Considering that Palestine managed to become the first non-State to join the ICC list of member States, it does not come as a surprise that the Palestinian Authority is now attempting to use the international court as a pawn in its own chess game. By bringing matters, which are of no international concern whatsoever, before the one permanent international criminal court in the world, the PA manages to attract global media attention to anything and everything they see fit.
For the average Joe, headlines of ‘Palestine filing a report to the ICC over the recent firebombing’ sound very serious. In fact, just by filing this report, the average uninformed reader automatically assumes that the alleged crimes themselves fall under the purview of the jurisdiction of the ICC, meaning that the alleged crimes automatically assume the position of international crimes. It is an intelligent and manipulative move. But what the headlines fail to define is a little legal term called “complementarity”.
The very function of the ICC is to prosecute the most heinous crimes when the State in which they occurred fails to do so. In other words, the court’s function is to prevent impunity, and ensure that a State can never shield perpetrators of these crimes. The principle of complementarity ensures that the ICC does not intervene in prosecutions unless the national State is “unwilling or unable” to prosecute the individual(s) in question. In addition to that, the court has jurisdiction only over international crimes. An “international crime” is not the same as a transnational crime. In other words, a crime does not become international just because it involves people of different nationalities, or people crossing borders in the commission of the crime. There are only a handful of defined international crimes, including war crimes, crimes against humanity, torture, and genocide. These crimes, in turn, have very specific elements. A crime against humanity, for instance, cannot be said to have been perpetrated unless the act was significantly widespread and systematic (committed according to an organizational policy). A war crime is a violation of one of the “grave breaches” of the Geneva Conventions (e.g. murder of civilians, torture of prisoners of war), and is, by virtue of its substance, applicable to soldiers or other non-State actors engaging in hostilities (i.e. paramilitary groups) who attack civilians or other “protected persons” under the Geneva conventions (wounded, shipwrecked soldiers, etc.).
A single act of arson, which happened to cause the death of a baby, however horrible and sad, will never stand a chance of being investigated by the ICC. First, because it simply does not fulfill the criteria of any of the international crimes. Second, because Israel is not unwilling or unable to prosecute the responsible individuals. To the contrary, Israel has exuded a clear willingness to bring to justice the perpetrators of the attack. Side note: that is more than you can say about the PA when innocent Israeli civilians have been brutally murdered by Palestinian citizens.
Now, it appears that in addition to bringing this issue before the ICC, the PA has expressed its intention to request the UN Security Council to blacklist the perpetrators as Zionist terrorists. Emotional words like “terrorist” surely sound dramatic, but again, these empty threats are nothing but a media ploy to gain sympathy for the Palestinian cause. The UN Security Council has only one blacklist of terrorists, and that is a list of people associated with Al Qaeda or the Taliban regime. Furthermore, Israel has already labeled the arson an act of terrorism (domestic terrorism, the definition of which individual States have control, and not to be confused with international terrorism, which has no definition as of today), and will prosecute it accordingly. Again, more than you can say about their Palestinian counterparts.
In conclusion, when not even States themselves care about learning the legal aspects surrounding the bringing of a case before the ICC, it is doubtful that the general public will do so. For the rest of us, there’s always the blog section in Times of Israel.