 12, 2015. The report indicates that the ICC prosecutor's office is currently at the stage of conducting a review to determine whether any of these alleged crimes may be considered war crimes, crimes against humanity or genocide, and therefore within the subject matter jurisdiction of the court.
ICC territorial jurisdiction over the crime of aggression will only be available if the state of the accused person is a party to the Rome Statute of the International Criminal Court. Israel is considered a state, but it is not a party to the Rome Statute and Israel has not filed a declaration. Thus, unless Israel becomes a party to the Rome Statute, the court does not have jurisdiction to prosecute Israeli nationals for the crime of aggression.
By contrast, for genocide, crimes against humanity and war crimes, territorial jurisdiction is available if either the state of the accused person or the state where the alleged crime occurred is a party to the Rome Statute. If neither of these states is a party of the Rome Statute, or if neither was a party at the time the alleged crime occurred, by submitting a declaration, either one of them can accept the jurisdiction of the ICC for the crime in question.
The rule that jurisdiction is available if the location where the alleged crime occurred is a state party was confirmed by the prosecutor in her decision in the Mavi Marmara flotilla case. The ICC prosecutor decided that the court had jurisdiction over Israelis for war crimes, crimes against humanity and genocide if the location where the crimes were committed was on the territory, vessels or aircraft of an ICC state party. The Mavi Marmara, where crimes were allegedly committed by Israeli forces, was a vessel registered in Comoros, which has been an ICC state party since 2006.
Palestine both submitted a declaration and submitted the paperwork to become a state party of the Rome Statute. But as Netanyahu pointed out, Palestine could only become a state party or validly submit a declaration under the Rome Statute if the ICC considers Palestine to be a state. Alternatively, under the Rome Statute, ICC jurisdiction is available - even if Palestine is not considered to be a state - if the UN Security Council votes to refer the situation to the prosecutor.
Thus, unless Israel - the state of the persons accused by Palestinians - becomes a party or accepts the jurisdiction of the ICC, or the United States withholds its veto and allows the Security Council to refer the situation to the prosecutor, territorial ICC jurisdiction over crimes committed on the territory of Palestine is only available if, crucially, Palestine is considered to be a state by the ICC.
Consideration as a state by the ICC would enable Palestine to be (a) a state where the conduct occurred; (b) a state party to the Rome Statute of the ICC; (c) a state making a declaration accepting jurisdiction for crimes committed on its territory before it became a state party to the Rome Statute of the ICC; and (d) a state making the referral to the prosecutor so that the process can be initiated at the ICC. If the Israeli argument that Palestine is not a state was accepted by the ICC, short of Security Council referral or Israel itself becoming a state party, the court would not have jurisdiction. The possibility of the ICC moving to the investigation and prosecution stages for alleged crimes committed by Israelis in Palestine would be blocked.
The ICC Prosecutor Already Explained Why Palestine Is a State
In announcing her decision to open the preliminary examination in January 2015, prosecutor Fatou Bensouda had not overlooked the question of whether Palestine was a state. She described what had changed since her office had rejected a previous application by Palestine to join the ICC in 2009. Back then, after lengthy review, the sole reason given by the prosecutor for refusal to launch an investigation was that the ICC did not consider Palestine to be a state.
In her January 2015 statement, Bensouda said that passage of UN General Assembly Resolution 67/19 on November 29, 2012, changed the status of Palestine. Passage of the UN resolution upgraded Palestine from "observer entity" at the UN to "non-member observer state" status. She noted that a majority of 138 UN member states had voted in favor, nine had voted against and 41 had abstained.
Palestine would be able to accept the jurisdiction of the Court from 29 November 2012 onward, pursuant to articles 12 and 125 of the Rome Statute. The Rome Statute is open to accession by 'all States,' with the UNSG [UN Secretary General] acting as depositary of instruments of accession.
The UN Secretary General, in his capacity as depository, had accepted Palestine's accession to the Rome Statute and that Palestine became the 123rd State Party to the ICC. It was welcomed as such by the President of the Assembly of States Parties to the Rome Statute.
The Office considers that, since Palestine was granted observer State status in the UN by the UNGA [United Nations General Assembly], it must be considered a "State" for the purposes of accession to the Rome Statute (in accordance with the 'all States' formula).
Bensouda gave similar consideration as to why Palestine had become a state for ICC purposes in a "Report on Preliminary Examination Activities" issued by her office on November 12, 2015.
In asserting that Palestinians don't have a state, Netanyahu's statement failed to mention or respond to any of the legal or factual points made by the ICC prosecutor in her January 2015 statement regarding why Palestine had become a state for the purpose of ICC membership.
Nor did a 277-page report, "The 2014 Gaza Conflict: Factual and Legal Aspects," issued by the government of Israel six months later. Instead, the Israeli government report asserts in a footnote that "the 2014 Gaza Conflict involved non-state actors (Hamas and other terrorist organizations in the Gaza Strip) and did not take place in the territory of another state (as no state currently exists in the Gaza Strip)." Contradictorily, the Israeli government report did recognize Hamas' electoral victory in Palestinian elections in 2006, and the existence of the reconciliation agreement between Fatah and Hamas in April 2014 and the unity government that reconciliation agreement created on June 2, 2014, under Palestinian President Mahmoud Abbas.
Netanyahu's Argument Conflicts With UN Charter
Nor did Netanyahu explain how his assertion that Palestinians "can only get a state through direct negotiations with Israel" - that is, through reaching agreement with the occupying power - squares with "respect for the principle of equal rights and self-determination of peoples" provided in Article 1 of the UN Charter, which the State of Israel "unreservedly" accepted upon its admission to the UN on May 11, 1949. In addition, Article 103 of the UN Charter provides that obligations under the Charter, such as the obligation to respect the principle of equal rights and self-determination, "shall prevail" over "obligations under any other international agreement."
ICC Prosecutors Applied a Stricter Standard
Noteworthy is the fact that in both 2009 and in 2015, the ICC prosecutors applied a stricter standard for their decisions to reject or accept Palestine as a state than does the UN. As the UN says on its website, "The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government." Under the UN criterion, what counts is the number of states and governments that recognize the new state.
As of January 16, 2015, 135 countries had officially recognized the State of Palestine. Based on the looser, generally accepted standard for statehood described by the UN website, the ICC could have considered Palestine to be a state even without the vote of the UN General Assembly to accept Palestine as a non-member observer state.
Netanyahu did not address the fact that the standard for being considered a state enforced by ICC prosecutors was tougher than the generally accepted standard. Thus, Israeli political and military leaders are unlikely to have much confidence that their argument - that the ICC lacks jurisdiction because Palestine is not a state - will prevail.
Israel Opens Dialogue With ICC
Less than two months after the Israeli government published its 277-page report, it opened a dialogue with the ICC over the Gaza preliminary examination. However, an Israeli "senior official" told the Israeli newspaper Haaretz on July 9, 2015, that the "purpose of contact with the ICC prosecutor is only to make Israel's position clear to the court that the ICC does not have any authority to hear Palestinian complaints on the matter":
"This does not mean we are cooperating with the preliminary examination the ICC is conducting at the Palestinian request," said the Israeli official, who asked to remain anonymous due to the diplomatic sensitivity of the issue.
"The Israeli position, like the position of other countries around the world, is that the International Criminal Court in The Hague has no authority to hear the Palestinian request since Palestine is not a country and because the Israeli judicial system is independent and can handle complaints on the matter of alleged war crimes," he added.
Coming Next: The third installment of this five-part series will address Prime Minister Netanyahu's contention that the Israeli legal system is "world-renowned and utterly independent." If true, ICC rules will require the prosecutor to drop her inquiry and defer all cases to the Israeli legal system for investigation and prosecution. Netanyahu is correct that the ICC's Rome Statute provides that the prosecutor will defer cases to the Israeli legal system for investigation and prosecution unless she finds that the Israeli legal system is not independent and impartial or that its proceedings do not present a genuine intent to bring the person concerned to justice. Stay tuned for an examination of the evidence regarding how the Israeli legal system works - with regard to Palestinians living under occupation - to determine whether Israeli political and military leaders can have confidence in this provision to put a stop to the ICC inquiry.