The ICC Review Process: A Window of Opportunity for the Situation in Palestine

Author: Yasmine Oubaziz, Legal Intern, Coalition for the ICC

This year, the International Criminal Court (the ICC or the Court) is expected to deliver one of the most controversial decisions in its history. At the request of the Office of the Prosecutor, Pre-Trial Chamber I will decide on the Court’s territorial jurisdiction in Palestine. ICC Prosecutor Fatou Bensouda called the Chamber “to confirm that the ‘territory’ over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza”.

In deciding the scope of its territorial jurisdiction, the Court will either recognize it has jurisdiction over alleged international crimes in Palestine or decide that the territory will remain a “blind spot of international justice”.  If the Court decides the latter, the territory would become a “legal black hole” of impunity for the most serious international crimes.

This decision is expected to be delivered at a time when the Court struggles with criticism, threats, sanctions, and challenges to its mandate. The need to strengthen the Court to confront such challenges is one of the reasons why State Parties to the Rome Statute have initiated a review of the ICC and the Rome Statute system.

The Review Process aims to uncover the Court’s shortcomings with a view to ensuring a more efficient and effective system of international justice. Notably, the ICC Review Process also presents an opportunity to protect and strengthen the Court in the light of the situation in Palestine. First, this article will describe the hostile political landscape of the situation in Palestine and the many challenges it presents to the Court. Second, it will argue that such obstacles could be overcome by the ICC Review Process and State Parties cooperation.

The situation in Palestine: A hostile political landscape

The Court will likely encounter serious challenges in implementing its mandate given the contentious political landscape surrounding the Palestinian situation. The State Parties’ reaction to any investigation is crucial, as States’ support is necessary for the Court to overcome obstacles ahead.Unfortunately, the Court still faces great political pressure from States that push back against the investigation in Palestine. While Palestine has urged the ICC to shorten its delays regarding the investigation and urged a prompt opening of the operations, the new Israeli government has called for sanctions against the ICC to hinder progress.

Within the UN human rights system, Mr. Michael Lynk, the UN Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, has supported the ICC Prosecutor’s initiative for an investigation of alleged war crimes in the Occupied Palestinian Territory. He emphasized that such an investigation would be a “momentous step for accountability”.

As expected, and as the situation escalates, Israel has found in the United States a strong and influential ally. Since the United States is currently facing the possibility of its nationals being investigated by the ICC for alleged war crimes and crimes against humanity committed in Afghanistan since 2003, both allies seem to be fighting the same fight against the Court. Importantly, neither the United States nor Israel have ratified the Rome Statute. Instead, both States have declared their own national courts to be competent to investigate any alleged Rome Statute crimes. Their common concern has translated to relentless threats against the ICC, with the purpose of discrediting its jurisdiction.

Palestine, on the other hand,acceded to the Rome Statute in January 2015. Apart from the opposition of Israel and the United States to this accession, other State Parties have not expressed opinions about Palestine participating in the Assembly of States Parties (ASP) as a State Party or about it holding positions in the ASP Bureau. Consequently, the sudden questioning about the nature of Palestine’s territory may very likely be an attempt to politically interfere with the Court’s judicial proceedings.

The ICC Review Process: A timely necessity and opportunity

The issues and animosity around the situation in Palestine take place against the backdrop of the ongoing ICC Review Process. This process responds to the challenges that the Court has experienced throughout the years and the need for a substantial and in-depth examination of the Rome Statute. The Court’s credibility and strength is of utmost importance to enable the fulfillment of its mandate to fight impunity and, ideally, deter atrocities. 

As part of the Review Process, a group of Independent Experts working in three clusters (Governance, Judiciary, and Prosecution and Investigation) are expected to submit a report to the ASP Bureau on September 30, 2020. Their highly anticipated report would highlight the areas in which the ICC needs re-examination and revision. Due to this year’s critical situation and the high pressure on the Court, the ICC Review could be the best hope to re-establish a strong foundation of the Rome Statute system and to fortify the Court against the numerous threats it has been facing. It therefore represents a significant opportunity in the light of the Palestinian and other situations under its consideration.

In the light of the Palestinian situation, the Review Process could not be timelier. The Review could result in the protection of the Court’s independence and impartiality as a complementary international judicial institution by addressing shortcomings and closing loopholes in the Court’s system.Cooperation is one of the most important aspects on which the Review will focus, and it is critical for any ICC situation, including and particularly the one in Palestine. As the Court aims to empower its mandate and widen its outreach, such outcomes will only be possible with a credible, strong Court, supported by its State Parties, civil society, and the international legal community.

In this context, civil society remains a key stakeholder in ensuring the Review Process sustains and protects the ICC and the Rome Statute system through advocacy, awareness, and strategic litigation. Civil society has already approached the ICC many times regarding the situation in Palestine and it continues to do so, notably through amici curiae. The Coalition for the ICC (CICC), in particular,is an extremely important player and has continuously raised awareness of human rights violations since the opening of the preliminary examination in Palestine in 2015. CICC members have submitted “relevant information” to the Office of the Prosecutor while continuing to call on both Palestine and Israel to fully cooperate with the ICC. Because the Review Process presents a huge opportunity regarding the situation in Palestine, civil society is expected to push for implementation of the highly anticipated recommendations aimed at strengthening the Court. There is hope that such recommendations would, or at least begin to, address the challenges around the Palestinian situation, such as the lack of cooperation of States.

To conclude, although the Court is committed to fulfilling its mandate, an increasingly hostile political environment has encompassed and weakened it. Troublingly, it faces threats and challenges not only from non-State Parties, but also from State Parties that are bound to cooperate with it. Fortunately, the ICC Review Process provides a unique window of opportunity to bring concrete measures to the table that brace the Court against threats and international political pressure aimed at infringing on its judicial mandate. Such a strengthened Court will be able to make greater strides in the fight against global impunity, including in Palestine.