On April 3, 2012, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced that it was unable to continue its preliminary examination in the Occupied Palestinian Territories because it did not have authority to determine whether Palestine qualified as a “state.” The Rome Statute, the founding treaty of the ICC, requires such a classification before the Court may exercise jurisdiction. Instead, the OTP decided that only relevant UN bodies or the ICC Assembly of States Parties (ASP) had competence to make that determination. The Prosecutor’s decision raises a new legal question that the Rome Statute does not appear to answer: who has authority to determine whether Palestine qualifies as a state for the purposes of the Court’s jurisdiction?

The question of Palestinian statehood in the ICC context arose after January 22, 2009, when Palestine lodged a declaration accepting ICC jurisdiction under Article 12(3) of the Rome Statute. Specifically, Palestine sought an ICC investigation into alleged war crimes and crimes against humanity committed during Operation “Cast Lead,” the 2008-2009 Israeli offensive in the Gaza Strip. ICC jurisdiction requires that either a “State” (under Article 12) or the UN Security Council (under Article 13(b)) confer jurisdiction. Given that the UN Security Council has not referred the situation in Palestine to the ICC and Palestine has not become a State Party to the Rome Statute, the only way to obtain ICC jurisdiction is through an Article 12(3) ad hoc declaration. Article 12(3) provides for acceptance of ICC jurisdiction by a “State which is not Party to this Statute,” and the present debate revolves around whether Palestine qualifies as such a state.

In response to the OTP’s decision, some legal scholars and civil society organizations have argued that the OTP should have referred the question to ICC judges for a judicial determination rather than to the UN or ASP for a political decision. Advocates of the judicial approach point to Article 19(3) of the Rome Statute, which provides that “the Prosecutor may seek a ruling from the Court regarding a question of jurisdiction.” ICC jurisdiction could arguably be considered a question of fact that must be submitted to the judges for an impartial judicial decision.

Supporters of the judicial approach also fear that a political determination will indefinitely deny victims an opportunity for justice while political bodies attempt to resolve the complex issue of Palestinian statehood. Referring the decision to political bodies could be viewed as a delay tactic intended to avoid making a politically unpopular decision. There are also concerns that leaving this decision to political bodies will undermine the judicial independence of the Court. The Court’s limited jurisdiction already projects an impression of bias because all of its investigations are currently in Africa, and any political influence over the decision to open an investigation could exacerbate this problem.

On the other hand, some civil society organizations supported the OTP’s decision to refer the question to the UN or the ASP. Supporters of the political approach argue that UN bodies must recognize Palestine as a state before it qualifies as a state capable of accepting the jurisdiction of the ICC. By contrast, Israeli Foreign Ministry spokesman Yigal Palmor questioned the role of any international bodies, whether political or judicial, stating: “[i]f the [Palestinian Authority] has any grievance, the proper way to deal with it is to talk to Israel and try to sort this out directly. Resorting to the ICC or to the UN or to any far away institution . . . that’s just a waste of time.”

The OTP’s decision comes more than three years after Palestine accepted ICC jurisdiction. This delay has denied victims their day in court and made preservation and collection of evidence more difficult. As the ICC continues to develop and face new legal questions, it is important for the Court to resolve these issues in a way that maintains the independence of the Court and respects its goal to provide a forum where victims have access to justice in a timely manner.