April 5, 2012 - NEW YORK - This week, the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, announced his decision not to pursue at this time a complaint filed by the Palestinian Authority (PA) against Israel.

At the very least, Moreno-Ocampo's determination signals the Prosecutor's willingness to defer the issue of Palestinian statehood vis-à-vis the Rome Statute to the United Nations. At most, it is an intermediate victory for the rule of law and against lawfare, the politicization and abuse of legal fora.

The Palestinian Authority complaint was, from the outset, an obvious attempt to manipulate ICC jurisdiction contrary to the principles enumerated in the Rome Statute, the governing document of the court.

Given that neither Israel nor Palestine is a party to the Rome Statute, that the Security Council has not referred the case to the ICC, and that no State party to the Rome Statute has likewise referred the case to the court - at least one of which is a prerequisite for ICC jurisdiction - the PA's claim has always fallen outside the court's enumerated powers. Despite this, Moreno-Ocampo expended court resources on this seemingly open-and-shut question since 2009. He solicited analysis from governments and organizations on whether the ICC can hear the case, and the court had reviewed over 388 submissions as of May 3, 2010, on a clear question. The ICC's summary of the submissions can be found here.

The Prosecutor's position underscores the limited authority of his office, which does not extend to determining whether a "State" exists for purposes of the Rome Statute or otherwise. Instead, Moreno-Ocampo has deferred the decision to either the Assembly of States Parties of the Rome Statute or the UN Secretary General who, he said, "in cases of doubt, will defer to the guidance of the General Assembly."

To date, neither the General Assembly nor the Assembly of States has recognized a Palestinian state. In fact, the General Assembly has specifically granted Palestine "Observer" status (as opposed to "Non-member State" or "Member State" status), clearly omitting any designation of statehood.

We have seen parallel moves by the PA to manipulate organs of the UN for political purposes. Palestinian officials have voiced plans to ask UNESCO (which erroneously voted last November to admit Palestine as a full member, a designation available only to "States" under UNESCO's own constitution) to designate historically Jewish holy sites as international heritage sites belonging to Palestine, not Israel.

Moreno-Ocampo's decision only stalls the latest attempt by the PA to claim benefits reserved for "States" without recognition as such by the General Assembly nor facts on the ground to support it. Yet the viability of this lawfare tactic remains to be determined since, as Moreno-Ocampo noted, the General Assembly could later decide the issue of statehood in favor of the Palestinians, providing a potential basis upon which the Prosecutor may assert the court's jurisdiction. However, even in such a case, whether Palestine is a "State" for the purposes of the Rome Statute could still be challenged before the court itself.

For more information, please contact:

Brooke Goldstein - This e-mail address is being protected from spambots. You need JavaScript enabled to view it - (212) 922-1672 ext. 302
Benjamin Ryberg - This e-mail address is being protected from spambots. You need JavaScript enabled to view it - (212) 922-1672 ext. 305