One of my friends is taking the UN exam and she asked me a question which might pop up on the exam. It's about the recent vote in the General Assembly to upgrade Palestine's status to a non-member observer state. Her question was whether this would mean that the International Criminal Court could investigate and prosecute Israeli individuals for crimes committed in Palestine. I tried to answer as briefly as I could, but feel free to correct me. Furthermore, let's keep this professional, I'm not interested in opinions whether there were crimes or not, only the legal and technical aspects.
How I see:
Now, as a non-member observer state, the Palestine Liberation Organization (PLO), will have the capacity to apply for state membership in United Nations agencies, including the International Criminal Court (ICC). This is because membership is available to all states, not just full-fledged members of the United Nations.
First, Palestine has to apply for membership and accept the jurisdiction of the Court with respect to the crimes referred to in article 5 (see: article 12 of the Rome Statute).
The ICC can only have jurisdiction under 4 crimes (art.5 of the Rome Statute) and these are:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
Next, the PLO could refer the situation in Palestine to the Prosecutor of the ICC. This is because article 13 of the Rome Statute states that:
“The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party [...].”
Although Israel never signed or ratified the Rome Statute, the Prosecutor could still hold Israeli individuals accountable due to article 12 of the Rome Statute, which stipulates:
“In the case of article 13 [...] the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.”
As you see from the highlighted sentence, even if the conduct was perpetrated by a foreigner (but on Palestinian soil), the Court could still have jurisdiction.
As a consequence, my answer is that: yes, the Palestinians could ask the Prosecutor to initiate an investigation into possible crimes committed by Israeli forces. In such a scenario, Palestine first has to be accepted as a member of the ICC. Secondly, the above mentioned 4 crimes are very hard to prove.
An interesting thing is that Palestine could accept the ICC’s jurisdiction retroactively under article 11, paragraph 2 of the Rome Statute:
“If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.”
This would mean that the Prosecutor could investigate events from 1 July 2002 onwards, when the Rome Statute entered into force.