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Could a Palestinian state bring Israel before the ICC?

November 29, 2012

A Palestinian boy holds a poster of Yasser Arafat, left, as another holds a poster of Palestinian President Mahmoud Abbas, right, during a rally supporting the Palestinian UN bid for observer state status, in the West Bank city of Hebron, Thursday Nov. 29, 2012. —AP Photo

THE HAGUE: If Palestine achieves UN “non-member observer status” on Thursday, it could ask the International Criminal Court to investigate crimes committed during the decades-long Israel-Palestinian conflict.

Based in The Hague, the ICC can prosecute those guilty of genocide, war crimes and crimes against humanity, committed since July 1, 2002, when its founding treaty, the Rome Statute, came into force.

So far it has been ratified by 121 countries, but not Israel – nor the United States, China and Russia.

Only individuals, not states, can be prosecuted before the ICC. The court can only pursue an individual if crimes were committed on a state party’s territory, or by a citizen of a state party.


A state party may refer crimes within the court’s jurisdiction to the prosecutor for investigation.

Cases may also be referred by the UN Security Council, as was the case in Libya last year, or the prosecutor can initiate his own investigations with permission from the judges.

But a Security Council referral is a remote possibility as the United States, Israel’s staunchest ally, is a permanent member of the council and frequently uses its veto right in Israel’s defence.


The Palestinian Authority, which is also threatening to sue Israel before the ICC if it turns out its late leader Yasser Arafat was poisoned, in 2009 asked the prosecutor’s office to investigate alleged war crimes committed by the Israeli military during its December 2008-January 2009 Operation Cast Lead offensive in the Gaza Strip.

The Palestinians recognised the ICC’s authority in 2009, something that the Rome Statute says only a state can do so.

For this reason, former ICC chief prosecutor Luis Moreno-Ocampo decided in 2011 to leave it up to the “competent organs of the United Nations” to decide whether Palestine was a state before deciding whether or not to investigate alleged crimes.

If recognised by the United Nations as a “non-member observer state”, Palestine would need to first ratify the Rome Statute or recognise the jurisdiction of the court before trying to bring a case.

If Thursday’s vote is successful, Palestine’s status may no longer be an issue for the court’s new chief prosecutor Fatou Bensouda to decide whether to launch a probe on her own initiative or at the request of the Palestinians.