No, they can’t sue Palestine at the ICC

In April, The Times of Israel reported that the NGO Shurat HaDin had prepared indictments charging Palestinian leaders with terrorism, hoping to trigger a case against them at the International Criminal Court (ICC). The article explains that Shurat HaDin has “standing” before the ICC and can therefore present the Court with indictments against Palestinians. The NGO’s director is quoted claiming that these indictments “are the only means of deterring the Palestinians from rushing out and joining the ICC in order to indict Israelis for crimes against humanity.” The article notes that the State of Israel cannot “bring a suit” before the ICC because it withdrew from the Court after joining it for a short period.

The April article contains a number of inaccuracies. First, the ICC is not a platform for states or NGOs to sue individuals. The ICC is a criminal court and only its prosecutor can investigate events and charge individuals, once the Court has jurisdiction over the events in question. Secondly, jurisdiction can be granted to the ICC only by states or the UN Security Council and not by NGOs (Palestine arguably qualifies as a state for this purpose). Thirdly, the ICC investigates events on a given territory (a “situation”) and does not at the outset focus on particular individuals or a party to the conflict. Thus, if Palestine indeed joins the ICC, it will be authorising the Court to investigate violations committed by both Israelis and Palestinians. Finally, Israel never joined the ICC. It merely signed the Rome Statute, the international treaty that created and regulates the ICC. To join the Court, Israel needs to ratify the Statute.

When a state ratifies the Rome Statute, it essentially permits the ICC to investigate and prosecute alleged international crimes – including war crimes, crimes against humanity and genocide – committed on its territory or by its nationals. Israel refused to ratify the Rome Statute because it objected to a provision that seems to define Israeli settlements in the West Bank as war crimes (the provision states that direct or indirect transfer of population by an occupying power to occupied territory is a war crime).

Israel did not wish to authorise the ICC to prosecute Israelis for settlement activities, and therefore decided not to join the Court. However, in light of the November 2012 recognition of Palestine as a “non-member observer State” in the UN, the door may be open for Palestine to qualify as a “state” for the purpose of granting jurisdiction to the ICC over activities in Palestinian territory. If neither Israel nor Palestine joins the ICC, the Court will be unable to investigate events in Israel/Palestine unless the UN Security Council refers the situation to the ICC (which is unlikely given the US veto power).

So is Shurat HaDin’s project worthless? Not necessarily. If Israel or Palestine join the ICC and thereby grant the Court jurisdiction over the situation in Israel/Palestine, the ICC Prosecutor may take into account information received from NGOs in developing its investigation and prosecution strategy in Israel/Palestine. In other words, Shurat HaDin cannot jumpstart a case; but it can help the case develop once it has been initiated following the ICC’s assertion of jurisdiction over events in Israel/Palestine.

ICC jurisdiction over Israel/Palestine would not be limited to settlement activities, and the Court may attempt to investigate other violations such as attacks against civilians, torture, arbitrary detention, etc. Under the principle of complementarity, a guiding principle of the ICC, Israel could block ICC proceedings against Israelis by investigating the relevant allegations itself (without having to join the ICC). While this could work for allegations of torture or arbitrary detention, it is unlikely that Israel would investigate settlement activities, which do not violate Israeli law (and are, in fact, state policy). However, there might be another way for Israel to prevent an ICC investigation into the settlements, which, ironically, would require Israel to join the ICC: submitting a declaration under Article 124 of the Rome Statute.

Rome Statute Article 124 allows a state to join the ICC but bar the Court from investigating war crimes (but not crimes against humanity or genocide) committed on that state’s territory or by its nationals, for a period of seven years. As I explain elsewhere, even if Palestine joins the ICC, an Israeli declaration under Article 124 could prevent the Court from investigating settlement activities in the first seven years after Israel joins the ICC. During this period, Israel could resolve the settlements issue through negotiations with the Palestinians. If negotiations fail, Israel’s best way to avoid ICC proceedings concerning the settlements would be to address the allegations through existing judicial means or transitional justice mechanisms adopted for this purpose (assuming that such alternative means would meet the ICC’s complementarity requirements).

Joining the ICC would benefit Israel in other ways as well. For example, as a party to the Rome Statute, Israel could refer crimes from all over the world to the ICC, suggest candidates for senior ICC positions, and propose amendments to the Statute. In addition, the ICC would have jurisdiction to investigate and prosecute international crimes committed in Israel but which Israel is unable to investigate due to its inability to apprehend the perpetrators (e.g. rockets fired from Gaza into Israel targeting Israeli civilians). Moreover, joining the ICC would send a clear message, domestically and internationally, that Israel is a rule of law and peace-loving nation.