Eugene Kontorovich: ICC’s undermines its own independence with Palestine inquiry
The ICC’s Prosecutor announced today the opening of a “preliminary examination” into “the Situation in Palestine.” This means she will consider, on jurisdictional, evidentiary and policy grounds whether to open an investigation into crimes that may have been committed during this summer’s Gaza conflict. Opening such an investigation is a fairly standard step after receiving a declaration of acceptance of jurisdiction under Article 12(3) of the Rome Statute, and would not normally warrant much notice (other preliminary investigations also involve alleged crimes by the U.S. in Afghanistan and the U.K. in Iraq, though precious few Americans or British are aware of this).ICC prosecutor opens probe into alleged Israeli war crimes
But this decision of the prosecutor is quite different, and extremely significant. The decision to open the inquiry involved the prosecutor determining that the Palestinian Authority is in fact a “state,” a necessary precondition to jurisdiction under the Rome Statute, the Court’s constitutive treaty.
The ICC has never accepted jurisdiction over what is clearly at most a “marginal” state – one that is not a U.N. member, that has not ever claimed to govern any territory, and whose recognition by other states is limited (for example, the U.S., Canada and most Western European states do not recognize the existence of a Palestinian state). This is clearly dramatically different from anything the Court has done before.
But the prosecutor did not actually determine the Palestine qualifies as a “state” under the well-established legal definitions of the term. Rather, she said that the U.N. General Assembly’s vote in 2012 to call Palestine a “non-member state” is dispositive of the question. In short, she substituted the determination of the General Assembly for her own. The GA is not a judicial body, but a political one. Its determinations are political, not legal. (It also has no power under the U.N. Charter, to create or recognize states.)
The International Criminal Court’s prosecutor on Friday opened an initial probe to see if war crimes have been committed against Palestinians, including during last year’s Gaza conflict.FM calls to dismantle ICC after launch of ‘war crimes’ probe
“Today the prosecutor of the International Criminal Court Fatou Bensouda opened a preliminary examination into the situation in Palestine,” her office said in a statement, adding it may lead to a full-blown investigation.
Her decision comes after the Palestinians formally joined the ICC earlier this month allowing it to lodge war crimes and crimes against humanity complaints against Israel as of April 2014.
At the same time, the Palestinians also recognized the ICC’s jurisdiction retroactively, to cover the period during last summer’s war in Gaza that killed nearly 2,200 Palestinians and 72 Israelis.
“A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with a (full) investigation,” Bensouda said.
Liberman charged it was a “scandalous decision whose only goal is to try and harm Israel’s right to defend itself against terror.”
He said the decision was “solely motivated by political anti-Israel considerations,” and that Israel would not tolerate it, adding that he would recommend against cooperating with the probe.
“Israel will act in the international sphere to bring about the dismantling of this court which represents hypocrisy and gives impetus to terror,” Liberman continued in a statement released to the press.
Netanyahu also blasted the decision, accusing the ICC of being “part of the problem.”
“It’s scandalous that mere days after terrorists massacred Jews in France, the ICC prosecutor opens a probe against the Jewish state. And this is because we defend our citizens from Hamas, a terror group that signed a unity pact with the Palestinian Authority and war criminals who fired thousands of rockets at Israeli citizens,” charged the prime minister.
“Unfortunately, this makes the court part of the problem and not part of the solution,” he continued.