It's Not Too Late to Correct the ICC's Harm Regarding Israel and Palestine

On Monday, the International Criminal Court (ICC) took the highly unusual step of releasing a document explaining its Feb. 5 decision about the “Situation in Palestine.” Presumably the court did this because several countries, including the United States, have objected to its overreaching and underwhelming ruling. Far from clearing things up, however, the ICC missive just highlighted why its decision was so terrible.

The background is simple. Article 12(2)(a) of the Rome Statute, which governs the ICC, reads in relevant part that “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: (a) The State on the territory of which the conduct in question occurred… .”

Israel has not accepted the ICC’s jurisdiction, and so the only way the court could exercise jurisdiction in disputed areas of the West Bank and Gaza would be if the court considers Palestine to be a “state” and is willing to decide on its borders, i.e. which parts of the “territory” belong to that state.

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But the real problem was not even the tortured reasoning the court used to arrive at an interpretation of the law that is inconsistent with its explicit terms. The real problem was the set of three underlying assumptions that allowed this case to go forward.

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