JUSTICE - No. 65

7 Fall 2020 The Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, a trial is not permitted under Article 20, paragraph 3 [no double jeopardy unless prior trial was to shield the person from individual criminal responsibility for crimes or otherwise not independently or impartially conducted in accordance with due process norms recognized by international law]; (d) The case is not of sufficient gravity to justify further action by the Court. 18 These provisions also provide no guarantee. At a minimum, a state must make an investigation, and the ICC decides if that investigation was adequate and conducted in good faith. The complexity of the ICC jurisdictional provisions provides ample opportunity for the Court to decide if it does or does not have jurisdiction. In the event of objections to the exercise of jurisdiction, the Court may have to decide whether the ICC prosecutor exceeded discretion, and further, whether the state of the accused nationality has the capacity to conduct investigations and prosecutions in the area of genocide, crimes against humanity, war crimes, and aggression, investigated and prosecuted (or not) in good faith, and generally conducted in a way such that the ICC has no complementary role. Jurisdictional decisions may give rise to more than purely technical questions. The United States and Israel face investigations and potential ICC jurisdiction for individuals’ conduct. In the case of Israel, individuals may face criminal charges for what has been the state’s national policy since June 1967 with respect to construction of towns (settlements) in “territories occupied in the recent conflict.” 19 There is hardly space here to revisit the origins and course of the June 1967 war, much less the efforts to achieve Arab-Israeli peace since 1948. 20 It is sufficient for our purposes to recall that on June 4, 1967, Israel did not wake up and decide to occupy the Sinai Peninsula, the Golan Heights, the Gaza Strip, and the West Bank of the Jordan River. These territories fell under Israeli control as a result of a war of self-defense. 21 The international community expected peace to be concluded and adjustments to the 1949 Armistice Lines to be made in Israel’s favor in order to fulfill the UN Security Council requirement of “acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.” 22 The Security Council reiterated these points when in 2002, it “Affirm[ed] a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized borders.” 23 Among the issues before the ICC is whether that vision has been realized for purposes of a positive response to the Palestinian Authority’s request that the ICC take jurisdiction over alleged Israeli war crimes. So far, the ICC is proceeding as if the Palestinian Authority is a state able to lodge a declaration submitting to ICC jurisdiction and that Israeli individuals, nationals of a state that is not a party to the Rome Statute, have been operating in the territory of a state that has accepted ICC jurisdiction. Palestinian statehood and territory are among the most important, undecided questions to be determined by agreement between Israel and the Palestinian Authority. If the ICC concludes that it has jurisdiction over Israeli actions, then the ICC would find itself embroiled in one of today’s longest running and most difficult conflicts. The consequences are not 19. UNSC Res. 242, Nov. 22, 1967, UN Doc. S/RES/242. 20. A good place to begin would be Michael Oren, S IX D AYS OF W AR (Oxford: Oxford University Press, 2002), and Dennis Ross, T HE M ISSING P EACE : T HE I NSIDE S TORY OF THE F IGHT FOR M IDDLE E AST P EACE (N.Y: Farrar, Straus & Giroux, 2004). 21. Substantial literature exists, not only on the conduct of military operations, but also on whether Israel acted in self-defense. 22. Supra note 21, S/RES/242. 23. Res. 1397, March 12, 2002, S/RES/1397. 24. See Legal Consequences of the Construction of a Wall in