Palestine, the ICC, and the illusion of state control

Palestine’s top diplomat is warning Israel that continuing with its settlement plans will lead to action at the International Criminal Court:

Palestinians have said that continued Israeli settlement in occupied areas near Jerusalem will leave it with no choice but to take Tel Aviv to the International Criminal Court (ICC) in the Hague.

Riad Malki, the Palestinian foreign minister, said on Wednesday his government’s decision will largely depend on what the Israelis do with the so-called "E1" area outside the Arab suburbs of East Jerusalem.

Malki said allowing Jewish settlers into the so-called E1 zone would be "trespassing the red lines".

The Palestinians are "absolutely not going to tolerate any construction in that particular area", Malki told reporters after addressing a UN Security Council meeting on the Middle East conflict.

All the stories I’ve seen on Malki’s comments today make a basic error about the way the ICC operates: they assume that Palestine will be able to bring Israeli activity to the attention of the court only once Palestine formally joins the court. Al Jazeera‘s story includes this passage:

The Palestinians are yet to join the ICC, which prosecutes charges of genocide, war crimes and other major human rights violations. They must first apply to join the court, and once a member they could refer Israel for investigation.

In fact, the Rome Statute allows non-member states to give the court jurisdiction over their territory even absent a decision to become a court member. Palestine has already attempted to do so: in the wake of the 2008-2009 Gaza War, the justice minister of the Palestinian Authority submitted a declaration purporting to give the court jurisdiction over relevant crimes committed on Palestinian soil for "an indeterminate period." 

The incorrect assumption that Palestine must somehow set the ICC in motion reflects a larger confusion about the court. Casual observers, including many journalists, tend to think of the ICC process as state-driven, akin to the International Court of Justice or the World Trade Organization. In those institutions, state action is essential to setting in motion the legal machinery.

For the most part, the ICC doesn’t work that way. It is a prosecutor-driven institution. The ICC’s founding document gives the prosecutor the power to initiate investigations on his or her own, assuming the court has jurisdiction. And the prosecutor has the sole discretion to decide which alleged crimes to pursue and which to ignore. The Palestinians can tell the court about any and all Israeli acts they believe are illegal–including settlements–but the prosecutor alone decides whether to pursue them and whether to bring any charges.

Threatening to take Israel to the ICC may be good theater, but it’s not much more than that. Palestine has already attempted to give the court jurisdiction. It is now up to the court to decide whether that declaration has force. In April of last year–several months before the UN took up the question of Palestine’s status–the prosecutor decided that he had no competence to decide whether Palestine was a state capable of granting the court jurisdiction.  But in making that decision, the prosecutor wrote this:

The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue [of statehood]. 

As the prosecutor framed the issue, last year’s General Assembly vote recognizing Palestine as a non-member state should have resolved the statehood question. The relevant issue now is not what Palestine will do, but what the court will do.