Since Palestine is not a full UN member state, The Hague says it cannot investigate misdeeds committed there
While pro-Israel advocates hailed the decision as a victory in the arena of “lawfare,” the Foreign Ministry in Jerusalem greeted it with a lukewarm response.
A few days after Operation Cast Lead, in early 2009, Palestinian Justice Minister Ali Khashan wrote to the International Criminal Cour asking it to investigate Israel’s conduct in the West Bank and Gaza. In his letter, he officially recognized the jurisdiction of the ICC “for the purpose of identifying, prosecuting, and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July, 2002.”
Founded in 2002, the Hague-based ICC seeks to “help end impunity for the perpetrators of the most serious crimes of concern to the international community,” according to its website. The ICC prosecutor’s office launched an preliminary probe to determine whether to proceed with an investigation, allowing, among other things, the Arab League’s ”Independent Fact Finding Committee on Gaza” to address the court.
But according to the 1998 Rome Statute, which governs the ICC, the court can only become active when either the United Nations Security Council or a state provide jurisdiction. The question the ICC had to grapple with was whether to consider Palestine a state.
And while the ICC prosecutor’s office noted “that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies,” the organization concluded that because Palestine’s current status is that of “observer” and not a “non‐member state,” it had presently no jurisdiction to launch an investigation into acts committed in Palestine.
“Israel made it clear in the first place that the ICC has no jurisdiction in this matter,” the Foreign Ministry responded Tuesday in a dryly worded statement. “In Israel, the issue has, for an extensive period of time already, been addressed by inter-ministerial teams, headed by the Ministries of Foreign Affairs and of Justice, with the participation of other bodies.”
Israel “welcomes” the decision on the lack of ICC jurisdiction, but has “reservations regarding some of the legal pronouncements and assumptions in the Prosecutor’s statement,” the statement added.
Some pro-Israel activists, on the other hand, enthusiastically celebrated the decision: “Throughout this process, the ICC — created to punish the worst perpetrators of war crimes and mass murder — was exploited by several EU- and European-government funded non-governmental organizations (NGOs), which intensively lobbied the OTP as part of their campaign to attack the legitimacy of the State of Israel,” Anne Herzberg, legal advisor for NGO Monitor, said in a statement released Tuesday.
“The fact that the case even proceeded this far was clear legal overreaching, but it shows the strength of NGOs that lead the de-legitimization and demonization campaigns against Israel,” said Herzberg, who submitted a 40-page legal brief to the ICC.
The court’s decision “is a strong rebuke to these NGOs, their political agenda, and their campaign to isolate Israel from the international community,” she added. “International arenas are routinely hijacked for political purposes, but today’s decision was markedly different.”