When most ruled out the possibility of the ICC involvement in the situation of Palestine, surprisingly, three years after the incident, on May 14th, 2013, the Union of the Comoros, a State Party to the ICC, referred the situation to the Court in relation to the May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip. The legal representative of the victims, the Turkish law firm Elmadag, supposedly approached the government of Comoros, where one of the vessels was registered and proposed that it present to the ICC the referral of Comoros naming the Israelis allegedly responsible for the attack. Comoros which does not maintain diplomatic ties with Israel, accepted. Subsequently, the ICC Prosecutor decided to launch a preliminary examination to determine whether the criteria to open a formal investigation were met. This referral presents some peculiar legal features that overshadow the admissibility of the situation before the Court. The Rome Statute makes it clear that the ICC will have territorial jurisdiction over crimes committed on board vessels registered in a State Party. However, since the gravity of the crimes committed is relatively minor compared to the other situations before the Court, will this situation be considered serious enough to call for a formal investigation? Is this, as the Rome Statute requires a case that “shocks the conscience of humanity” or is ‘of concern to the international community as a whole”, should we expect the ICC to be bold enough to consider the broader situation of Gaza or even the overall Israel- Palestine conflict? Those questions are tightly linked since the gravity threshold might be satisfied only if the referral is considered as part of the broader situation.
A second scenario calls for consideration. On account of its new status as a "non-member observer state" after the UN General Assembly vote on November 2012, the Palestinian Authority has repeatedly alluded to its intention to refer the situation to the ICC should Israel continue its settlement policy. This would require settling the questions of the ICC's temporal and territorial jurisdiction, both being especially complex because of the ambiguous status of Palestine as a political entity. In answering these questions, the political stakes at hand are also to be acknowledged. Without necessarily having any real intention to refer the situation to the ICC, Palestine seems to use that possibility as a political leverage to bring Israel to the negotiating table and kick start the peace process.
The stance that the Court will take towards this situation will be crucial in shaping both the public international opinion and its relationship with states. This situation is a double-sided coin. Any development at the Court related to Israel could on the one hand alter the fragile relationship between the US and the ICC and thus deprive the latter of a crucial support, and on the other hand recover the Court's legitimacy within the "nonwestern nations" that accuse the Court of selectivity and especially targeting weak African states.
The new advocacy document released by AMICC 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 outlook on it. In particular, this paper seeks to address the crucial United States' concern that this potential case is raising.
Read more here.
By Maryne Rondot