THE ICC AND THE ISRAEL-PALESTINE CONFLICT: CURRENT DEVELOPMENTS, IMPLICATIONS AND FUTURE SCENARIOS
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THE ICC AND THE ISRAEL-PALESTINE CONFLICT: CURRENT DEVELOPMENTS,
IMPLICATIONS AND FUTURE SCENARIOS
Introduction
Will the conflict between Palestine and Israel come to the International Criminal Court? This
fraught question has received considerable media and political attention in the past few weeks
while US Secretary of State Kerry is striving to revive the peace negotiations between Israel and
Palestine.
In particular, on May 2013, the ICC Prosecutor declared that her office will open a preliminary
examination in relation to the May 2010 Israeli raid on the humanitarian aid flotilla bound for the
Gaza Strip. This decision came after the referral on May 14th, 2013, by the authorities of the Union
of the Comoros. The Comoros are an archipelagic state located between Africa’s mainland and
Madagascar, where one of the vessels was registered.1 It has been a State Party to the ICC since
August 2006. This preliminary examination, by its limited scope and unique legal features, raises
questions as to the evolution of the ICC’s jurisprudence and jurisdiction, in relation to a broader
situation: the enduring conflict between Israel and Palestine.
More generally, the Palestinian Authority has repeatedly alluded to its intention to refer the
situation to the ICC should Israel continue its settlement policy. This possibility has raised some
political and media turmoil. It has particularly arisen with the UN General Assembly vote on
November 29th, 2012 that granted Palestine the status of “non-member observer state”. This new
status affects the arguments used by the OTP to refuse to investigate the situation after Palestine
lodged a special declaration accepting the jurisdiction of the Court in January 2009. In a decision of
April 2012, the OTP declared that only a state can refer a situation to the ICC and that given the
controversy over the statehood of Palestine, it was not the role of the ICC but rather of the UN
General Assembly to determine whether an entity should or not be recognized as a state.2 Yet, if
Palestine eventually referred the situation to the ICC, several important legal questions would be
left pending, especially concerning the temporal and territorial jurisdiction that the ICC would
have. Moreover, it is not clear if Palestine's intention to refer the situation is real or if it is using the
possibility as a mere political leverage both to deter Israel from continuing its settlement policy
and to kick start the peace process.
This paper aims to explore the two main scenarios that could lead the Court to build cases
involving Palestinian and Israeli individuals: either as a result of the recent referral by Comoros, or
through a referral of the situation to the ICC by Palestine. By taking into account both legal and
political factors, this paper considers how a potential case involving nationals of the two countries
would both be determining for the Court’s jurisprudence to come, and affect the international
1
OTP, Referral under Articles 14 and 12 (2) (a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom
Flotilla situation, May 2013, available at http://www.icc-cpi.int/iccdocs/otp/Referral-from-Comoros.pdf
2
See the decision available at http://www.amicc.org/docs/SituationinPalestine030412ENG.pdfAMICC | THE ICC AND THE ISRAEL-PALESTINE CONFLICT: CURRENT DEVELOPMENTS , IMPLICATIONS AND
FUTURE SCENARIOS
outlook on it. In particular, this paper seeks to address the crucial United States’ concern that this
potential case is raising.
The preliminary examination in the Gaza flotilla: an indirect attempt to involve the ICC in the
Israel-Palestine conflict?
Circumstances of the referral
On May 14th, 2013, the ICC Prosecutor received a referral from the Union of the Comoros, “with
respect to the 31 May 2010 Israeli raid on the humanitarian aid flotilla bound for Gaza Strip”. 3 The
flotilla was a humanitarian aid convoy, composed of eight vessels whose 700 passengers were
mainly activists from several international organizations and 36 different countries. The flotilla was
intended to reach the inhabitants of the Gaza Strip by challenging an Israeli-imposed blockade. Six
of the vessels were allegedly attacked by Israel Defense Forces (IDF) on May 31st, 2010. The referral
specifically emphasizes their interception of the MV Mavi Marmara, a vessel registered in the
Union of the Comoros, but owned by the Turkish organization Charity Foundation for Human
Rights and Freedoms and Humanitarian Relief (IHH). Most of the crimes allegedly took place
onboard this vessel: nine Turkish citizens died, more than dozens were seriously injured and a
hundred from different nationalities detained. The referral also mentions the incidents that
allegedly occurred onboard the M.V. Eleflheri Mesogios (or Sofia) registered in Greece and the MV
Rachel Corrie registered in Cambodia. Comoros, Greece and Cambodia are all State Parties to the
Rome Statute. The Rome Statute allows the ICC to exercise its jurisdiction over crimes committed
onboard a vessel registered to a State Party to the ICC.4
The incident triggered an international outcry and a severe diplomatic crisis between Turkey and
Israel. It led the UN to set up two committees to examine the incident: the Judge Hudson Philips
Fact Finding Mission of the UN Human Rights Council5 and the United Nations Secretary General's
Panel of Inquiry, also known as the Palmer Committee.6 Two main issues were raised: the legality
of the blockade of Gaza and the use of force by the IDF during the Gaza Flotilla incident. The Judge
Hudson Philips Fact Finding Mission report considered the blockade illegal whereas the Palmer
Committee report found it legal. However, both of them concluded that excessive and
unreasonable force was used by the IDF in their interception of the Mavi Marmara, resulting in
unacceptable casualties. The Hudson Philips Fact Finding Mission stated: “It is impossible to
legitimize or defend such a conduct out of security reasons or other reasons. These actions
seriously violated the international law and human rights law”.
In a rapprochement brokered by US President Barack Obama, Israeli Prime Minister
Netanyahu apologized to his Turkish counterpart Erdogan on March 22nd, 2013, calling the incident
3
OTP, Referral under Articles 14 and 12 (2) (a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom
Flotilla situation, May 2013, available at: http://www.icc-cpi.int/iccdocs/otp/Referral-from-Comoros.pdf
4
Rome Statute, Article 12(2)(a), available at http://untreaty.un.org/cod/icc/statute/romefra.htm
5
A/HRC/15/21, Human Rights Council, Fifteenth session, Report of the international fact-finding mission to investigate
violations of international law, including international humanitarian and human rights law, resulting from the Israeli
th
attacks on the flotilla of ships carrying humanitarian assistance, September 27 , 2010, available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.21_en.pdf
6
Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011
available at : http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf
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an “operational mistake” and promised compensation and an easing of the blockade.7 The referral
by the Union of the Comoros came just days after it was reported that Israel and Turkey were
reaching an agreement on the compensation for the Turkish victims of the incident in exchange of
the dropping of the lawsuits against IDF officers.8 However, the families of these victims rejected
this agreement and reasserted their determination to continue their legal struggle in trying
members of the Israeli military responsible for the raid while asking for the removal of the Gaza
blockade.9
A foreign ministry official of Turkey, which is not a State Party to the ICC, stressed that the referral
was not filed on behalf of the Turkish government. The referral was relayed to the ICC by Elmadag,
a large and well-established Turkish law firm with a substantial international practice. This law firm
had already filed a complaint to the ICC on behalf of the Turkish victims and the Turkish NGO,
“Foundation for Human Rights and Freedoms and Humanitarian Relief” on October 14th, 2010,
which is still pending. Elmadag approached the government of Comoros to propose that the law
firm relay in its name a referral to the ICC naming the Israelis allegedly responsible for the attack.
Comoros, which does not recognize Israel and had registered the ship where the alleged crimes
were committed, accepted.
A preliminary examination aims to determine whether the criteria to open a formal investigation
are met. If they do, this could lead to a future trial. The OTP has the obligation to conduct a
preliminary examination after every state referral, regardless of merit. Therefore, this by no means
signals the OTP's intention to open a formal investigation (although, up to now no state referral has
ever been refused).
The Rome Statute provides that the Prosecutor is entitled to take into account, in her decision,
several factors that limit the jurisdiction of the Court.10 The Prosecutor has to determine if the
crimes allegedly committed fall into the jurisdiction of the Court, including its territorial and
temporal jurisdiction, and whether they meet the standard of seriousness, the so-called “gravity
threshold.” The OTP has also to determine if the principle of complementarity and the interest of
justice are satisfied. In the following section, the paper will address the principal questions
revolving around the issue of admissibility of the situation before the ICC.
Has the Court jurisdiction over the matter?
To fall into the jurisdiction of the ICC, the crimes must have been committed by an individual who
is a national of a State Party to the Rome Statute or on the territory of a State Party. Therefore, the
Court does not have jurisdiction through nationality over the Israelis allegedly responsible for the
attack since Israel is not a State Party. However, as the referral mentions, the crimes committed
during the event fall within the jurisdiction of the Court since they were committed aboard vessels
7 th
CNN, “Israel to Turkey: We apologize for deadly raid on Gaza-bound flotilla”, March 24 , 2013, available at
http://www.cnn.com/2013/03/22/world/meast/israel-turkey-apology
8 th
Haaretz, “Israel and Turkey near final deal on compensation for Gaza flotilla victims”, May 6 , 2013, available at
http://www.haaretz.com/news/diplomacy-defense/israel-and-turkey-near-final-deal-on-compensation-for-gaza-
flotilla-victims-1.519575
9 th
Today’s Zaman, “Activists not to drop charges against Israeli soldiers”, May 12 , 2013, available at
http://www.todayszaman.com/news-315162-activists-not-to-drop-charges-against-israeli-soldiers.html
10
Rome Statute, article 53 available at http://untreaty.un.org/cod/icc/statute/romefra.htm
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registered to a State Party to the Rome Statute (Comoros, Cambodia and Greece). The Rome
Statute makes it clear that a vessel registered to a State Party qualifies as the territory of that
state.11
Is the case admissible before the Court? Are the crimes falling into the jurisdiction of the Court?
The ICC is mandated to prosecute only certain categories of crimes namely genocide, crimes
against humanity and war crimes. In order for a case to be admissible before the Court, its alleged
crimes have to fit into one of these specific categories. They must also meet the standard of
seriousness: the so-called “gravity threshold”, which is an express limitation on the Court's
jurisdiction.
The referral claims that the Gaza flotilla attacks amount to the commission of war crimes and
crimes against humanity which fall into the jurisdiction of the ICC. In order to emphasize the
gravity of those crimes, the referral invokes the strong international reaction and the alleged
intended Israeli plan to “use violence to dissuade the humanitarian flotilla to directly reach a
blockaded Gaza with an initial aim to cause a large bloodshed by killing more numbers.” It also
points out "the nexus between the attack on the flotilla and the overall Israel-Palestine conflict"
suggesting that the flotilla raid is directly linked to the Gaza situation under the Israeli blockade
and more generally to the whole Israel-Palestine conflict.
Under the Rome Statute, the crimes qualified as war crimes are those which violate the customary
law of war as established in the Geneva Conventions of August 12th, 1949. This qualification applies
in particular when those crimes are committed as part of a plan, policy or large-scale commission
in the context of an armed conflict (international or non-international).12 The Rome Statute makes
it clear that “isolated and sporadic acts of violence or other acts of a similar nature” will not be
considered as war crimes. The alleged crimes could be considered as crimes against humanity if it
is proved that they were “committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack”.13
UN bodies have already investigated the incident and concluded that the actions committed
onboard the vessels were contrary to international law. A UN report stated that
“there is clear evidence to support prosecutions of the following crimes within the terms of
article 147 of the Fourth Geneva Convention: willful killing, torture or inhuman treatment,
willfully causing great suffering or serious injury to body or health.”14
The latter crimes could fit the categories on which the Court has jurisdiction.
11
Rome Statute, article12 (a), available at http://untreaty.un.org/cod/icc/statute/romefra.htm
12
ICC, Elements of Crimes, Article 8, available at http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-
45BF9DE73D56/0/ElementsOfCrimesEng.pdf
13
Rome Statute, Article 7 (1), available at http://untreaty.un.org/cod/icc/statute/romefra.htm
14
A/HRC/15/21, Human Right Council, Report of the international fact-finding mission to investigate violations of
international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the
th
flotilla of ships carrying humanitarian assistance, September 27 , 2010, available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.21_en.pdf
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However, even if the alleged crimes were proved to fall into these categories, these acts would
have to meet the gravity threshold. The Rome Statute requires that the “jurisdiction of the Court
shall be limited to the most serious crimes of concern to the international community as a
whole.”15 This criterion is a condition which qualifies what cases will be brought before the Court.
A case will be considered inadmissible if it “is not of sufficient gravity to justify further action by
the Court.”16 In developing this key notion in its jurisprudence, the Court made it clear that gravity
is defined both in quantitative and qualitative terms. Yet, the full definition of these terms is still
evolving. However, there are some relevant criteria, such as the scale and the manner of
commission of the crimes including the number of direct and indirect victims, the extent to which
the crimes were systematic or resulted from a plan or organized policy. Some aggravating factors
are part of the assessment such as targeting especially vulnerable victims. The OTP also declared
that it will take into account “the broader impact of the crimes on the community and on regional
peace and security, including long-term social, economic, and environmental damage.”17 The
qualitative factors also include the “social alarm” that a conduct may cause in the international
community. This concept has been developed through several decisions of the Court and was
defined as a “subjective and contingent reaction” to crimes “rather than their objective gravity.”18
This incident indirectly raises an important legal question for the Court that could influence how it
will handle this case as well as future ones. The Rome Statute requires State Parties to refer an
entire situation. Therefore, could this incident qualify as a situation given its limited scope? This is
a first for the Court to open a preliminary examination on an incident that occurred onboard a
vessel registered to a State Party. Some argue that the drafters of the article assumed that the OTP
would investigate crimes committed at sea only as part of a larger situation.19 Yet, even if all the
situations currently being investigated by the OTP have much broader scope and do not focus on
only one incident, the Rome Statute makes it clear that even a single crime can qualify as a
situation.20
Even though it is in theory not legally disqualifying, the Court may be reluctant to qualify a single
incident as a situation unless the event is clearly as serious as others in the ICC’s caseload.21 Even if
it is not the only factor, the number of victims is important for the OTP to assess the situation’s
gravity. This offers a practical advantage because the number of victims can be an easily
15
Rome Statute, Article 5(1), available at http://untreaty.un.org/cod/icc/statute/romefra.htm
16
Rome Statute, Article 17(1), available at http://untreaty.un.org/cod/icc/statute/romefra.htm
17 th
OTP, DRAFT Policy Paper on Preliminary Examinations, October 4 , 2010, available at http://www.icc-
cpi.int/NR/rdonlyres/9FF1EAA1-41C4-4A30-A202-
174B18DA923C/282515/OTP_Draftpolicypaperonpreliminaryexaminations04101.pdf
18
ICC-01/04-169, the Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Prosecutor's appeal against the decision of Pre-Trial
Chamber I entitled "Decision on the Prosecutor's Application for Warrants of Arrest, Articcle 58", July 2006, available at http://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/court%20records/chambers/ap
peals%20chamber/Pages/judgment%20on%20the%20Prosecutor_s%20appeal%20against%20the%20decision%20of%
20pre_trial%20chamber%20i%20.aspx
19 th
Kevin Jon Heller, “Questions About the Mavi Marmara Referral”, Opinio Juris, May 15 , 2013, available at
http://opiniojuris.org/2013/05/15/questions-about-the-mavi-marmara-referral/
20
Rome Statute, Article 14(1), this article speaks of situations in which “one or more crimes… appear to have been
committed”
21 th
Kevin Jon Heller, “Could the ICC Investigate Israel’s Attack on the Mavi Marmara?”, Opinio Juris, May 14 , 2013,
available at http://opiniojuris.org/2013/05/14/could-the-icc-investigate-the-mavi-marmara-incident/
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measurable and objective factor. Moreover, the scarce finances of the Court might urge it to
prioritize situations involving mass atrocity. In three of the cases before the ICC – Darfur,
Democratic Republic of the Congo and the Central African Republic – a combined number of
hundreds of thousands of lives have been lost and five million displaced, which starkly contrasts
with the relatively few number of victims of the raid incident. The decision of the OTP in the Iraqi
overall situation supports this argument: the Prosecutor declined to open a formal investigation
considering the number of victims insufficient to satisfy the gravity threshold. In particular, the
case involving twelve unlawful killings by British soldiers did not meet the gravity threshold. 22
If the ICC followed its same line of thought as in Iraq, given the small number of casualties of the
raid incident, it would probably decline to undertake an investigation.
Conversely, the case against Abu Garda in relation to the attack against the African Union
peacekeeping mission in Sudan (AMIS) is an example where the gravity threshold was considered
to be met in spite of the low number of victims. Ultimately though, the charges were not
confirmed, but merely by lack of evidence. The Rome Statute explicitly considers an attack on a
humanitarian assistance or peacekeeping mission as a war crime.23 The impact of the latter is
considered substantial since it directly affects the civilian population that the peacekeeping is
entitled to protect.24 In the same line of thought, one can wonder whether the Court could
consider the flotilla as a humanitarian assistance mission destined to the Gaza Strip, an attack on
which could also qualify as a war crime under the Rome Statute.25 However, the definition of what
constitute a “humanitarian assistance mission” is unclear in the Rome Statute. It will be up to the
judges to decide whether the flotilla could be considered as such for the purpose of the Statute.
Still, even if it does, the case against Abu Garda remains different since this incident was
considered in the overall situation of the Democratic Republic of Congo. It was a case among
others that did not qualify as a situation by itself.
If the ICC accepts the referral, two options are likely: the Court could merely consider the Gaza
flotilla raid or it could link it to a broader situation as the referral urges to. Although referrals will
usually be about events involving the territory or nationals of the referring State Party, the Rome
Statute does not require such a connection.26 However, if the Court considers a broader situation,
it has to prove that it has jurisdiction over it either through territory or nationality (of the alleged
perpetrator). If the Court does so, it could either link it to the overall situation of Palestine which
would be a very bold decision, or it could broaden its scope no further than the situation of Gaza
under an Israeli blockade.
If it chooses the latter option, several issues are likely to come up. Although no consensus has yet
22 nd
OTP response to communications received concerning Iraq, September 2 , 2006, available at http://www.icc-
cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20Prosecutor/comm%20and%20ref/pe-
cdnp/iraq/Pages/iraq.aspx
23
Rome Statute, Article 8 (b) (III)
24
ICC-CPI-20100208-PR495, The Prosecutor v. Bahar Idriss Abu Garda, Pre-Trial Chamber I declines to confirm the
charges against Bahar Idriss Abu Garda available at http://icc-
cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200205/related%20cases/icc02050209/
press%20release/Pages/pr495.aspx
25
Rome Statute, Article 8 (2) (b) (iii)
26
Rome Statute, Article 14
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been reached, opinions considering the blockade illegal seem to outweigh those considering it
legal. For a blockade to be considered legal under general international law, it has to satisfy a
number of requirements. There needs to be an armed conflict, the limits of the blockade have to
be clearly defined and the principle of proportionality has to be respected: the damage undergone
by the civilian population must not be excessive compared to the concrete military advantage
expected. The Palmer report, as well as Israeli officials and analysts, consider the blockade legal in
view of Israeli security and military circumstances. On the contrary, the Goldstone report, the UN
fact-finding mission of September 2010, and a number of Western and Arab countries find it illegal
given its disproportionate and punitive impact on the civilian population.
At any rate, for the Court to take up the matter, it would have to determine whether the blockade
fits into the category of crimes on which it has jurisdiction and whether it meets the gravity
threshold. The most relevant category seems to be crimes against humanity. The Goldstone report
supported this argument stating that
“the series of acts that deprive Palestinians in the Gaza Strip of their means of subsistence,
employment, housing and water, that deny their freedom of movement and their right to
leave and enter their own country, that limit their rights to access a court of law and an
effective remedy, could lead a competent court to find that the crime of persecution, a
crime against humanity, has been committed”.
The Court’s decision on whether to link the flotilla incident to a broader situation may be
determining since as considered within an investigation of the overall situation of Palestine or the
Gaza blockade, the gravity threshold might be satisfied but as an isolated incident investigated
separately, it may not.
Does this situation satisfy the principle of complementarity and the interest of justice?
The ICC is a court of last resort and therefore gives priority to national courts. “A case is
inadmissible where the case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling or genuinely unable to carry out the investigation or
prosecution.”27 This is known as the principle of complementarity.
The referral states that the complementarity test under Article 17 of the Rome Statute is not
satisfied and that therefore the case is admissible before the ICC. It states that no prosecutions
were carried out nationally in states that have the jurisdiction on the grounds of territory
(Comoros, Cambodia, Greece or in any states where the vessels were registered). Moreover, the
referral argues that Israel is not willing and able to initiate impartial and independent prosecutions
against the allegedly responsible. It supports this argument evoking “the highly political and
sensitive nature of Israeli socio-political reality on the ground” and the fact that “given the turmoil
history of Israel since its creation, the IDF is highly praised as an important arm of the state for the
important role it plays in the defense of the country”. The referral also stresses the lack of
cooperation of the Israeli authorities with the UN International Fact-Finding Mission which
investigated the Gaza flotilla raid.
27
Rome Statute, Article 17 (1) (a)
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The referral does not explicitly mention the legal actions undertaken by Israel. Israel established
two commissions: an IDF's internal panel 28 and a public commission of inquiry appointed by the
Israeli government: the Turkel Committee.29 Even though they recognized some operational errors,
the Commission concluded that the Gaza blockade was “lawful and complied with the rules of
international law, in view of the security circumstances and Israel’s efforts to fulfill its humanitarian
obligations” and that “the actions carried out by Israel on May 31 st, 2010, to enforce the naval
blockade were lawful and in conformity with international law.”
The Court will have to take into account those proceedings since it will not take a case that has
already been prosecuted at the national level unless it is proven that those prosecutions were not
carried out genuinely for two main reasons: the prosecutions aimed at shielding the person
concerned from criminal responsibility or they were not conducted independently or impartially.
The ICC is not entitled to judge the Israeli judicial system as a whole but has to determine, in this
specific case brought to it, whether the investigation was carried out genuinely. David Trimble and
Kenneth Watkin who are the international observers that served in the Israeli commission stated
that they had “no doubt that the Commission is independent.”30 However, some criticisms were
made as to the composition, mandate and findings of this commission. In particular, Amnesty
International, considered the Israeli inquiry into the Gaza Flotilla “no more than a whitewash.”31 It
emphasizes that the report crucially fails to explain how the activists died and what conclusions
the commission reached regarding the IDF’s specific actions in each case. Moreover, it argues that
the commission had a limited mandate and that it is unclear whether the commission made
sufficient efforts to obtain evidence and testimonies during its seven-month investigation. It
concludes that
“the commission’s failure to account for the deaths reinforces the view that the Israeli
authorities are unwilling or incapable of delivering accountability for abuses of
international law committed by Israeli forces”.
Other legal actions were also undertaken by Turkey and South Africa. Turkey established a national
commission of inquiry32 and subsequently a Turkish court launched legal procedures in absentia
against four of Israel’s most senior retired commanders, including the ex-army chief. This court
issued summons to the four generals in May 2013.33 South Africa also set up an investigation, in
28
The Israel Democracy Institute, “The Flotilla Investigation: Findings of the Eiland Committee”, July 12th, 2010,
available at http://en.idi.org.il/analysis/terrorism-and-democracy/issue-no-19/the-flotilla-investigation-findings-of-
the-eiland-committee/
29
See the website of the commission, available at http://www.turkel-committee.com/content-157-c.html and the
report’s summary at http://www.turkel-committee.com/files/wordocs/7896summary-eng.PDF
30
David Trimble, Kenneth Watkin, “We have no doubt that the Commission is independent”, The Jerusalem Post,
th
January 24 , 2011, available at http://www.jpost.com/Diplomacy-and-Politics/We-have-no-doubt-that-the-
Commission-is-independent
31 th
Amnesty International, “Israeli inquiry into Gaza flotilla deaths no more than a whitewash”, January 28 , 2011,
available at http://www.amnesty.org.uk/news_details.asp?NewsID=19213
32
Turkish National Commission of Inquiry, Report on the Israeli attack on the humanitarian aid convoy to Gaza on 31
May 2010, February 2011, available at http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-
%20UN%20Copy.pdf
33 th
Fox News, “Turkish court tries Israeli officers in killing of activists on Gaza-bound aid ship in 2010”, November 6 ,
2012, available at http://www.foxnews.com/world/2012/11/05/turkish-court-to-try-israeli-officers-in-killing-activists-
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January 2011, upon the request of the lawyers of a South African journalist who participated in the
Freedom Flotilla and allegedly suffered from “inhuman treatment” by the Israeli commandos.
These two countries do not have jurisdiction through territory (the crimes did not occur on their
territory) or through the nationality of the perpetrator (the alleged perpetrators were Israelis).
However, they have jurisdiction on account of the nationality of the victims. The question is
whether the ICC will recognize this jurisdiction as sufficient to invoke the principle of
complementarity: indeed, the ICC itself cannot exercise jurisdiction over a case merely on account
of the victims’ being nationals of a State Party.
Article 17 states that “a case is inadmissible where the case is being investigated or prosecuted by
a State which has jurisdiction over it.” The provision does not specify an exclusive type of
jurisdiction. The Court has never dealt with this issue. Yet, it may only challenge the jurisdiction of
a state when it is not supported by the general rules of jurisdiction in general international law.
This means that the Court could consider that South Africa and Turkey have jurisdiction over the
alleged crimes on the grounds of the passive personal principle (jurisdiction over alleged crimes
when the victim is a national of that State), which is a recognized principle in general international
law. As in the case of Israel, the Court will have to determine whether the investigation and
prosecution were carried out genuinely. Moreover, if these two countries prosecute solely the
individuals allegedly responsible for the crimes committed against their nationals, the Court could
consider that the test of complementarity is only satisfied regarding certain individuals and could
investigate and prosecute the other individuals not considered at the national level.
In making its decisions whether to open a formal investigation, according to the Rome Statute, the
OTP has to consider “the interest of justice.” The definition of this concept remains unclear in the
Rome Statute. Some argue that a broad definition of this principle would include considerations as
to whether the proceeding could endanger a peace process or exacerbate a conflict situation in a
given country. In the case of the Comoros referral, they would claim that the OTP could reject a
formal investigation by invoking the interest of justice given that Israel and Turkey are making an
agreement as to the compensation of victims. The ICC’s action could then be seen as counter-
productive to the restoration of relation between Israel and Turkey and unnecessary for the
victims.
Yet, the Court has made it clear that the interest of justice should not be assimilated to the interest
of peace. The Court has constantly reasserted that it will continue with cases even when a political
or peace settlement is under way. The ICC has determined that it is the Security Council, not the
Prosecutor, which is empowered to act, taking into account issues such as international peace and
security. Thus, the Rome Statute provides that the United Nations Security Council, acting under
Chapter VII of the UN Charter, may take action to defer an investigation or prosecution for a
renewable twelve-month period.34 This position reflects the determination of the Court to refuse
any politicization of its work. It is also fully in line with the objects and purposes of the Rome
Statute stated in its preamble: the creation of an independent criminal court “to put an end to
impunity for the perpetrators of the most serious crimes of concern to the international
on-gaza-bound-aid/
34
Rome Statute, Article 16
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community as a whole.” The Court has therefore adopted a narrower definition of the “interest of
justice” that can only be invoked in exceptional circumstances. The Court has underlined three
factors that should be taken into account: first, the gravity and the seriousness of the crime;
second, the interest of victims including their interest in seeking justice done but also the impact
of the proceedings on their lives and the issue of their protection; third, the personal
circumstances of the accused including his role in the overall commission of crimes, the degree of
his involvement since the Court has to prosecute the “most responsible” individual, and also his
age and health condition.35 For instance, the Court may not prosecute an overly old, mentally
disturbed or terminally ill defendant. Thus, if the OTP invoked the interest of justice in this case, it
would be linked to these factors rather than to any concomitant political circumstances, the latter
falling within the mandate of the UN Security Council.
What next if the Prosecutor refuses to open an investigation?
So far, no state referral has ever been refused. Therefore, if the Prosecutor refuses to accept the
referral by the Comoros, It will raise a number of questions of interpretation. The Rome Statute
grants the Comoros the right to ask the Pre-Trial Chamber to review a decision by the OTP not to
open a formal investigation. However, the Pre-Trial Chamber will need to consider whether the
Rome Statute allows it to require the Prosecutor to begin a formal investigation. The Rome Statute
seems to infer that such an option is possible only in cases where the OTP has solely invoked the
interest of justice to decline to investigate the situation. It seems that whenever the OTP invokes
any other factors including admissibility to decline to investigate, the PTC can only ask the
Prosecutor to “reconsider her decision” but not force her to open a formal investigation.36 There
has never been such a proceeding before so it is unsure how the judges will interpret article 53.
What political implications?
This preliminary examination has unique legal features that will be determining for the Court’s
jurisprudence to come. It will also affect the international outlook on the Court and in particular
the fragile US-ICC relationship.
It is the first referral of a state against nationals of another state that is not a State Party to the
Rome Statute. It is an extremely sensitive issue for the US to have the ICC prosecuting nationals of
a non-State Party. This referral is also problematic in the sense that it asks the OTP to investigate
crimes committed by only one side of the conflict: Israel. If the Court only decided to consider the
incident separately, this would certainly rekindle criticism as to the Court being politically biased
against Israel. It would thus make the involvement of the ICC even more unacceptable to both
Israel and the US.
This is also the first referral of an African state directed against nationals of a non-African state.
Even if the ICC should by no means be deterred by the reactions arising from its decision, it seems
clear that given the constant tension between the ICC and the African Union, a negative decision
on this matter would be politically damaging for the Court in its relationship to African states.
35
ICC, OTP, Policy Paper on the Interests of Justice, September 2007, available at http://www.icc-
cpi.int/nr/rdonlyres/772c95c9-f54d-4321-bf09-73422bb23528/143640/iccotpinterestsofjustice.pdf
36
Rome Statute, Article 53
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Palestine’s potential referral to the ICC: What extent for the ICC’s jurisdiction and what political
implications?
Another scenario has stirred considerable political and media attention: the possibility that
Palestine could refer the whole situation to the ICC. In the following section, the paper analyzes
both legal and political obstacles to this possibility in order to demonstrate the complexity of this
situation and to consider the possible scenarios arising from it.
Can Palestine refer the situation to the ICC? What would be the procedure?
Even if Israel is not a State Party to the ICC, its nationals could be subject to prosecution if they
commit a crime on the territory of Palestine, and if the latter refers the situation to the ICC.
To refer a situation to the ICC, a state has two different options.37 It can refer the situation to the
ICC if it is a State Party to the Rome Statute or as a non-State Party, it can lodge a special
declaration accepting the jurisdiction of the Court.
How can Palestine join the Court?
The Rome Statute states that the treaty is open to accession by all “States,” and that instruments
of ratification shall be deposited with the Secretary-General of the UN, as the statute’s
“depositary.” Accordingly, the Palestinian Authority has to take internal steps to ratify the Rome
Statute and then must deposit its instrument of ratification with Secretary-General Ban Ki-moon.
He will have the responsibility to determine whether or not Palestine is indeed a “State” for the
purposes of ratification. He will base his decision on the definition of a state in international law
that has been codified in the Montevideo Convention on the Rights and Duties of States. Naturally,
even if the legal nature of Palestine remains contested, the UN General Assembly’s acceptance of
Palestine will be an important factor in this decision. It will be especially true since when the status
of an entity in unclear or controversial, it is the practice of the Secretary-General to “request the
opinion of the Assembly before receiving a signature or an instrument of ratification or accession.”
38
If the Secretary-General accepts the instrument, this will automatically make Palestine an ICC
State Party according to the procedures in the Rome Statute. However, before Palestine is able to
refer a situation to the ICC, Palestine would have to wait until the entry into force of the Rome
Statute, the first day of the month after the 60th day following the deposit of the state’s
instrument of ratification (at least two months).
If Palestine decides, as a non-State Party, to lodge a special declaration accepting the jurisdiction of
the Court, the Prosecutor will have the responsibility to accept it or not. The recognition by the UN
General Assembly of Palestine as a “non-member observer state” may also substantially influence
the decision. The Prosecutor recently stated that now that the UN General Assembly has made its
determination that Palestine is a state, "the ball is now in the court of Palestine", "Palestine has to
come back" and "we are waiting for them.”39
37
Rome Statute, article 12
38
See Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 82]
39
See the opinion piece by John Whitbeck that reports some comments by Fatou Bensouda about Palestinian
ratification, available at http://www.palestinechronicle.com/palestine-and-the-icc/
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However, the mere possession of ICC membership is not sufficient to bring about prosecutions.
The ICC has strict standards of jurisdiction and admissibility. In the case of a referral or a
declaration from Palestine to the ICC, several legal hurdles are likely to lie ahead.
What temporal jurisdiction for the ICC?
One fundamental question is how far back the ICC’s jurisdiction is applicable. There are three
possible scenarios.
If Palestine became a State Party, the Rome Statute makes it clear that the ICC would only deal
with crimes that have taken place after a state became a State Party to the Court. This means that
the ICC would not be dealing with anything from 1948-2013, but only crimes that would be
committed in the future.40
What if Palestine, as a non-State Party, makes a special declaration accepting the jurisdiction of the
Court? In this case, the Rome Statute seems to admit retroactivity reaching as far back as the birth
of the ICC in 2002.41 Some analysts mention Côte d'Ivoire as a precedent of retroactivity in the case
of a declaration. However, Côte d'Ivoire does not cover the complexities of Palestine. Its statehood
was not contested when it filed the declarations.
Palestine lodged a special declaration in 2009. It was dismissed in a decision of April 2012: the OTP
declared that only a state can refer a situation to the ICC and that given the controversy over the
statehood of Palestine, it was not the role of the ICC but rather of the UN General Assembly to
determine whether an entity should or not be recognized as a state. This suggests two things: first,
if Palestine wanted to lodge a special declaration accepting the jurisdiction to the Court, it is likely
that it would have to issue a new one on account of its new status. Second, even if the General
Assembly has no power to create a state legally speaking and that the Palestinian state probably
existed de facto prior to the vote by satisfying numerous Montevideo criteria, the ICC is likely to
consider the UN resolution as the objective “birth certificate” for the purpose of the declaration. In
this case, the Court would likely be retrospective back to when Palestine was granted the status of
“non-member observer state” by the UN General Assembly in 2012.
This hypothesis seems to be confirmed by a recent declaration of the Prosecutor during a public
discussion held at the Académie Diplomatique Internationale in Paris on March 20th, 2013. Fatou
Bensouda stated that she did not think that any retroactivity could extend back to the birth of the
Court in 2002. At most, even if it could be prior to Palestine's formal accession to the Rome
Statute, it could extend only to November 29th, 2012, when the UN General Assembly determined
the issue of Palestine's state status.42
A third scenario is to be considered: could Palestine join the ICC and make a special declaration,
while a State Party, which could allow a retroactive jurisdiction further back than its accession to
the ICC? One could argue that, in accordance with the Rome Statute, if a state joins the ICC, the
40
Rome Statute, Article 11
41
Rome Statute, Article 12 (3)
42
See the opinion piece by John Whitbeck that reports some comments by Fatou Bensouda about Palestinian
ratification, available at http://www.palestinechronicle.com/palestine-and-the-icc/
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Court's jurisdiction will apply for the crimes committed after the entry into force of the Rome
Statute for that state. Accordingly, the ICC could have retroactive jurisdiction only if that state
lodged a declaration before it joined the Court but not after.
However, the Rules of Procedure and Evidence seem to accept the possibility of a State Party
making the declaration after it joins the Court.43 The situation of Uganda supports this hypothesis.
The Rome Statute only entered into force for Uganda in September 1st, 2002. However the Pre-
Trial Chamber issued the arrest warrants for Kony and his co-defendants in respect of crimes
allegedly committed since July, 1st 2002 acknowledging a Ugandan “Declaration on Temporal
Jurisdiction”, presumably made under Article 12(3) after Uganda became a State Party.44 However,
ultimately none of the charges against Kony and his co-defendants concerned conduct occurring
between July 1st and September 1st, 2002. Thus, the ICC did not take any clear stance as to
retroactive jurisdiction since this was not an issue at the time. Even if Palestine made a special
declaration after joining the Court, as in the previous case, the Court would likely be retrospective
only back to when Palestine was granted the status of “non-member observer state” by the UN
General Assembly in 2012.
However, if this hypothesis is confirmed, it will encourage states to join the Court instead of merely
making a special declaration as a non-State Party. However, would Palestine join the ICC merely in
order to give a retroactive jurisdiction to the Court back to 2012? It may join the Court for other
procedural advantages: If Palestine, as a non-State Party lodges a special declaration, as in the case
of Cote d'Ivoire, the Prosecutor will have to initiate an investigation proprio motu (on her own
initiative) and therefore seek the authorization from the Pre-Trial Chamber to do so. Conversely, if
Palestine joins the Court, it will be able to refer the situation to the ICC which will require the OTP
to open a formal examination without any prior opposition of the Pre-Trial Chamber.
What territorial jurisdiction?
Several analysts have pointed out that the territory of Palestine is not clearly defined and thus that
if the ICC takes up the matter, the scope of its territorial jurisdiction would be unclear as well. This
would be even more problematic if the ICC dealt with the issue of settlement.
Yet, the UN resolution seems to recognize the “state of Palestine” on the basis of the pre-1967
borders. This includes the West Bank (including East Jerusalem) and Gaza (territory captured by
Israel in 1967). A relative international consensus has been reached as to the recognition of the
Green Line as the borders of future Palestine.45 This was reaffirmed in several UN resolutions as
well as in the Palestinian declaration of independence in 1988 and the Oslo Accords in 1993.
Therefore, the ICC may base its jurisdiction upon those borders.
43
Rules of Procedure and Evidence, Rule 44(1)“The Registrar, at the request of the Prosecutor, may inquire of a State
that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential
basis, whether it intends to make the declaration provided for in article 12, paragraph 3. “ available at http://www.icc-
cpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Pages/rules%20of%20procedure%20and%20
evidence.aspx
44
Alexander Wills, “The ICC’s Retroactive Jurisdiction, Revisited”, Opinio Juris, January 29th, 2013, available at
http://opiniojuris.org/2013/01/29/the-iccs-retroactive-jurisdiction-revisited/
45
The pre-1967 border won recognition from about 100 countries excluding the US
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However, the legal value of both those borders and the last UN resolution could be legitimately
questioned. The General Assembly has no binding power to determine the borders of a state.
Moreover, it is worth noting that if UN membership could implicitly confirm an entity’s statehood,
the same cannot be said of the status of “non-member observer state”. Throughout history, this
status has been granted to some entities whose statehood was debatable. Thus, the resolution
granting that status neither alters nor objectively clarifies the legal status of Palestine and its
borders.46 This resolution should rather be seen as a symbolic and political recognition of Palestine
and its borders by a majority of states. This does not condition the legally binding determination of
its borders.
Some would argue that Israel was recognized as an illegal occupant by the international
community including the International Court of Justice (ICJ) and that therefore this territory was
recognized as Palestinian. However, even the ICJ has recognized the difference between
occupation and borders. The terminology of “Occupied Palestinian Territory”, rather than implicitly
attributing the land to the Arab population, merely stresses the illegal nature of Israeli occupation.
It could be argued that no sovereign Palestine state existed before and that the West Bank was not
Palestinian sovereign territory when Israel took it in 1967 (It belonged to Jordan). Occupation can
arise even in a territory that does not belong to any state.47 Moreover, the question of Jerusalem
has never been solved even in the UN resolution that merely underlines the necessity to solve this
territorial dispute.
The territorial sovereignty of Palestine is also problematic since the Gaza Strip is governed by the
independent movement of the Hamas. In particular, the Palestinian Authority has no control over
Gaza City. Apparently, its President Mahmoud Abbas is not even allowed inside the Gaza Strip. The
overlap between the location of the alleged crimes and the most disputed portions of the territory
adds to the complexity.
In addition, it could be argued that it would be problematic for Palestine to confer its jurisdiction
over the West Bank to the ICC since it does not possess it. The Oslo Accords gave Israel exclusive
criminal jurisdiction over all Israelis both in the Palestinian-controlled and Israeli-controlled areas
of the West Bank.
Some analysts also consider that article 98 could be applied to the Oslo Accords that gave Israel
exclusive criminal jurisdiction over all Israelis both in the Palestinian-controlled and Israeli-
controlled areas of the West Bank.48 Article 98 provides that the Court may not proceed with a
request for arrest, surrender or other forms of cooperation if it entails breaching a state’s
international obligations with respect of specific categories of treaties.49 Article 98(2) only
concerns treaties between countries covering individuals that they have sent to each other on
46
Jure Vidmar, ” Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?”, EJIL
th
Analysis, December 4 , 2012, available at : http://www.ejiltalk.org/does-general-assembly-resolution-6719-have-
any-implications-for-the-legal-status-of-palestine
47
Eugene Kontorovich, “Jurisdiction Over Israeli settlement activity in the International Criminal Court”, Northwestern
University School of Law, March 2013, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230987
48
ibid
49
Rome Statute, Article 98, available at http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-
9CDC7CF02886/283503/RomeStatutEng1.pdf
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official business. The article's wording explicitly requires the existence of a “sending state”
relationship, such as when military and civilian personnel are sent to a receiving state by a
government pursuant to Status of Forces (SOFAs), Status of Mission agreements (SOMAs) or
perhaps even to an extradition agreement. Such treaties often say that if such an individual
commits a crime in a country where he or she has been sent, he or she is to be returned to the
sending country. The Oslo Accords do not fit the specific categories mentioned above. This article
is very specific and would not support a broad interpretation that would apply to all international
agreements. Such a broad interpretation of Article 98 was used by the US when it signed several
bilateral agreements. The latter applied to any of a wide variety of individuals who may be on the
territory of either party for any purpose at any time in order to prevent the exercise of the ICC
jurisdiction over US nationals. This was widely condemned and considered illegal.50 Therefore, if
the Court decided to prosecute Israelis, Article 98 could certainly not be invoked against such a
decision.
Before carrying out any prosecutorial actions, the Prosecutor will necessarily have to clarify the
extent of the ICC’s territorial jurisdiction over the situation of Palestine. This implies determining,
at least for the purpose of the Rome Statute, Palestine's borders which remain unclear. Because of
this ambiguity and the political weight of this situation, the Court will probably try hard not to have
to reach this issue.
Which crimes could the ICC prosecute?
The ICC can only prosecute certain types of crimes namely: genocide, crimes against humanity and
war crimes.
In its calls for the ICC, Palestine has invoked settlement as the legal avenue it wants to pursue. This
seems to be at the advantage of Palestine since settlement involves only Israelis and not
Palestinians. Moreover, since Israeli law does not consider settlement as illegal and is unlikely to
prosecute those considered as settlers, the ICC involvement will not contravene the principle of
complementarity (according to which the ICC can only prosecute crimes when national courts are
unable or unwilling to do so).
The settlements in the West Bank are widely recognized as a violation of the Rome Statute which
prohibits “the transfer, directly or indirectly, by the occupying power of parts of its own civilian
population into the territories it occupies.”51 The last UN report on the matter states that about
250 settlements in the West Bank, including East Jerusalem, have been established since 1967 and
that they hold an estimated 520,000 settlers. The report considers that activities of settlement
infringe upon the rights of the Palestinians to
“freedom of self-determination, non-discrimination, freedom of movement, equality, due
process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of
50
See Council of the European Union, Guiding Principles concerning Arrangements between a State Party to the Rome
Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to
th
the Court, September 30 , 2013 available at http://www.amicc.org/docs/EC9_30_02.pdf
51
Element of Crimes and Rome Statute, Article 8, available at http://www.icc-cpi.int/nr/rdonlyres/7730b6bf-308a-
4d26-9c52-3e19cd06e6ab/0/elementsofcrimesfra.pdf
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