After Lawfare Maneuvering, Palestinian Authority Officially Joins International Criminal Court
Yesterday, the Palestinian Authority officially became the 123rd member of the International Criminal Court (ICC), three months after signing the ICC's founding Rome Statute and accepting the court's jurisdiction over alleged crimes committed since June 13, 2014, which would include last summer's Operation Protective Edge.
Shortly thereafter, the ICC Chief Prosecutor opened a preliminary examination into the "situation in Palestine" to evaluate "issues of jurisdiction, admissibility and the interests of justice" in determining whether to launch an investigation into alleged crimes committed in the West Bank, East Jerusalem, and Gaza.
As The Lawfare Project previously wrote, the decision to open such an examination was of great concern, undermining the ICC's legitimacy as a competent legal entity as well as the Prosecutor's proclamations of the court's supposed independence from the United Nations General Assembly. Because only states can accede to the Rome Statute, the Prosecutor's decision rested on her finding that a Palestinian "state" actually exists. Despite the fact that the Palestinians do not meet the requirements for statehood under well-established international law--and that the UN Security Council has expressly rejected the Palestinians' bid for statehood--the Prosecutor instead relied on the UN General Assembly's 2012 vote to upgrade the Palestinians' status from "non-member observer entity" to "non-member observer state."
Not only does the General Assembly lack authority to create states (nor are its resolutions legally binding), but nothing in international law suggests that the General Assembly's vote to upgrade the Palestinians' status should have any bearing on the jurisdiction of the ICC, an entity independent of the United Nations. Moreover, as has been noted by Lawfare Project Fellow Eugene Kontorovich, Palestinian ICC membership violates specific Palestinian commitments of the Oslo Accords, an internationally-guaranteed agreement: to not seek a final status determination outside of negotiations, and giving Israel exclusive criminal jurisdiction over Israeli nationals in the West Bank.
The United States, Canada, Israel, and other nations maintain the position that the Palestinians are not eligible to join the ICC due to their lack of statehood status.