Let’s set aside that criminal proceedings before the International Criminal Court are not one state “suing” another. Palestine does have the right, after the non-member observer state vote last year, to “refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate” under Art. 14 of the Rome Statute.
However, this not only requires that the situation survive an initial investigation, a pre-trial and goodness knows how many disputes of jurisdiction, but that evidence exists that Israel has committed one of the only four very specific crimes under the 1998 Statute.
All this is relatively easy. The court’s power comes under further doubt when the fact is considered that Israel is not a party to the court’s stature, and therefore does not submit to its jurisdiction. Therefore, in order for any individual to be prosecuted, the Palestinian Authority must prove Palestinian statehood in order to satisfy the preconditions for jurisdiction under Art. 12.
This is particularly tricky considering a previous prosecutor of the ICC in April 2012 denied that the court could currently classify Palestine as a state, noting that “any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter”. Vitally, it is continued: “However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State””.Now that this status has changed, the final paragraph of he previous decision implies “the Assembly of States Parties [has resolved] the legal issue relevant to an assessment of article 12” (quotes from ICC Office of the Prosecutor’s update on the situation in Palestine, 4 April 2012).
Then, we will proceed on the assumption that the Office of the Prosecutor can now classify Palestine as a state for the purposes of the Rome Statute, and on the assumption that any crimes committed against Palestine or its nationals would have transpired, in this conflict, on Palestinian territory as defined by the ICJ to be as per 1963 borders. What crime(s) would have been committed then?
The case for genocide may be arguable, but always suffers from the extreme difficulty of proving that rare and particular beast, specific intent. Otherwise, most of the acts apart from forcible prevention of births could be tenably presented.
Under crimes against humanity, acts of Art. 7 (c), (j) and (k) have been widely purported to have taken place between Israel, Gaza and the West Bank. So, crimes against humanity seems a very possible potential accusation for the PA.
The continuation of settlements into the West Bank, the particular catalyst here, may become a War Crime under Art. 8 (2) iv-Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
This is particularly potent considering the aforementioned ICJ judgement.
Palestine’s threat to refer the situation to the International Criminal Court under its new non-member state status may be the straw which breaks Netanyahu’s back after his skydive to victory in Israel’s election. Speculation abounds that the state will be back at the polls within 2 years at the outside. Will this step be the final limbo for Israel’s fascist far right? The expression on their leader seems to be an omen.