With Resolution A/67/L.28 on the Status of Palestine at the United Nations having been passed with an overwhelming majority at the General Assembly on November 29, 2012, the Palestinian Authority’s status has been upgraded from a United Nations permanent observer entity to that of a non-member observer State. Although the Resolution does not necessarily mean that all States, including the nine that voted against the Resolution and the forty one that abstained, must now recognize Palestine as a State, it does mean that Palestine will have access to United Nations and agencies, including the International Criminal Court.
For many observers, this has been hailed as a great triumph for Palestine, and some commentators anticipate that Palestine will seek membership at the International Criminal Court in order to file claims against Israeli officials for the Gaza blockade, disproportionate attacks against and collective punishment of Palestinians, and the occupation of the West Bank. However, as will be shown below, seeking membership at the Court will prove to be a double-edged sword for Palestine. Israel will inevitably counterclaim against Palestinian officials, including members of Hamas responsible for intentional attacks against civilian targets in Israel.
Palestine’s Right to File Claims without Israel’s Consent
Under article 12 of the Rome Statute of the International Criminal Court (SICC), in order for the International Criminal Court to exercise jurisdiction, either: (i) the crime must have been committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State; (ii) the nationality of the accused must be with a member State; or (iii) the State in question must agree to jurisdiction. Israel is not a member State of the International Criminal Court. Therefore, the only way that Israeli officials could be tried by the Court would be if either Israel accepted the Court’s jurisdiction, which given Israel’s past conduct would be highly unlikely, or a crime over which the Court exercises jurisdiction is committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State. What this means is that if Palestine becomes a member State of the Court, which it may now do as a result of the recognition conferred by Resolution A/67/L.28, it could file claims against Israeli officials at the Court for crimes that occurred on Palestinian territory.
Palestine’s New Right— Robust as It Seems?
This sounds like a major shift in politics and relations of Israel and Palestine, since Palestine may now pursue Israeli officials before the International Criminal Court without Israel’s consent. It is so significant that some nations, including the United Kingdom, sought a commitment from Palestinian leaders that Palestine would not file a claim against Israel before the International Criminal Court as a precondition to voting for Resolution A/67/L.28. When the United Kingdom did not receive this commitment, it abstained from voting on the Resolution.
However, while Palestine’s potential International Criminal Court membership appears significant and, according to some commentators, it may significantly derail the Israel-Palestine peace process, the reality is that the Court will not likely play any important role in the relations between the two nations. Palestine is keenly aware if it were to join the International Criminal Court and file a claim against Israel, Israel would immediately retaliate with a counterclaim. Palestine would quickly find its membership with the Court to be a mixed blessing: Palestine would not only enjoy the right to bring actions before the Court but would also be vulnerable to actions brought against it. Of the claims over which the Court holds jurisdiction, one could make the argument that Palestine, through its Gaza Strip arm ruled by Hamas, is far more vulnerable to claims brought against it than is Israel.
For example, it would be difficult to characterize the blockade of the Gaza Strip or Israel’s disproportionate counterattacks as crimes falling under the Court’s jurisdiction, such as murder or extermination “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 SICC). Israel would argue that the blockade and attacks were never aimed at civilians, but rather at Hamas militants who have repeatedly fired rockets into civilian areas of Israel. Other supposed crimes such as collective punishment of Palestinians and the settlements are, in the words of Kevin Jon Heller’s November 29, 2012, Opinio Juris commentary, “fraught with ambiguity and difficult to prove.”
Defending Against Israeli Claims
Palestine, in contrast, would encounter great difficulty defending against an Israeli claim that Hamas fired rockets directed at civilians in Tel Aviv and Jerusalem, thus constituting crimes against humanity. If Israel could prove that rockets were fired indiscriminately at civilian targets, Palestinian leaders could be held guilty of violating the principle of distinction (discrimination), a key precept of international humanitarian law that requires parties to a conflict to distinguish between the civilian population and combatants in order to spare civilian populations and property.
Palestinian Fatah leadership could argue that rockets fired were under the exclusive control of Hamas, a non-state entity that neither represents the Palestinian people nor serves as the legitimate governmental authority of Palestine. However, such an argument would likely be futile. International criminal law over the last century has increasingly recognized non-state actors as potential violators of international law. There has been renewed and increasing interest in assigning responsibility and accountability to them for their actions. There has thus been a trend in both domestic as well as international law to find jurisdiction in such cases. Even the 1945 Charter of the International Military Tribunal (London Charter), which laid out the laws and procedures of the Nuremberg Tribunal that adjudicated crimes against the Nazi regime, could be read to apply to non-state actors. The International Criminal Tribunal for Rwanda made clear that crimes committed by non-state actors could be adjudicated, and the International Criminal Tribunal for the Former Yugoslavia went as far as even convicting a number of non-state actors for crimes against humanity.
Following this trend, the International Criminal Court allows prosecutions of individual non-state actors. In defining “crimes against humanity,” the Statute of the Court requires that attacks directed against any civilian population involve a “course of conduct involving the multiple commission [of murder, extermination, enslavement, etc.] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (art. 7.2 SICC). Thus, by including “organizational policy,” the Statute of the Court can be read to include acts by organizations, such as insurrection movements or other groups such as Hamas that may not have a clear nexus with state action.
The General Assembly’s upgrade of Palestine from observer entity to non-member observer State is more complicated than would seem at first glance. Although the upgrade will grant Palestine new rights under international law, the exercise of at least some of these rights, including the filing of claims against Israeli officials before the International Criminal Court, could be more detrimental to Palestine than to Israel.