Simmer Down, Y’all

Dear Internets,

Yes, the UN General Assembly’s approval of “non-member observer state” status for Palestine is big news. No, it does not mean that Israeli leaders should be keeping an eye out for ICC investigators.

Palestine’s new status as a sorta-kinda-maybe-state does mean that it can now join the ICC. But, as Mark Goldberg points out, if Palestine tries again to refer the situation to the court, it will be up to Chief Prosecutor Fatou Bensouda first to decide whether to open an investigation, and then whether to issue charges. At either stage, she might decide that the evidence doesn’t support proceeding, or that pursuing a case is not “in the interests of justice” (Rome Statute, Art. 53). That last one gives her broad discretion to decline to proceed, which could be useful cover if, say, she felt that it was not a real swell idea for a young institution in a politically precarious position to piss off the superpower by going after one of its most important allies. You know, hypothetically.

Additionally, the Prosecutor might conclude that she is blocked by Israeli court proceedings covering actions in Palestine (Rome Statute, Art. 19). The ICC’s jurisdiction is complementary, which means it is only empowered to hear cases that the relevant state judicial system(s) are “unwilling or unable” to prosecute. Unlike many of the states who make up the ICC’s current caseload, Israel has a competent and active judiciary that has heard numerous cases arising out of policy towards the Occupied Territories. Determining that past judicial precedent suggests an “unwillingness” to prosecute would require a complicated and messy analysis that ICC is ill-equipped to undertake.

Finally, even if the Prosecutor were willing to proceed, it is not clear what events would be eligible. The ICC’s potential temporal jurisdiction over a state’s territory starts from the day the Rome Statute entered into force for that state. For many states, that’s the day of the court’s birth, July 1, 2002, but for those states that signed the treaty after the court started its work, it’s later.

So if Palestine joined the ICC tomorrow, a straightforward interpretation of the court’s jurisdictional provisions would say that the ICC could only prosecute crimes that take place starting from December 2012. There’s a possible Hail Mary argument invoking the Eichmann precedent that new states have retroactive jurisdiction over crimes against their citizens, but there’s no reason to think that this could be passed on to the ICC. The court only inherits its members’ jurisdiction over crimes committed by their citizens, or on their territory, not crimes committed against their citizens. And extending the ICC’s jurisdiction over Palestine back in time would effectively strip Israel of jurisdiction over a portion of its territory during a time in which it was the uncontested (with regard to formal institutions) sovereign. Additionally, the fact that Palestine’s “stateness” is likely to remain a bit of an open question makes any kind of retroactivity more of a stretch.

So there.

[Late-breaking news: Kevin Jon Heller has a new post up at Opinio Juris expounding a very different view. He cites Côte D’Ivoire’s April 18, 2003 acceptance of the ICC’s jurisdiction back to July 1, 2002 as evidence that states can give the court retroactive jurisdiction. I don’t agree that this is relevant precedent; Côte D’Ivoire was the territorial sovereign throughout the entire period, so its retroactive acceptance of jurisdiction raises none of the issues posed by a new state.]

11 thoughts on “Simmer Down, Y’all

  1. I don’t doubt that you’re factually correct, but no amount of cold water will dampen my hopes that the disgraceful treatment of the Palestinians will start coming to an end.

  2. Kate,

    So who was the territorial sovereign? If the answer is Israel, than Israel never legally occupied Gaza — a state cannot occupy its own territory.

    I also think it is problematic to claim that Palestine only became a state today — after all, more than 130 states have recognized Palestine for many years. The ICC has been overcautious in dealing with Palestine; as Bill Schabas has shown, it did not need to condition ratification on upgraded status.

  3. Snowshoe, whose disgraceful treatment of Palestinians? Israels? How about Jordan’s, Egypt’s, Syria’s, Lebanon’s, France’s?… the list goes on. Palestinians are treated better in Israel than anywhere else outside of America. They aren’t treated perfectly, but they get far better treatment in Israel than anywhere in the Arab world. If they would just calm down and try to assimilate into Israeli society they would be much better off.

    • Dan, seriously? Palestinians are treated better in Israel than say, here in Australia? Israel provides them with the second best treatment in the world? Somebody ought to tell the Palestinians how lucky they are – maybe they’d stop being so angry all the time…

      And why are you so concerned with grading the bad treatment of Palestinians? Given that you seem to accept that at least 6 countries treat them poorly, can we not just agree that they’re treated disgracefully, as I originally asserted? I suppose that you’re maintaining that it should only be 5 countries, with Israel exempt from your list. Why don’t you have a look at http://www.youtube.com/watch?feature=player_embedded&v=hHYOkCmEjFA and then tell me what good a global citizen Israel is.

      • I’m sorry, but that video is an obvious fabrication. The only consideration it should get is for an Oscar. No more Jordanian lies!

        • Perhaps you’d be so kind as to enlighten me where the obvious fabrication reveals itself? I’m open to the possibility, but with all due respect it would take more than just your word to convince me.

          • @Snowshoe
            The first thing I would ask you to do is watch the video again, but this time watch it objectively. Look at the special effects (the explosion), the staged scenes of chaos, and the editing. Google Pallywood to read more about the propaganda industry in Gaza.

          • @Dennis W, asking me to convince myself that the video is fake hardly constitutes “obvious fabrication”. I’m open to the possibility that it is – after all, there’s no shortage of propaganda from any other quarter, so it’s reasonable to expect that some would be produced by the Palestinians too. Irrespective, I assume that you don’t question the recent death toll in Gaza of over 130, with over 30 of them being children?

            In the interests of enlightenment and fair discussion, I did Google Pallywood, but was unable to sift through the propaganda to find anything of much substance. Typical of the links that I received were http://honestreporting.com/, which uses the by-line of “Defending Israel From Media Bias”. I also read up on Richard Landes, who claims to have coined the term – he’s clearly a lunatic who could never survive outside the circles of academia.

            Dennis, come up with something concrete, or drop off this conversation.

  4. Naomi and KJH,

    It’s for sure a complicated sovereignty situation, but I just don’t see how the power to accept ICC jurisdiction could vest with anyone other than Israel before yesterday.

    • So are you saying that Israel never legally occupied any part of Palestine? That is the necessary implication of your position — again, a state cannot occupy its own territory. The only other possibility is that no state had sovereignty over Palestinian territory, which seems difficult to justify.

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