Just as the first-ever trial at the ICC got on its way, several news agencies reported early this week that the prosecutor of the court would conduct a “preliminary analysis” of alleged crimes committed by Israelis during the recent offensive in the Gaza Strip (AFP; IHT; AP). Leaving the obviously one-sided character of the underlying allegation aside for a while let me briefly address some interesting legal aspects.
This issue certainly raises the question of whether or not the ICC could have jurisdiction over the recent events in the Gaza Strip. According to the Rome Statute, which sets up the applicable legal framework in this regard, the court may exercise its jurisdiction if any of the following three conditions are met: (I) the UN Security Council refers the situation to the court (Art. 13(b)); (II) the State to which the Gaza Strip belongs becomes a party to the Statute (Art. 12(1)); (III) the State to which the Gaza Strip belongs accepts the jurisdiction of the court on an ad hoc basis (Art. 12(3)).
That the UN Security Council would decide to refer the situation to the ICC is quite unlikely.
Option II is complicated by the fact that neither Israel nor Palestine is a party to the Rome Statute. Why is this a problem? Even if Israel or Palestine would sign and ratify the Statute today (more on this in a minute) the court’s jurisdiction would still, according to Art. 11(2) Rome Statute, only be opened up “with respect to crimes committed after the entry into force of this Statute” for this particular party. Meaning that the events of the past couple of weeks and months would not be covered. Of course the abovementioned also presupposes that the party acceding to the Statute is a State, since the Rome Statute can be signed only by States according to the wording of e.g. Art. 125. Assuming for a while that Palestine is the one most interested in drawing the court’s attention to the Gaza Strip, if you follow this line of argument it thus could really come down to the question of whether or not Palestine is a State. And since instruments of ratification etc. shall be deposited with the Secretary General of the UN (Art. 125(2)) it would essentially be up to the UN Secretary General to determine statehood for Palestine.
In view of the difficulties one would face under option II, let’s turn to the third alternative, namely the ad hoc acceptance of the court’s jurisdiction pursuant to Art. 12(3). This option seems, at least at first sight, to be more workable as it circumvents the problem of the limited jurisdiction ratione temporis mentioned above. Art. 11(2) states that the court may exercise jurisdiction even with regard to crimes committed before the entry into force of the Statute for that particular State if a declaration pursuant to Art. 12(3) has been made. But leaving the problematic of the ratione temporis behind us we are nevertheless once again faced with the issue of statehood for Palestine. Assuming that not Israel but instead Palestine would have an interest in lodging such an ad hoc declaration, which would enable the court to exercise jurisdiction, we are still faced with the requirement that Palestine be a State in order for the declaration to be accepted by the Registrar (see Art. 12(3)). The Palestine National Authority has obviously sought this path by recognizing the court’s jurisdiction on January 22 (apparently the Palestinian Justice Minister Ali Kashan after a meeting with the ICC prosecutor filed a declaration with the ICC registrar recognizing the court’s jurisdiction). According to this scenario it would be the Prosecutor, the Registrar of the ICC and at a later stage the pre-trial chamber of the court who would be faced with the question of whether or not Palestine is a State. So the essential difference from option II (besides the problem of jurisdiction ratione temporis) is that not the UN Secretary General but the Prosecutor, the Registrar and the pre-trial chamber are the ones who would determine Palestine’s statehood for the purpose of deciding the court’s ability to exercise jurisdiction.
Just to clarify, it should be mentioned that if Israel would accept the court’s jurisdiction this would only enable the court to exercise jurisdiction over Israeli nationals, not over all conduct occurred on the territory of the Gaza Strip.
To sum up, the prosecutor is probably well advised to “carefully examine all relevant issues, including on jurisdiction” and to emphasis to the public and the various parties affected by any decision that “the preliminary analysis conducted by the office of the prosecutor is not indicative that an investigation will be opened.”