On January 16, 2015, Fatou Bensouda, prosecutor of the International Criminal Court (ICC), announced her decision to open a preliminary examination of the situation in “Palestine.” This followed the accession of “Palestine” to the Rome Statute (the treaty that regulates the establishment and activity of the court), and the declaration by “Palestine” accepting ICC jurisdiction over crimes allegedly carried out in “the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”

As early as 2009, when Operation Cast Lead ended, the Palestinian Authority (PA) turned to the ICC and requested that it investigate war crimes committed in its territories since July 2002. In 2012 this request was rejected by the previous ICC prosecutor, who explained that “Palestine” is not a state and therefore the court lacks jurisdiction over events that occurred there. According to the prosecutor, the authority to determine what defines a “state,” specifically “for the purpose of acceding to the Rome Statute” should be made by “the relevant bodies at the United Nations or the Assembly of State Parties.” However, Bensouda determined that in the wake of the UN General Assembly resolution of November 29, 2012 upgrading Palestine’s status in the UN to “non-member observer state,” “Palestine” can be seen as a state for the purpose of acceding to the Rome Statute and the purpose of ad hoc acceptance of jurisdiction. As such, the court has jurisdiction over crimes committed in its territory. The prosecutor did not engage in an in-depth analysis of this point, even though it is far from unequivocal from a legal point of view whether a political body such as the UN General Assembly has the mandate to decide whether an entity is a state for purposes of the Rome Statute.

According to ICC policy and practice, if a state that is not a party to the Rome Statute lodges a declaration accepting the jurisdiction of the court to investigate war crimes, and on the face of it there are initial grounds to suspect that such crimes took place, a preliminary examination will be conducted, unless it is a case that is clearly outside the jurisdiction of the court. Therefore, the fact that a preliminary examination was opened does not, in and of itself, indicate that the prosecutor believes that war crimes were committed. According to an official report by the office of the prosecutor, as of late 2014, some ten preliminary examinations were underway, including of British forces in Iraq and US forces in Afghanistan; Russian and Georgian forces regarding the conflict between them; operations connected to the conflict in Ukraine; and the situations in Nigeria, Guinea, Honduras, and Colombia. During 2014, there was also a preliminary examination of the Gaza flotilla incident from 2010, following a referral by the Union of the Comoros, under whose flag the Mavi Marmara sailed. At the end of the examination, it was decided not to investigate the incident, given the lack of sufficient gravity of the case.

Read the article in full at INSS.