The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.
But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”
The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.
The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.
In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.
David Davenport is a research fellow at the Hoover Institution. He submitted legal memoranda to the Prosecutor and presented arguments at the Hague on the ICC’s lack of jurisdiction in this matter.