Following the 2008-2009 Gaza conflict, various reports indicated that war crimes had been committed by both the Israeli and the Palestinian sides in the conflict; and not long after the war ended in January 2009, the Minister of Justice of the Palestinian Authority (PA) submitted a declaration accepting the jurisdiction of the International Criminal Court (ICC). Such a declaration, under Article 12(3) of the Court’s Statute, can only be made by a state. After more than three years of deliberations, the Office of the Prosecutor of the ICC issued a statement last April, declining to accept the Palestinian declaration, arguing that it was ‘for the relevant bodies at the United Nations or the Assembly of States Parties [of the ICC] to make the legal determination whether Palestine qualifies as a State’ for the purposes of the Court’s Statute.
In response to this, a number of prominent international legal scholars – including several from Leiden University – have recently signed a letter asking the President of the Assembly of States Parties (ASP) to put the issue on the agenda for the ASP’s annual session in November. So what are the chances of Palestine before the Assembly?
Of the 121 states currently party to the ICC, 75 recognize Palestine as a state, and 61 voted for its admission to UNESCO last October. According to Article 112(7)(a) of the ICC Statute, ‘[d]ecisions on matters of substance must be approved by a two-thirds majority’, while procedural matters are decided by a simple majority. As it would be difficult to classify the question of the Palestinian declaration as a procedural matter, it is doubtful that the necessary majority could be achieved in the ASP. At the very least, it would require 6 additional recognitions from states party to the ICC. But most of the states which have recognized Palestine issued their recognition immediately after the 1988 declaration of statehood by the Palestine Liberation Organization; and nowadays, the discrepancy between the 75 recognitions and the 61 ‘yes’ votes suggests that the UNESCO vote may in some respect be a better indicator of current stances, particularly in an institutional setting. Moreover, the type of institution also makes a significant difference in this context. While UNESCO is seen as relatively ‘harmless’, states may not be so forthcoming in their support where they feel that more is at stake. (For example, France, which voted in favour of Palestine’s admission to UNESCO, announced just days after the vote that it would abstain in the Security Council on Palestine’s bid for UN membership.) Providing a court with criminal jurisdiction over high-ranking officials arguably does not fall within the same category as admission to an organization whose purpose is the promotion of ‘collaboration among the nations through education, science and culture’. That being said, the question of Palestine is an extremely politicized issue – in other words, anything could happen.
However, even if we assume that the Palestinian declaration gets accepted in November, we are faced with the next question: what practical impact would this have? The Court would gain jurisdiction for crimes committed by Palestinian nationals or on the territory of Palestine (though the extent of the latter is already a source of dispute). But in order to effectively carry out investigations, not to mention arrests, the ICC would need the cooperation of both Israel and Palestine.
Much of the evidence and many of the possible perpetrators are located on Israeli territory, and Israel is not likely to cooperate with an ICC investigation, nor would it be under any legal obligation to do so. Israel is not a party to the Court’s Statute and as such, it is unaffected by the obligation to cooperate under Article 86. As a non-party to the Statute, Israel could only be compelled to cooperate if the Court’s jurisdiction were to be exercised pursuant to a Security Council referral under Chapter VII of the UN Charter. Such a referral – which would also obviate the need for the Palestinian declaration – is highly unlikely, however, due to the possibility of US veto.
In addition, if Palestine were to be accepted as a state, then the Palestinian Authority (PA) would ostensibly be considered as its government, acting to ensure the state’s cooperation with the Court – yet the Gaza Strip is under the control of Hamas, not the PA. Will Hamas cooperate with an investigation, particularly if the only real prospect of arrests is amongst its own members and those of other Palestinian militias? As the cooperation of Hamas cannot be ensured, ICC investigators could easily end up in the practically impossible situation of having to conduct an investigation in a cross-border conflict where both parties are uncooperative.
Even if the impact of accepting the Palestinian declaration would be limited in practical terms, perhaps the real significance of a favourable decision by the Assembly of States Parties would be symbolic: providing further support to the Palestinian quest for recognition.