Turkey, Israel and the ICC (updated)

I’ve seen several news reports today indicating that Turkey is planning on lodging a complaint with the International Criminal Court about Israel’s Gaza blockade (e.g., here and here). While the references are not very clear, they seem to indicate a misunderstanding of how the ICC works. Turkey cannot bring a complaint to the ICC, in ...

By , a professor at Indiana University’s Hamilton Lugar School of Global and International Studies.

I've seen several news reports today indicating that Turkey is planning on lodging a complaint with the International Criminal Court about Israel's Gaza blockade (e.g., here and here). While the references are not very clear, they seem to indicate a misunderstanding of how the ICC works. Turkey cannot bring a complaint to the ICC, in the sense of one party suing another, thereby opening a case that judges decide. The Turkish government can certainly provide information to the prosecutor about alleged crimes (as can individuals and NGOs), but it is only the prosecutor and judges that can decide to open a formal investigation. Moreover, there are several formidable obstacles to ICC involvement. First, it's not clear that the activity Turkey is complaining of fits into one of the defined categories of crimes the ICC can prosecute (a violation of international law broadly speaking isn't enough--the conduct has to constitute a war crimes, crime against humanity or genocide).

I’ve seen several news reports today indicating that Turkey is planning on lodging a complaint with the International Criminal Court about Israel’s Gaza blockade (e.g., here and here). While the references are not very clear, they seem to indicate a misunderstanding of how the ICC works. Turkey cannot bring a complaint to the ICC, in the sense of one party suing another, thereby opening a case that judges decide. The Turkish government can certainly provide information to the prosecutor about alleged crimes (as can individuals and NGOs), but it is only the prosecutor and judges that can decide to open a formal investigation. Moreover, there are several formidable obstacles to ICC involvement. First, it’s not clear that the activity Turkey is complaining of fits into one of the defined categories of crimes the ICC can prosecute (a violation of international law broadly speaking isn’t enough–the conduct has to constitute a war crimes, crime against humanity or genocide).

Second, there’s a major question as to whether the ICC would have jurisdiction. Israel is not an ICC member state and so jurisdiction would have to be based somehow on the territory where the alleged crimes occurred. And that, in turn, opens the question of whether Palestine itself has the standing to acquiesce to ICC jurisdiction. Palestinian representatives have lodged a declaration with the court accepting jursidiction, but the court has not yet decided what force, if any, that declaration has. It appears that the court, like just about everyone else, is waiting to see how events unfold at the United Nations this fall before making any definitive statement.

Update: A reader emails to point out that this Guardian article makes clear the Turkish will be pursuing a remedy at the International Court of Justice, not the ICC, which makes much more sense.

Further update: There would still seem to be jurisdictional problems for the Turkish government at the ICJ. It appears that neither country accepts the compulsory jurisdiction of the court, which means that Turkey would likely need to base jurisdiction on some treaty both countries have signed that provides for ICJ resolution of disputes. Georgia encountered a similar problem in its ICJ case against Russia; the court ultimately found that Georgia’s treaty hook couldn’t sustain a case.

David Bosco is a professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of The Poseidon Project: The Struggle to Govern the World’s Oceans. Twitter: @multilateralist

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