Basic facts and events so far
- On January 2, 2015 Palestine deposited its “instrument of accession” with the ICC pursuant to Article 12, recognising the court’s jurisdiction to investigate war crimes committed since June 13, 2014, in Gaza and the West Bank.
- Palestinian Accession becomes final on April 1, 2015. Nothing is going to happen before that date.
- Israel is not member to the ICC statute.
- The ICC’s chief prosecutor will open a “preliminary examination into the situation in Palestine.”
- A preliminary investigation is not a prosecution. Yet. It is in essence fact finding, to determine whether a prosecution is warranted or not.
- The preliminary investigation will investigate crimes committed by both sides, including Hamas.
- The chief prosecutor stated that jurisdiction could reach back to Nov. 29, 2012, the date that the U.N. General Assembly adopted Resolution 67/19
- If it comes to an investigation, since Palestinian war crimes are probably factually and legally among the easiest to prove, they actually may stand the greatest chance of ICC prosecution.
- The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when national courts are unwilling or unable to prosecute criminals.
- Israel arguably does have a working justice system. Palestine, and more particularly Hamas, arguably does not.
- States requesting ICC investigations are required to cooperate fully with any probes of their citizens. That will apply to Palestine. It will not apply for Israel, which is not a party to the ICC Statute.
- Israeli has initiated a number of investigations into alleged misconduct and promised more. While such investigation in Israel may end up being the usual whitewash*, this will make it more difficult for the ICC to establish its surrogate jurisdiction, since they will have to show that Israel is unwilling to prosecute**.