International Court of Criminals politicizes itself by accepting the legal fiction of Palestinian statehood
The Lawfare Project is deeply concerned with the recent decision by the Prosecutor of the International Criminal Court (ICC) to open a preliminary examination into the “situation in Palestine,” which follows Palestinian Authority President Mahmoud Abbas’s signing of the ICC’s Rome Statute earlier this month.
During the inquiry, the Prosecutor will 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. Because Abbas recognized the ICC’s jurisdiction retroactively, the Prosecutor could investigate last summer’s conflict between Israel and designated foreign terrorist organization Hamas (see The Lawfare Project’s analysis of war crimes and other violations of international law committed by Hamas).
Regardless of the examination’s outcome, this initial move directly undermines the ICC’s legitimacy, revealing politicization rather than legal competence. Because statehood is a condition of jurisdiction under the Rome Statute, the Prosecutor’s decision involved her finding that a “Palestinian state” actually exists. She did so based on the fact that the U.N. General Assembly voted in 2012 to upgrade the status of the Palestinian Authority from “non-member observer entity” to “non-member observer state.” This maneuver, which followed unsuccessful attempts to achieve legally recognizable statehood via the U.N. Security Council, received widespread criticism because the Palestinians did not at the time meet the requirements for statehood under well-established international law, as was discussed in The Lawfare Project’s article on the legal fiction of Palestinian statehood. Nor do they meet those requirements today.
Not only does the General Assembly lack authority to create states (and its resolutions are not 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. The Prosecutor’s willingness to expand ICC jurisdiction beyond the confines of the Rome Statute is of great concern, and her substitution of politics for law is indeed the epitome of lawfare.