The March 3, 2021 decision of the Prosecutor of the International Criminal Court to open a full investigation of the “Situation in Palestine” has prompted responses advising the Israeli government to take a more cooperative approach toward the Court. Yet there are a number of strong strategic, diplomatic, and legal arguments for not cooperating. This study analyzes the considerations that must be weighed carefully by Israeli policy makers before deciding next steps.
On March 3, 2021, Prosecutor of the International Criminal Court (ICC) Fatou Bensouda issued a statement confirming the initiation of an investigation by the Office of the Prosecutor (OtP) “respecting the Situation in Palestine,” covering crimes purportedly within the jurisdiction of the Court, dating from June 13, 2014.1 She noted that although the Court is currently facing “operational challenges” from the COVID-19 pandemic, limited resources, and “our current heavy workload,” such “daunting and complex” challenges “cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the Office.”
In December 2019, Bensouda requested from the Pre-Trial Chamber (PTC) a confirmation of jurisdiction to open an investigation. Her March 3, 2021 announcement that the investigation would proceed followed the February 5, 2021 decision by the PTC confirming the OtP had jurisdiction to open an investigation in Gaza, the West Bank, and “East Jerusalem.” The opinion was issued despite the facts that the Palestinian Authority lacks the capacity to join the Rome Statute because it is not a state, and Israel is not a member of the Court.
Bensouda’s statement has prompted responses from several Israeli scholars and those sympathetic to the Court2 (one analysis considered the Prosecutor’s statement to be a sign of “outstretched friendship”3) advising the Israeli government to take a more cooperative approach toward the Court. Such well-intentioned recommendations appear to be based on the theory that engagement with the OtP will lead to a more favorable result for Israel than would occur in its absence.
- https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statementinvestigation-palestine. Under Article 18(1) of the Rome Statute (the ICC’s governing instrument), the Prosecutor may also notify on a confidential basis “all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned.”
- Yael Ronen, “The ICC Prosecutor’s statement on the Situation in Palestine: A Hand Stretched forth in Friendship?,”EJIL: Talk!, March 12, 2021 https:// www.ejiltalk.org/the-icc-prosecutors-statement-on-the-situation-in-palestine-ahand-stretched-forth-in-friendship/; Kai Ambos, “’Solid jurisdictional basis’? The ICC’s fragile jurisdiction for crimes allegedly committed in Palestine,” EJIL: Talk!, March 2, 2021, https://www.ejiltalk.org/solid-jurisdictionalbasis-the-iccs-fragile-jurisdiction-for-crimes-allegedly-committed-inpalestine/; Eli Bar-On, “The Involvement of the International Criminal Court in the Israeli-Palestinian Conflict: A New Chapter,”IDC Institute for Policy and Strategy, March 14, 2021, https://www.idc.ac.il/en/research/ips/pages/insights/elibar-on-14-3-21.aspx; Nick Kaufman, “The ICC Prosecutor Was My Superior. It Is Unfortunate That Netanyahu Should Speak of Antisemitism,”Ha’aretz, March 10, 2021, https://www.haaretz.com/opinion/.premium-the-icc-prosecutor-was-mysuperior-netanyahu-shouldn-t-speak-of-antisemitism-1.9605292.
- Ronen, “The ICC Prosecutor’s statement.”