Palestine Becomes Full Member of Int’l Crim Court, What’s Next? A Reader’s Guide

On April 1, Palestine becomes the 123rd full member of the International Criminal Court (ICC) as the statute now enters into force.

Many commentators have speculated whether Palestine will now bring a case involving Israel to the Office of the Prosecutor? This step is called “referring” a “situation,” in the parlance of the Court’s statute. Now that Palestine is a member, however, any other country that is also a party to the ICC Statute can do the same. A more pertinent question might be whether the Comoros will bring such a case to the Prosecutor. A post at Just Security by the former Chief Prosecutor of the International Criminal Court, Luis Moreno Ocampo, for instance, recognizes this possibility. Beth Van Schaack also covered the Comoros’ earlier failed attempt to refer a situation, that is, before Palestine was a member.

Another question is whether any such proceedings will include Israeli settlements? This is a critical issue, because unlike other war crimes charges, Israel will not be able to mount a successful challenge to the Court’s jurisdiction by claiming that it is conducting its own criminal investigation of such actions. Posts by Ocampo, David Luban, and Nimrod Karin discuss this topic under the Court’s rules of “complementarity” which defer to states if they conduct their own credible national-level criminal processes.

Whither Oslo? A threshold question for jurisdiction is whether any investigations involving Israeli defendants are barred by the Oslo Accords. David Luban’s post addresses this question. This topic obviously raises not only legal questions but significant policy questions as well. If the Prosecutor or Court try to reason their way around – and thereby erode – the Oslo agreement, it could undermine the political situation on the ground. Nimrod Karin’s second post raises those prospects in his post.

On the other hand, does Palestine’s joining the ICC provide an opening for more effective political negotiations. In his post, Ocampo says yes, but in a response to him, Alan Dershowitz says no.

Will Palestine’s joining the Court or a subsequent referral of a situation to the Prosecutor result in an automatic cut off of aid to the Palestinians under U.S. federal law? A guest post by Kip Hale explores the likelihood of such an outcome.

Finally, are the questions of Palestinian statehood for the purpose of ICC membership firmly behind us or might those questions still be raised in the proceedings? Will the nature of the process for approving Palestine’s membership affect the legitimacy of future proceedings? See our spirited debate between Rob Howse on one side (and here), and former Legal Adviser to Palestine’s Mission to the United Nations, Yousef N. Zeidan and Jonathan Somer on the other. On the general question of Palestinian statehood and accession to multilateral treaties, also check out the earlier exchange between Fionnuala Ní Aoláin and Nimrod Karin.

And if you haven’t gotten your fill, see Beth Van Schaack’s “Timeline: Palestine and the International Criminal Court.” 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.