Monday, December 03, 2012

Recent UN General Assembly Action on Palestine and Implications for the ICC

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 Party.

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 the ICC.
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.

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