The front page headline in today's Times declares: Prosecutor looks at ways to put Israeli officers on trial for Gaza 'war crimes' (http://www.timesonline.co.uk/tol/news/world/middle_east/article5636069.ece). It seems based on an interview by the Times reporter with Prosecutor Luis Moreno-Ocampo in Davos, where he is attending the World Economic Summit. When I was in The Hague a week ago, I picked up rumours along the same lines, namely, that the Office of the Prosecutor was examining the situation in Gaza to see if prosecutions might be possible.
The International Criminal Court already has jurisdiction over crimes committed in Gaza by nationals of States parties to the Rome Statute. But who knows whether any possible suspects might qualify? 'Citizens' of Gaza and of Israel are certainly not covered in this way. But some might be dual nationals.
The Court can get jurisdiction over the territory of Gaza in three ways: 1. Security Council referral (art. 13(b)); accession to the Rome Statute by the State to which Gaza belongs (art. 126); a declaration accepting jurisdiction over Gaza by the State to which Gaza belongs (art. 12(3)). You can see the problem. To which State does Gaza belong? Security Council referral would seem improbable.
Palestine could make a declaration of accession. It would have to submit this to the Secretary-General of the United Nations, who is the depositary of the treaty. That would give the Court jurisdiction prospectively, assuming the Secretary-General accepted the accession. The Secretary-General would have to decide if Palestine was a State. But first, of course, Palestine would have to decide if it is a State.
Palestine could also make a declaration under article 12(3). It is in a way the more interesting solution, because the determination as to whether Palestine is a State would be made not by the Secretary-General but, initially, by the Prosecutor and then by the Pre-Trial Chamber. Perhaps they would adopt an expansive approach to statehood so as to facilitate jurisdiction rather than stymie it.
Finally, of course, Israel could ratify the Statute. That would give the Court jurisdiction over Israeli nationals. It wouldn't give the Court jurisdiction over Gaza. But it would probably give the Court jurisdiction over acts committed in Gaza that produced effects in Israel.
The Prosecutor has been rather reticent about proceeding in situations that are not of 'sufficient gravity'. He has generally based his assessment on the number of victims. That is an additional issue to be addressed if this idea is to advance.
Thanks to John Reynolds.