Israel, Palestine, and the ICC
Daniel Benoliel & Ronen Perry, Israel, Palestine, and the ICC
Michigan Journal of International Law
Daniel Benoliel 0 1
Ronen Perry 0 1
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DanielBenoliel*
Ronen Perry**
INTRODUCTION
In the wake of the Israel-Gaza 2008-09 armed conflict and recently
commenced process at the International Criminal Court (ICC), the Court
will soon face a major challenge with the potential to determine its
degree of judicial independence and overall legitimacy. It may need to
decide whether a Palestinian state exists, either for the purposes of the
Court itself, or perhaps even in general.
The ICC, which currently has 113 member states, has not yet
recognized Palestine as a sovereign state or as a member. Moreover,
although the ICC potentially has the authority to investigate crimes
which fall into its subject-matter jurisdiction, regardless of where they
were committed, it will have to assess its jurisdiction over a non-member
* Assistant Professor, University of Haifa, Faculty of Law.
** Professor, University of Haifa, Faculty of Law.
We are grateful to Eyal Benvenisti, Emanuel Gross, and Yuval Shany for their helpful
comments, and to the editors of the MichiganJournal of InternationalLaw for their
remarkable work on this Article. Any inaccuracies are our own.
state, in this case Israel. Despite having signed the Rome Statute that
founded the Court and having expressed "deep sympathy" for the
Court's goals, the state of Israe
l withdrew its signature in 2002
, in
accordance with Article 127 of the Statute.' At any rate, a signature is not
tantamount to accession, and accordingly Israel was never a party.! The
latest highly publicized moves in The Hague come amid mounting
international pressure on Israel and a growing recognition in Israeli
government circles that the country may eventually have to defend itself
against war crimes allegations. Unlike the ad hoc international criminal
tribunals of the second half of the twentieth century, it already appears
that the Prosecutor of the International Criminal Court could act in
accordance with the formal requests of the state parties, and with respect
to the availability of the accused individual. The ICC already is said to
have encountered difficulties in reviewing the Prosecutor's exercise of
discretion in a few highly politicized international conflicts.' The recent
Israel-Gaza conflict and present judicial process serve as a prime
example.
The current debate concerns war crimes allegedly committed during
the recent hostilities between Israel and Palestinian combatants in the
Gaza Strip. The month-long 2008-2009 Israel-Gaza conflict, part of the
ongoing Israeli-Palestinian conflict,4 began when Israel launched a
military campaign in the Gaza Strip on December 27, 2008, code named
"Operation Cast Lead." The Operation's stated aim was to stop Hamas
rocket attacks on southern Israel, and it included the targeting of Hamas'
members, police force, and infrastructure International reactions during
the conflict included calls for an immediate ceasefire, as in the United
1. Rome Statute of the International Criminal Court art. 127, July 17, 1998, 2187
U.N.T.S. 3 [hereinafter Rome Statute].
2. See, e.g., Office of the Legal Adviser to the Ministry of Foreign Affairs, Israel and
the International Criminal Court, ISR. MINISTRY OF FOREIGN AFFAIRs (June 30, 2002), http://
www.mfa.gov.il/MFA/MFAArchive/2000_2009/2002/6/Israel and the International Criminal
Court. Israel has refrained from signing the Rome Statute because of its concerns about being
the subject of prosecutions generating from the illegal status of the settlements in the
Palestinian territories, which are considered by many to violate the Fourth Geneva Convention. See
U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Question of the Violation
of Human Rights in the Occupied Arab Territories, Including Palestine, 67, U.N. Doc.
E/CN.4/2001/121 (Mar. 16,2001).
3. INT'L CRIMINAL COURT [ICC], OFFICE OF THE PROSECUTOR [OTP], THE INTERESTS
OF JUSTICE 1 (2007), available at
http://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D4321-BFO9-73422BB23528/143640/ICCOTPInterestsOfJustice.pdf.
4. See, e.g., ANTHONY H. CORDESMAN, THE GAZA WAR: A STRATEGIC ANALYSIS 5
(2009), availableat http://www.csis.org/media/csis/pubs/090202_gaza-war.pdf.
5. Operation CastLead: IsraelStrikes Back Against Hamas Terrorin Gaza, ISR.
MINISTRY OF FOREIGN A (...truncated)