Decision approaches for the ICC on Palestine

The prosecutor of the International Criminal Court, Fatou Bensouda, has now filed her response to the various submissions—including from several important ICC member states—addressing whether the ICC has jurisdiction to investigate alleged crimes in Palestine. In January, the prosecutor had requested that a panel of judges rule on the court’s jurisdiction, an unusual request that set in a motion hurried briefing by states, nongovernmental organizations, activists, and legal scholars. The countries that filed individual briefs included Australia, Brazil, Hungary, and Germany (all of whom opposed ICC jurisdiction).

Unsurprisingly, the prosecutor maintains her position that the court has jurisdiction to investigate a range of crimes allegedly committed on Palestinian territory, including by Israeli officials and soldiers. A final decision from the judges is expected in the next several months.

Together with the new investigation in Afghanistan, the Palestine inquiry creates a Rubicon-crossing moment for the court: in both situations, the prosecutor will be investigating the citizens of countries that have not joined the ICC or otherwise consented to its jurisdiction. (In Afghanistan, the non-consenting state is none other than the United States). The only other times the court has investigated non-member state nationals (in Sudan and Libya) have been when the UN Security Council used its coercive powers to refer the situation to the court.