ICC: Palestine is a state, can file war crimes complaints against Israel if chooses

ICC Prosecutor writes in ‘The Guardian’ that “Palestine could join Rome Statute”; endorsement of possible Palestinian application does not mean for sure Israelis will be indicted.

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Confirming officially for the first time what has been implied, International Criminal Court Prosecutor Fatou Bensouda, in a highly unusual op-ed on Friday in The Guardian, wrote that “Palestine” is now sufficiently a state to file war crimes complaints against Israelis if it chooses to join the ICC’s Rome Statute.

Ending speculation on the issue, Bensouda explained concisely that her office had concluded that following greater UN recognition in 2012, “Palestine could now join the Rome Statute.”

Bensouda’s op-ed, is in and of itself a highly uncharacteristic public venue for her to articulate her office’s usually closely held official positions. But it appeared to be a response to the unprecedented barrage of criticism following the recent Gaza war from a range of parties that her office was artificially blocking the Palestinians from filing against Israelis.

On August 5, Palestinian Authority Foreign Minister Riad al-Malki met with Bensouda to investigate in greater detail the possibility of Palestine joining the ICC’s Rome Statute, which would grant it the right to file war crimes complaints with the court.

At the time, Bensouda’s office merely confirmed that Palestine had not yet chosen to join the Rome Statute and, therefore, could not file any complaints.

Some had speculated that this message muddied Bensouda’s readiness to accept Palestine as a state.

This is despite prior more unofficial statements and hints indicating that she would accept Palestine as a state which could file complaints following the UN General Assembly’s recognition of Palestine as a non-member state on November 29, 2012.

Bensouda’s op-ed is especially significant as it effectively ends the debate on the issue and signals a win for the Palestinians despite failing to qualify with the ICC as a state during a push from February 2009 – April 2012.  

The UN Human Right’s Council’s newly appointed commission to investigate Israel and Hamas for alleged war crimes during the recent war, further multiplies the significance of the op-ed. 

In the piece, Bensouda explained critics were wrong to take the ICC’s inaction on the Palestine issue so far as evidence of obstruction.

Rather, said Bensouda, Palestine, like any other state, had to officially choose to join the Rome Statute, without which her office was powerless to act.

Bensouda also took aim at arguments that she should exercise her own personal discretion to end impunity and guarantee justice by seeking to file an indictment against Israelis without even Palestine joining the ICC and without a UN Security Council referral (the two standard ways for ICC cases to start.)

Effectively ending the debate on this issue as well, she said that in this situation, such unilateral action was a recipe for disaster, stating such unilateralism would be “neither good law nor does it make responsible judicial action.” 

Bensouda’s endorsement of any upcoming Palestine application (which Palestinian Authority President Mahmoud Abbas has said he will file if neither the US nor the UN press Israel into setting borders with him) does not mean that the ICC would for sure indict any Israelis involved in the war.

There are a number of other additional legal and diplomatic obstacles which could block such an indictment, but it does remove the primary obstacle that has been in place for the past five years.

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