A Palestinian request for a full investigation into Israeli settlement policies and alleged crimes brings into focus the nearly 16-year-old International Criminal Court's role in delivering justice to those responsible for the world’s worst crimes.
The Hague-based institution, an independent tribunal that is not part of the United Nations system, is intended to step in only when nations are unwilling or unable to dispense justice themselves. It is the world’s first permanent international criminal court with the jurisdiction to prosecute individuals for the most serious crimes under international law — crimes against humanity, genocide, war crimes and aggression.
The Palestinian foreign minister, Riyad al-Malki, provided a referral document to the court calling for a full investigation into Israeli settlement policies in the West Bank and East Jerusalem. A Palestinian statement asserted there is "sufficient compelling evidence of the ongoing commission of grave crimes to warrant an immediate investigation.”
The request comes soon after the recent bloodshed at Gaza. Israeli fire has killed over 100 Palestinians during violent protests along the Israeli border since two months ago. In 2015, the court began conducting preliminary inquiries into Israel’s settlement construction in the West Bank and alleged crimes by both sides during the 2014 Gaza conflict.
Israel’s foreign ministry dismissed the Palestinians' latest maneuver and said the International Criminal Court, or ICC, lacks jurisdiction to investigate. Israel has not signed the treaty that would make it a member of the court, the foreign ministry said, and "the Palestinian Authority is not a state.” But a Harvard legal expert who worked for the ICC as a prosecutor said the referral allows the court to begin investigating soon, with a broad scope of examination, and without seeking authorization from a pre-trial chamber.
"Although Palestine may have specified certain alleged crimes in the referral, the ICC will consider this to be a referral of the entire situation, and will not be limited by Palestine's referral," said Alex Whiting, a Harvard Law School professor and former ICC prosecutor from 2010 to 2013. "Palestine's referral does not obligate ICC to commence investigation."
Whiting wrote in a series of tweets that "Palestine's referral likely means that (an) ICC prosecutor will commence investigation sooner because a state party of (the) court has now requested an investigation and referral should signal that Palestine is willing to cooperate with investigation." He added that if an investigation begins, it "will only look at alleged crimes committed on the territory of Palestine or by Palestine nationals because Israel is not member of the ICC."
As it turns out, the referral from Palestine contains no limitations and covers all alleged crimes within jurisdiction of the Court since 13 June 2014, the date fixed by Palestine’s grant of jurisdiction.
— Alex Whiting (@alexgwhiting) May 22, 2018
Court of last resort
The ICC, which recognized “Palestine” as a member state, could indict Israeli citizens if they were suspected of committing crimes on Palestinian territory or against a national of a member country. But it lacks a police force and relies on cooperating member nations to enforce warrants for arrest.
In 2004, the International Court of Justice, as the U.N.'s main court for settling disputes among nations, issued an advisory opinion describing the Israeli settlements on territories sought by Palestinians for a homeland as a violation of international law.
In 2016, the U.N. Security Council also called the settlements illegal. Israel says the West Bank is not occupied because it was captured from Jordan, which does not claim it as territory.
Along with Israel, major countries such as China, India, Russia and the United States also have not joined ICC. Among the reasons cited are concerns over the alleged possibilities of politically motivated prosecutions or interference with state sovereignty.
The Rome Statute of the International Criminal Court was adopted in 1998 by 120 nations and entered into force in 2002 — which is when the court became operational. As of 2018, it had 123 ratifying members; there were 124 last year, but Burundi withdrew as of October. The Philippines gave notice this year it plans to withdraw in March 2019.
Cases also can be referred to ICC by the 15-nation U.N. Security Council, but its five permanent members — Britain, China, France, Russia and the United States — each hold veto power there.
“So far the court has made significant progress in prosecuting those responsible for mass crimes. The ICC was set up as a contribution to a collective global effort to build a safer world for everyone. Its primary mission is to help put an end to impunity for mass atrocities,” the court said.
“Every state that ratifies the Rome Statute helps strengthen the ICC system and contributes to the prevention of such future crimes,” it said. “States not party to the Rome Statute are encouraged to consider ratification or accession as universal ratification enhances the legitimacy and effectiveness of the court.”
