ICC Prosecutor Fatou Bensouda announced today in a press release that she has opened a preliminary investigation into the Palestine-Israel situation. The press release is significant not only because it identifies the Prosecutor’s first steps following Palestine becoming a State Party to the ICC , but also because it underscores her commitment to the independence and impartiality of the Court.
As stated by the Prosecutor, a preliminary examination differs significantly from an investigation. A preliminary examination involves reviewing available information to determine whether there is a “reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.” The Court’s Rome Statute does not impose any deadline for this examination. The Office of the Prosecutor (OTP) will render a determination only when it has sufficient facts and legal findings to decide whether an investigation is justified.
The Prosecutor also takes special care to identify the reasons for why Palestine is considered a State and thus eligible for accession to the Rome Statute. In doing so, she emphasizes that it is not the ICC that determines a State’s eligibility to join the Court. She explains this by describing how Palestine’s eligibility was in fact established. Through reference to the United Nations General Assembly (UNGA) Resolution 67/19 – resolution upgrading Palestine to non-member observer state in the UN – the Prosecutor explains that the eligibility of Palestine to accede to the Rome Statute was contingent on Palestine’s statehood status in the UN.
The Prosecutor makes it expressly clear in today’s press release her determination that her office will proceed in examining the Palestine situation impartially. As the preliminary examination progresses, we will monitor the Prosecutor’s actions to confirm that this impartiality persists, and will provide further information as events unfold.
Written by Michaela Connolly