On January 22, 2009 the Palestinian Authority attempted to bring war crimes charges against Israel by accepting the jurisdiction of the International Criminal Court over the West Bank and Gaza, despite the fact that the PA is not a state. Today, ICC Prosecutor Luis Moreno-Ocampo declined to find that the ICC had jurisdiction, because the court’s charter, the Rome Statute, “provides no authority for the Office of the Prosecutor to adopt a method to define the term “State”.” That marks a hard-fought victory, but the Prosecutor’s reasoning for declining to prosecute the case points to a larger battle that may well play out in one of the most hostile arenas to Israel: the United States General Assembly.
Moreno-Ocampo correctly noted that the Rome Statute does not contain any provision that would allow it to unilaterally define what is and is not a state. This is a critical point, insofar as only states may join the Rome Statute by acceding to it, and thereafter bring cases before the ICC. Unfortunately, he then stated that “competence for determining the term “State” within the meaning of article 12 [of the Rome Statute] rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly.” Alternatively, he suggested that the Assembly of States, i.e. the body of states who are party to the Rome Statute, could decide to “address the matter.”
One might ask why the UN should be involved at all, since the ICC – unlike the International Court of Justice – is not in fact a part of the UN, but an independent entity governed by the Rome Statute. Moreno-Ocampo explained that because:
the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter.
The UN’s lengthy Summary of Practice of the Secretary-General as Depository of Multilateral Treaties does indeed state that, “The Secretary-General must ascertain whether a State or an organization may become a party to a treaty deposited with him” and that the General Assembly could effectively consider any “particular entity to be a State” and instruct the Secretary-General to act accordingly.
In this case, that would mean declaring ‘Palestine’ to be a state for purposes of the Rome Statute. The ICC could then theoretically decide to hear Palestinian charges against Israel without being challenged that it overstepped its authority in determining who is a state and who is not. However, all of the treaties mentioned in the Summary of Practice are UN treaties; the Rome Statute is not. And while the General Assembly might have apparently acquired the ability to declare who may or may not sign UN treaties, there is absolutely no clear authority that it has any legitimate power to define who may sign international treaties that are not under the authority of the UN.
When it comes to Israel, the General Assembly has unfortunately been all too willing to ignore the actual powers and limitations provided in the UN Charter, and it is not difficult to foresee this issue becoming another such case. So while we should all be encouraged that the ICC declined to find that it has jurisdiction over Gaza and the West Bank, we must bear in mind that this doesn’t mean “not ever,” but only “not yet.”
