Would the International Criminal Court prosecutor opening an investigation into Palestine be a good idea?

Sarah Teich is a lawyer and a consultant to the Canadian Coalition Against Terror. She holds a law degree from the University of Toronto and a master’s degree in Counter-Terrorism. She spent four months in 2016 working with the Office of the Prosecutor of the International Criminal Court (ICC) in The Hague and received a commendation for her work.

On December 20, 2019, the Prosecutor of the International Criminal Court, Ms. Fatou Bensouda, announced that she was prepared to open an investigation into the situation in Palestine, following a four-year  preliminary examination. Ms. Bensouda articulated that she was satisfied there was a “reasonable basis to believe” that war crimes have been or are being committed on Palestinian territory–which she defines as the West Bank, including East Jerusalem, and  Gaza.

This is a loaded announcement, and a brief backgrounder on how the Court operates and the history of Palestinian interaction with it–is essential to understanding this development.

Generally, there are three stages to Prosecution at the Court: the preliminary examination, the investigation, and the trial. The Office of the Prosecutor (OTP) currently has several situations  in preliminary examination. Most situations are referred to the Court by the State Party in question (“self-referrals”), from governments who lack the capacity to take on these cases domestically. The OTP conducts many preliminary examinations, but not all  make it to the investigation stage. For the OTP to open an investigation, it needs to be satisfied that there is a reasonable basis to believe that crimes have been committed, that the Court has jurisdiction over the situation, that no domestic proceedings  are covering the issue, and that the situation is of sufficient gravity to warrant use of the Court’s limited resources.

Critically, the OTP only has jurisdiction to investigate crimes that occur in the territory of a State Party, or crimes by State Party nationals. That is, unless the Court has received a specific declaration by a non-state party accepting jurisdiction, or a mandate from the U.N. Security Council to investigate a specific situation.

Despite Ms. Bensouda’s assertion that there is a “reasonable basis” to believe war crimes have been committed in Palestine, there are serious jurisdictional concerns to be considered before any  investigation may be initiated.

For starters, is Palestine really a “State”, such that it can confer jurisdiction to the Court? Ms. Bensouda posits that because Palestine is a State Party to the Rome Statute, that is sufficient  to close this debate and label Palestine a State. However, this interpretation is inconsistent with well-established principles of public international law.

Specifically, article 1 of the Montevideo Convention, which Ms. Bensouda herself acknowledges as “the most accepted formulation of statehood criteria in international law”–establishes four criteria  for statehood. These criteria are permanent population, defined territory, effective government, and capacity to enter into relations with foreign states. Palestinians do appear to have a permanent population, but the other three criteria are lacking. To fulfill the territorial requirement, there must be exclusive control of territory within fixed boundaries. Then, there must be effective government capable of controlling the territory. As Ms. Bensouda acknowledges, the Palestinian Authority does not have control over all territories claimed. The Palestinian Authority does not control Gaza (Hamas does), and Israel has full control over East Jerusalem and large swaths of the West Bank. Palestine may have some capacity to enter foreign relations, as it is able to sign treaties and join international bodies–but this is also disputed, due to provisions of the Oslo Accords.

Ms. Bensouda suggests that this type of analysis should essentially be side-stepped because Palestine is already a State Party to the Rome Statute. But perhaps Palestine should not have been permitted  to become a State Party. In fact, this was the position taken by the Government of Canada; that Palestine should not have been permitted to become a State Party. Canada believed this was both legally wrong, and also diminished the likelihood of a sustainable, negotiated peace between Israel and Palestine–down the road.

Even if the Court gets past the difficulties with Palestinian statehood, there is the next question of territorial jurisdiction. Does the Court have jurisdiction to investigate crimes in the West Bank, East Jerusalem, and Gaza? Palestine is a State Party to the Rome Statute, but Israel is not, and the Court only has jurisdiction over crimes committed in the territory of a State Party. So, the next question becomes: what constitutes the territory of  Palestine? Does the territory of Palestine include the West Bank, including East Jerusalem, and Gaza? That is the position taken by Palestine and adopted by Ms. Bensouda. However, for the Court to take this position would be problematic. As Ms. Bensouda acknowledges, these borders are disputed.

Precisely because of the disputed nature of the borders, Ms. Bensouda is now asking a panel of Court judges to rule on the scope of her territorial jurisdiction – to “confirm” that Palestinian  territory for purposes of jurisdiction includes the West Bank, East Jerusalem, and Gaza. For the Court to step into this highly politicized arena and to essentially draw the borders of two states without their consent–is a dramatic overstep and would be  detrimental to the ongoing peace process. These questions that the Court is now tasked with answering, are matters of policy and diplomacy, not international crime. The issues are best left to the negotiation table, not the courtroom.

When Palestine became a State Party, Canada objected. Canada also objected to Palestine’s “self-referral” to the Court of this situation back in 2015. Canada should continue to object to these  moves. This is not what the International Criminal Court was designed to do.