Palestine’s ICC Accession: Risks and Rewards

By Dr Miša Zgonec-Rožej

Handout picture showing Abbas signing international agreements in the West Bank city of Ramallah

Palestinian President Mahmoud Abbas signs 20 international treaties, including the Rome Statute of the ICC, in Ramallah on 31 December 2014

On 6 January, the UN secretary-general confirmed that Palestine will accede to the Rome Statute of the International Criminal Court (ICC). Palestine’s accession has, unsurprisingly, prompted certain countries – including Israel, the US and a number of European states – to warn of potentially grave consequences. It is certainly a risky venture for Palestine given political tensions in the region, but it may deter future war crimes in the Israeli-Palestinian conflict, and marks another step towards statehood for Palestine.

Palestine’s accession will confer jurisdiction on the Court in relation to crimes committed within the territory claimed by Palestine. Although Israel has not ratified the Rome Statute, crimes allegedly committed by Israeli nationals in the territory claimed by Palestine will fall within the ICC’s jurisdiction. The ICC will also have jurisdiction over crimes committed by Palestinians outside the territory claimed by Palestine, including in Israel. Crimes falling within the ICC jurisdiction are limited to genocide, war crimes and crimes against humanity. But the accession can only confer on the Court jurisdiction over crimes committed after the Rome Statute enters into force for Palestine on 1 April. And until the borders of Palestinian territory are clearly defined and the status of occupied territories resolved, the ICC’s territorial jurisdiction will remain contentious.

In order to bring past crimes within the ICC’s jurisdiction, Palestine, on 1 January, lodged a declaration under Article 12(3) of the Rome Statute, retroactively accepting the Court’s jurisdiction. Although in principle such declarations can extend to crimes committed after 1 July 2002, when the Rome Statute entered into force, Palestine decided to limit it to crimes committed since 13 June 2014. The declaration, if accepted by the ICC, would therefore bring into the ICC’s jurisdiction last summer’s conflict in Gaza but not earlier military operations.

In principle the Rome Statute does not prevent Palestine from filing a new declaration in the future accepting retroactive jurisdiction from a different date. Given the contentious nature of Palestine’s statehood, however, it remains unclear whether the ICC would accept a declaration covering crimes committed prior to the UN General Assembly’s decision in 2012 to upgrade Palestine’s status at the UN from ‘observer entity’ to ‘non-member observer State’.

Palestine’s accession to the Rome Statute and its retroactive acceptance of the ICC’s jurisdiction would not, however, automatically trigger investigations and prosecutions at the ICC. The situation in Palestine would have to be referred to the ICC prosecutor by a state party, unless the ICC prosecutor decides on her own initiative to start an investigation subject to the Court’s authorization. Given the recent collapse of the case against the incumbent president of Kenya, challenges of non-cooperation by Libya and Sudan, and limited funds and resources, the ICC prosecutor might be reluctant to get involved in the Israeli-Palestinian conflict. Even if Palestine made a referral in which it sought to limit the scope of the referral to Israel’s conduct, the prosecutor would be bound to investigate the responsibility of perpetrators on both sides of the conflict.

Despite Palestinian accession to the Rome Statute, primary jurisdiction for the prosecution of international crimes will remain in the hands of domestic courts. The ICC only steps in when a state is unwilling or genuinely unable to carry out the investigation or prosecution. Israel might be able to argue that its domestic procedures are adequate, if it proved that it is effectively investigating and prosecuting alleged crimes, but this would be more difficult with regard to acts that are not recognized as crimes at the domestic level. For example, activities in relation to the establishment of Israeli settlements could be prosecuted at the ICC if the Court determined that they amounted to war crimes. Palestine might also argue that given the continuous nature of such settlement activity it should fall within the ICC’s jurisdiction even if it occurred before 13 June 2014. This argument might be also be used for other crimes of a similar nature such as enforced disappearances, forcible transfer or displacement of civilians.

The accession to the Rome Statute is yet another step towards statehood for Palestine. While there are those who will argue that Palestine’s accession to the Rome Statute is not conducive to the peace process, it should help strengthen domestic judicial systems in Palestine and Israel as well as prompt effective domestic investigations and prosecutions of alleged crimes. Hopefully, it will also encourage both sides in the Israeli-Palestinian conflict to comply with their obligations under international human rights and international humanitarian law.

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