The Prosecutor of the ICC does not have jurisdictional authority to initiate an investigation into the alleged crimes committed in the 2008-2009 Gaza Conflict. In order to systematically analyze the issue it is important to address the jurisdictional dilemma faced by the Prosecutor and address the far reaching consequences of initiating an investigation.

Under Article 12(3) of the Statute of Rome, “the acceptance of a State which is not a Party to the Statute is required for the ICC to have jurisdiction over a crime….” Jurisdictional authority cannot be obtained directly from Israel as it is not a party to the Statute of Rome, nor has it voluntarily conferred jurisdiction on the ICC. Other potential avenues for the ICC to obtain jurisdiction is if the accused is a national of a state which has accepted the jurisdiction of the ICC or if the U.N. Security council refers the situation to the prosecutor. The former option would be administratively taxing as the Prosecutor would have to delve into the nationalities of the accused and determine whether the requirement is met for each individual. Moreover, Professor Ronen suggests that a U.N Security Council referral would not be feasible because the U.S. would likely veto any attempt to pass a resolution. Consequently, this leaves us with the question of Palestinian statehood.

Although Professor Quigley asserts that Palestine is a state, Palestine continues to demand the establishment of a sovereign and independent state. The Agreement on the Gaza Strip and the Jericho area signed by Palestine Liberation Organization indicates that statehood remains a goal. Moreover, the Montevideo Convention of 1933 sets forth four prerequisites to statehood which include 1) permanent population, 2) defined territory, 3) government, and 4) capacity to enter relations with other states. Palestine fails to meet the latter pair. Palestine does not have effective control over the West Bank, which weakens its claim of government. Palestine’s ability to enter into relations with other states is severely limited by the Oslo Accords. Under these terms, Palestine is not a state, and cannot confer jurisdiction on the ICC to investigate the alleged crimes committed during the Gaza Conflict.

If the ICC were to commence a unilateral investigation of the alleged crimes committed during the Gaza Conflict, there may be serious political ramifications. Initiating a unilateral investigation may undermine the efforts of the Court. Because the decisions made by the ICC do not occur in a vacuum, one must consider the consequences to the international political ambit. Although the ICC may resist the politicization of the issue, the likely scenario may be that it would fuel deeper resentments in the region and thwart the peace talks. Since we are on the eve of new peace talks between the Israeli Prime Minister Netanyahu and Palestinian Authority President Abbas, the ICC should remain at the margin. Israel and Palestine may bilaterally agree to open their own investigations about the alleged crimes committed during the Gaza Conflict, and thus the ICC’s role would be non-extant.