The International Criminal Court (ICC) appears ready to begin an investigation of alleged war crimes committed by Israeli soldiers against Arab civilian citizens of Gaza, the West Bank, and East Jerusalem. Fatou Bensouda, the ICC's Chief Prosecutor, announced on April 30 that she would proceed with the investigation if the ICC's pre-trial judges instruct her that she is on solid ground to launch the inquiry.
Even if the judges give Bensouda the go-ahead, it still appears that jurisdictional prohibitions exist, as enumerated in the Hague-based court's founding document. According to the ICC's charter, the Court cannot investigate the conduct of non-signatory states of the 1998 Rome Statute that established the Court. Israel, like the U.S., is not a signatory of the statute.
Bensouda, by accepting the Palestinian Authority (PA) as plaintiff, further violates the Rome Statute: the ICC is only permitted to investigate allegations brought by a sovereign state. There is no State of Palestine. There are no established boundaries of any possible future Palestinian state. There is no population of a sovereign state to act as a plaintiff, even though representatives of the PA have delivered a brief of charges against Israel and the Israel Defense Forces (IDF).
Bensouda on April 29 "reiterated her position that Palestine is a state for the purposes of transferring criminal jurisdiction over its territory to The Hague." She rests her claim to legitimacy on a judgment by the ICC's former Chief Prosecutor, Luis Moreno Ocampo. He counseled that if the Palestinian Authority could achieve recognition by the United Nations as a non-member state of its General Assembly (UNGA), then the ICC could consider Palestinian claims of human rights abuses by the IDF. The UNGA admitted "Palestine" as a non-member state in 2015, by passing Resolution 67/19.
Bensouda's decision appears to undercut the ICC's already damaged reputation that it is neither independent nor impartial. The ICC's budget is limited and increasingly hostage to the UNGA. The UN also appoints the ICC's panel of judges, an intrinsically political process, subject to bloc voting in the UNGA. The political paralysis of the ICC rendered the Court unable to adjudicate upon human rights abuses and genocide in several past crises: the war crimes of the Sudanese paramilitary forces beginning in 2003 in Darfur, Sudan, and the massacres inflicted on Syria's civilian population by the Syrian national army in that country's ongoing ten year civil war.
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