Following the overwhelming UN General Assembly (GA) vote on November 29 to accord Palestine non-member observer state status in its meetings we have revised our background paper on this issue
Palestine options at the ICC: The Palestine Authority
(PA) could: 1) Attempt to become a State Party at the ICC by ratifying
the Rome Statute and then refer crimes to the ICC; or 2) Remain a
non-State Party but make a declaration accepting the Court's
jurisdiction over a particular set of crimes. It is very important to recognize that in either option the PA would have to refer an entire situation or train of events to the ICC. This would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including crimes claimed to be by Palestinians against Israelis.
The State Party option would require the PA to ratify the
Rome Statute and then present a document certifying the ratification to
the UN Secretary-General. The Secretary-General is responsible for
administering the Rome Statute. He would have to decide whether the PA
was a state competent to ratify. Should he so decide, the Prosecutor and
the rest of the ICC would be obliged to proceed as with any other State
In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral,
the Prosecutor would have to make the first decision on whether the PA
was a state competent to make the referral. This decision could be
challenged in the Pre-Trial Chamber by the PA, or by another state
involved in the situation giving rise to the referral, such as Israel.
The PA has in fact already tried this option by submitting a report of
crimes and declaration of acceptance of jurisdiction to the ICC
Prosecutor in 2009. In April, 2012, the Prosecutor released a decision
that at that stage he was not empowered to decide on the PA's statehood
status. A UN body such as the Security Council or the General Assembly,
or the ICC's Assembly of States Parties, would have to make this
determination. Since the GA's recent action, the press has reported that
the current Prosecutor is giving the declaration further consideration.
Please refer to our background paper for full descriptions of the processes involved in both options.
Prospects for next steps by the PA: The PA has recently
said that it does not plan any immediate actions at the ICC. Should it
eventually resort to the Court, its interest would apparently be in
asserted illegal Israeli occupation of the West Bank. The Authority has
also recognized American threats to cut off aid if it brings charges at
Implications for advocacy: A bipartisan group of
senators have said that they will introduce legislation to make good on
those threats. Statements by its members such as senators Schumer (D.,
N.Y.) and Graham (R., S.C.) have included familiar misunderstanding
about the Court, such as that it can try enlisted service members. If
ardent supporters of Israel and opponents of the Court converge over
this issue, we will have a new and formidable challenge.