Palestine’s ICC Option and the Politics of Peace

Israeli and Palestinian negotiators resumed talking this summer after a three-year break, in pursuit once more of a mutually-satisfactory political settlement. But the renewed talks, supported by the United States, have left one issue carefully on the sidelines: the status of a 2009 move by the Palestinian National Authority that envisaged a possible investigation of alleged Israeli war crimes by the International Criminal Court.

Some commentators have explicitly surmised that shelving the ICC option was a precondition for the resumption of negotiations. There remains, however, at least one potential for complication: Can the ICC Prosecutor open an investigation on her own volition?

The saga dates back to January 2009, when the Palestinian National Authority submitted a declaration accepting the ICC’s jurisdiction retroactive to July 1, 2002, the date the Rome Statute establishing the ICC came into force. While the declaration made no reference to any specific events, it directly followed Operation Cast Lead, an Israeli military campaign on the Gaza Strip that killed hundreds of civilians and displaced thousands more.

It took the Office of the Prosecutor (OTP) three years to decide to not decide what to do. In April 2012 the OTP said that it was unclear whether Palestine was a “state,” as required by the Rome Statute. It concluded that if, in the future, the relevant bodies settled the matter of Palestinian statehood, it could consider allegations of crimes committed there.

Then, in November 2012, the UN General Assembly (UNGA) upgraded Palestine’s status to “non-member observer state.” Three months later, the Palestinian foreign minister announced that the Palestinians would be seeking an ICC investigation against Israel. Aside from some talk, however, nothing happened.

So where does this leave us? Did the UNGA vote automatically enable the ICC to move forward, or must Palestine reissue a declaration to establish jurisdiction?

Statements from the OTP are split. In April 2012, then-Prosecutor Luis Moreno-Ocampo said that “as soon as the General Assembly establishes that Palestine is an observer state, then we can proceed.” This suggests that the vote was sufficient in itself to spark an investigation. However, the new prosecutor Fatou Bensouda said that “the ball is now in the court of Palestine,” and that after the vote the court is “waiting for them” to return. This implies that some additional activity on the part of Palestine is required to move the ICC machinery into action.

If Palestine wasn’t sufficiently recognized as a state at the time of the 2009 declaration, its legal effects can either be interpreted as entirely null and void, or as merely suspended pending Palestine’s status determination. If it’s the latter, then after the UNGA vote, the declaration remains in effect, and the ICC has jurisdiction.

The answer depends on the queston of the retroactivity of recognition of a state or government, a well-established principle of international law. In his foundational “Recognition in International Law” in 1947, Hersh Lauterpacht (a future Judge at the International court of Justice and member of the UN International Law Commission) wrote that “[r]ecognition is retroactive in the meaning that, once granted, it dates back to the actual commencement of the activities of the recognized authority, with regard to international rights and duties.” The 1951 treatise “The International Law of Recognition” states clearly that “[t]he wide adoption of the doctrine of retroactivity by national courts is substantial proof of its acceptance as a doctrine of international law.” It may be seen as a necessity of stability, or one of mere convenience, but without the principle of retroactivity all prior acts of a newly recognized government would confer no title, and any political transition would constitute a blank slate. 

Therefore, declarations by Palestine are valid at least as far back as 1988, when the majority of states voted in the General Assembly to acknowledge the proclamation of the State of Palestine. At that time—and definitely by 2009—there existed an executive authority capable of making declarations and entering into international agreements. Considering the overwhelming pre-vote recognition of Palestine by other states and many international organizations, the 2012 UNGA vote should be seen as a mere formality recognizing Palestine’s already-established political status.

Of course, even if the prosecutor is authorized to open an investigation, that’s not to say she will. The OTP would likely face heavy criticism if it were to enter into a fragile, highly politicized situation. It has even been suggested that the court would suffer funding cuts from European funders if it moves forward. It’s also possible that, even if expectations for the talks are low, the OTP should see how the negotiations play out. On the other hand, however, in order to maintain its beleaguered credibility, the ICC must stay—or at least appear to stay—above the political fray. Initiating an investigation would signal that, instead of simply acting on a referral from one side or the other, the prosecutor is pursuing an impartial investigation.

Regardless, if and when any investigation commences, justice for both Palestine and Israel should be as neutral and decontextualized from the political wrangling as possible. But in the meantime, it seems likely that the search for a lasting peace settlement will trump all other considerations.