Jan 30, 2013 | Updated May 2, 2013
Although media is going berzerk in blind following of all who are shouting: “Take Israel to the ICC!” Palestine already did. Which not has been a success due to “legal technical problems” at that time.
There’s more. These “legal technicalities” which prohibit persecution of Israeli violations on Palestine’s humans and their rights is way more complicated than it seems.
For now, don’t set any hopes high there is not much going on at the ICC at all. Neither it will. And so Israel keeps relentlessly going on, violating all rights for as long as those in charge of the ICC: The United Nations make this change.
While Israel is violating literally every right possible, transgressing it’s obligations as an occupied as stated in the Fourth Geneva Convention, The Hague Convention, Occupation Law, The Rights of the Child, Minimum requirements of treatment of detained, the Universal declaration of Human Rights, and add all you like to the list. It is being transgressed without any sanction by this world’s judicial powers at all.
The simple fact is: Courts do not always speak what is righteous, they speak justice.
Justice defined in man made (f)laws and (escape) rules as written and defended by the great powers which installed them (mainly protecting their interests which not automatically complies with the higher moral of protecting interests of all human life)
And while media and political analysts keep shouting “Take Israel to the ICC” and the zionist lobby keeps suppressing any of those speaking out, it would be a great thing all of you reading keep creating awareness about the violations rather than who should sue and where for only global awareness – in the end- will force those in charge to change their racist stance.
Human Rights, should be valid for all humans. Including Palestinians!
In this topic we will update all related and relative news regarding the Palestine and the ICC issue.
Related news will be continuously updated below the article of JURIST
The International Criminal Court and Palestine: Part I
JURIST Guest Columnist Linda M. Keller of Thomas Jefferson School of Law explores the potential impacts for the International Criminal Court of new Palestinian status at the UN in part one of this two-part series …
The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) is reportedly considering how the new status of Palestine at the UN impacts the ICC. The UN General Assembly recently granted non-member observer state status to Palestine. The most immediate issue is whether the General Assembly resolution will change the OTP’s previous decision refusing to go forward with a preliminary examination of international crimes in Palestine. Although Palestine filed a declaration accepting ICC jurisdiction, the OTP decided that Palestine’s status as a “state” was too uncertain for the declaration to be effective. The General Assembly vote might change that determination. Moreover, the OTP and others at the Court are likely considering how the resolution might affect potential ratification of the ICC statute by Palestine.Some media reports assume that the resolution means Palestine will join the ICC and imply that a case against Israel for military action or settlements will be soon forthcoming. The reality is far more complicated because:
- Palestinian officials may not take any further action to prompt the OTP to reconsider its prior refusal;
- The new prosecutor might not follow the prior prosecutor’s reasoning, which underlies the presumption that the resolution resolves the statehood issue before the ICC;
- The Palestinian declaration accepting ICC jurisdiction over Palestine, made prior to the General Assembly resolution, might not be valid;
- A potential new Palestinian declaration might not cover acts prior to the resolution, particularly as far back as originally envisioned;
- If a declaration is effective, an investigation might still not go forward based on:
(a) A lack of a state or Security Council referral or request by the OTP to open an investigation;
(b) The principle of complementarity (in that Israeli investigation or prosecution might render the case inadmissible);
(c) Lack of gravity of the alleged crimes;
(d) The exercise of prosecutorial discretion, finding that investigation or prosecution is not in the interests of justice.
- If an investigation does go forward, there are issues regarding temporal and territorial scope;
- If Palestine decides to ratify the statute rather than rely on a declaration accepting jurisdiction, the process would take significant time and similar issues would arise.
Part I of this article explores these first four points, while Part II will examine the remaining issues.If the ICC attains jurisdiction over Palestinian territory, such jurisdiction would not be limited to Israeli crimes. Palestinian actions would also be considered as potential international crimes, which may complicate both Palestinian decisions to move forward at the ICC and the prosecutor’s tasks in evaluating potential crimes.
Palestinian officials initially indicated the possibility of pursuing the declaration long-term. However, after Israel’s announcement of further settlement expansion in the highly controversial E1 area in the West Bank — a potential war crime — Palestinian officials might well turn to the ICC sooner than planned.
On the other hand, Christian Wenewaser, former president of the ICC Assembly of States Parties, has speculated that Palestinian statements about the ICC are more likely political tactics than realistic threats of immediate action. He notes that the ICC would also be tasked with investigating Palestinians firing rockets into Israel, which might discourage further Palestinian action. This seems especially pertinent given the apparent ongoing efforts at reconciliation between Fatah and Hamas. Nonetheless, Palestinian officials may reopen the OTP’s preliminary examination of international crimes in Palestine, if only to strengthen their hand against continued Israeli settlement activity (a strategy known as “lawfare”). It is not clear whether Palestine might try to reactivate the prior declaration, enter a new one or ratify the treaty.
The implications of the General Assembly resolution depend on the complex ICC system. The ICC is a treaty-based body established via the Rome Statute to prevent and punish genocide, crimes of humanity and war crimes (as well as aggression, should aggression amendments be adopted). The ICC is not a court of universal jurisdiction, but generally has jurisdiction over crimes committed on the territory of state parties or by their nationals. (One exception relates to a UN Security Council referral, which grants ICC jurisdiction over a non-state party such as Sudan; obtaining custody over the accused is another matter.) Israel is not a party to the Rome Statute. Given the US veto in the Security Council, it will not be referred to the ICC. As a result, the ICC has no jurisdiction over crimes committed on the territory of Israel or by its nationals in Israel. Palestine is not a party to the Rome Statute either. However, the government of Palestine attempted to trigger jurisdiction over acts on the territory of Palestine using another avenue.
Under Article 12, “a State which is not a Party to this Statute” may lodge a declaration that accepts the jurisdiction of the ICC “with respect to the crime in question.” The government of Palestine lodged such a declaration [PDF] on January 22, 2009, accepting jurisdiction for “acts committed on the territory of Palestine since 1 July 2002.” The declaration responded to Israel’s Operation Cast Lead, Israeli military action in Gaza subsequently deemed to be war crimes and crimes against humanity in the Goldstone Report, though not without controversy.
Under Article 11, the ICC has jurisdiction over crimes committed after the entry into force of the statute for that state, unless the state has filed a declaration under Article 12(3). The interplay of these two articles is disputed as it relates to a potential ratification of the statute by Palestine, as will be discussed in Part 2. But it apears a non-state party can accept jurisdiction prior to the date of the declaration.
The prosecutor considered the Palestinian declaration for over three years. On April 3, 2012, the OTP issued an update on the situation in Palestine. It noted that jurisdiction under Article 12 is a precondition to any examination of other conditions for jurisdiction or any analysis of alleged crimes. It noted that Article 12 refers to a “State” filing a declaration to accept jurisdiction. Rather than determining whether Palestine qualifies as a “State” under the terms of the Rome Statute, the OTP concluded that it lacked the authority to do so. It noted that it is the UN secretary-general who decides whether to accept the accession of a “State” ratifying the statute. The secretary-general typically follows or seeks the advice of the General Assembly in reaching such a determination.
Although the reasoning for deferring to the secretary-general has been criticized, the OTP concluded that the secretary-general — with the guidance of the General Assembly — has the competence to decide disputes over the status of the “State” of Palestine with regard to Article 12(3). The OTP also noted that the ICC Assembly of States Parties might take up the issue [PDF].
The OTP then examined the UN status of Palestine, presumably as a proxy for the secretary-general’s putative determination of statehood. At the time, Palestine had “observer” status at the General Assembly and Palestine’s application for admission as a member state had not yet been acted upon. The OTP concluded: “The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.”
On December 4, 2012, the General Assembly apparently made such a decision: it upgraded Palestine to “non-member observer State” status. However, some states voting for the resolution “underscored that statehood could only be achieved through dialogue between the parties, implying that Palestine had not yet achieved statehood.” Nevertheless, the resolution might satisfy the condition set by the OTP. But the OTP is now led by a new prosecutor, Fatou Bensouda, who may disavow her predecessor’s prior position.
Bensouda could conclude the prior determination improperly deferred to the secretary-general of the UN. She could decide that the determination belongs to the Assembly of States Parties, which could derail or delay further action. Yet, if Bensouda decides that the ICC should decide, she may proceed with the preliminary examination.
Assuming that the resolution [PDF] qualifies Palestine as a state, it is not clear how the Palestinian declaration should be treated. If Palestine was not a state until November 29, 2012, could it have properly submitted a declaration accepting jurisdiction in 2009? Could that declaration properly extend the court’s jurisdiction all the way back to July 2002 well before the resolution? Could a new declaration cure the problem or is it impossible for a state to consent to jurisdiction prior to its statehood? Perhaps any Palestinian declaration would be effective only with regard to crimes allegedly committed after the resolution satisfying the OTP’s statehood concern.
On the other hand, perhaps Bensouda will set an earlier date for effective statehood. Many states recognized Palestine as a state years ago. Further, on October 31, 2011, UNESCO admitted Palestine as a member state, which would likely suffice in terms of treaty ratification, the apparent test previously used by the OTP. Thus, there is much uncertainty related to the declaration itself.
Part II will explore the issues that arise even if the declaration is considered valid.
Linda M. Keller is an Associate Professor at the Thomas Jefferson School of Law in San Diego, California. She served as a Visiting Professional at the International Criminal Court during the 2011-2012 academic year and is an expert on international criminal law and human rights.
Suggested citation: Linda M. Keller, The International Criminal Court and Palestine: Part I, JURIST – Forum, Jan. 29, 2013, http://jurist.org/forum/2013/01/linda-keller-palestine-icc-part1.php
The International Criminal Court and Palestine: Part II
JURIST Guest Columnist Linda M. Keller of Thomas Jefferson School of Law explores the potential impacts for the International Criminal Court of new Palestinian status at the UN in part two of this two-part series …
As discussed in Part 1, the General Assembly resolution granting Palestine “non-member observer State” status raises difficult issues for the International Criminal Court (ICC). Any determination that a Palestinian declaration is valid is only the starting point. If we presume that the old declaration is effective or if a new declaration were filed, the first stage of preliminary examination would be passed, but other obstacles remain. The Office of the Prosecutor’s (OTP) earlier examination of the declaration cited Articles 13 and 53 of the Rome Statute. Article 13 refers to a state party or UN Security Council referral, or the opening of an investigation by the OTP with the approval of the Pre-Trial Chamber. If no state party were willing to provide a referral, then the prosecutor would need to trigger the investigation herself, perhaps leaving the statehood question to the Pre-Trial Chamber that must approve such a request. According to David Luban, the ICC would likely pass the statehood decision to the Assembly of States Parties, where investigation would end because of reluctance to accept Palestinian statehood as it relates to the Rome Statute. Yet there is no guarantee that the prosecutor would seek to open an investigation or that another State would refer the situation in Palestine in the first instance — a hurdle often overlooked.Assuming that a preliminary examination goes forward, the OTP must also consider Article 53, which relates to prosecutorial discretion. The OTP must consider whether there is a reasonable basis that an ICC crime has occurred, whether a case would be admissible and whether the interest of justice would be served. Similar criteria apply to the determination of a basis for prosecution. These provisions are quite controversial.
First, the OTP must delve into whether the facts support a finding that a crime has occurred. The Goldstone Report indicated that crimes against humanity and war crimes likely occurred during Operation Cast Lead but apparently even Justice Goldstone has reconsidered that conclusion in light of additional information. Moreover, an outside finding does not guarantee the OTP could obtain evidence to support a finding of a reasonable basis for crimes, particularly if Israel does not cooperate. At the least, this endeavor would likely take substantial time.
Next, the prosecutor may determine that a case is inadmissible under Article 17 of the Rome Statute on any of several grounds. A case is inadmissible if it is being investigated or prosecuted or has been investigated with a determination that prosecution is not warranted by a state with jurisdiction, unless the state is unwilling or unable genuinely to investigate or prosecute. A case is also inadmissible if the person concerned has already been tried for similar conduct. Finally, the case is inadmissible if it is not of sufficient gravity.
Regarding Article 17, the OTP would examine whether the state (such as Israel) can effectively block prosecution at the ICC under the principle of complementarity: the ICC is not able to assert jurisdiction if a state with jurisdiction is genuinely able or willing to investigate, prosecute or decide not to prosecute. Finally, the OTP would have to examine the gravity issue, a concept that has led to criticism in the past, such as regarding the refusal to launch an investigation into crimes in Iraq. The cyclical and reciprocal nature of much of the violence between Israel and Palestine might further complicate the analysis of the gravity issue.
Furthermore, Article 53 allows the OTP to decline to investigate or prosecute if it would not be in the “interests of justice” — an undefined and controversial concept. Given the highly fraught, political nature of any investigation into Israeli (or Palestinian) crimes, and the emphasis on resolving issues such as boundaries via negotiation, the OTP may decline to go forward under Article 53.
If an investigation does go forward, other issues arise. As noted in Part 1, retroactive jurisdiction is an issue in terms of the scope of the investigation. In addition, there may be interpretative difficulty with the terms of the declaration, which refers to “the territory of Palestine.” What exactly is the territory of Palestine? While it would most likely include Gaza and the West Bank, jurisdiction over disputed areas is controversial. Moreover, David Luban has posited that the territory of Palestine might not include Gaza, because of its “separate and antagonistic government.” On the other hand, the resolution refers to pre-1967 borders, which might help provide some guidance for the ICC, despite criticism that the resolution is “contradictory and vague” on this matter.
It should also not be forgotten that the crimes in question are not necessarily limited to those committed by Israelis. The Palestinian declaration refers to “crimes committed on the territory of Palestine,” which would include war crimes committed by Palestinians, such as the deliberate targeting of civilians. Some commentators have noted that Hamas attacks on civilians might be easier to establish than Israel’s war crimes, though such claims are disputed, particularly in the context of Israeli settlements.
For example, Jennifer Trahan and Belinda Cooper note that “prosecutions of future Hamas crimes might proceed more easily than similar prosecutions of Israeli crimes.” Likewise, it can be argued that Israel has a better chance of blocking the case based on the aforementioned principle of complementarity. Israel has a track record of conducting at least some investigations into war crimes allegations and might undertake more if an ICC investigation seems probable. There seem to be few, if any, investigations>/a> of Hamas rocket fire into Israel. Thus, any OTP reconsideration of the declaration is itself a complex process that might not lead to an investigation or prosecution of Israelis or Palestinians. Furthermore, if an investigation or prosecution is considered a threat to international peace and security, the UN Security Council can ask the ICC to suspend investigation or prosecution under Article 16, though this seems unlikely given the power of veto-bearing members to block such a move.
Many media reports also refer to Palestine joining the ICC. If Palestine were to decide to become a state party to the Rome Statute, there might be issues with regard to statehood. Yet it seems more likely that the UN secretary-general would follow the lead of the General Assembly and the UN Educational, Scientific and Cultural Organization (UNESCO) in considering Palestine a state for the purposes of treaty ratification. If Palestine becomes a party to the Rome Statute, it could refer the situation in Palestine to the ICC — as could any state party. The jurisdiction of the ICC would cover not only crimes committed in the territory of Palestine, but any crimes committed by Palestinians worldwide. As noted above, the territory of Palestine might be controversial, but jurisdiction based on nationality should be less so, assuming the statehood of Palestine. In addition, there is uncertainty over the potential retroactivity of jurisdiction to certain dates prior to the General Assembly resolution. It is generally agreed, however, that any ICC investigation would likely encompass allegations of both Israeli and Palestinian crimes.
As Trahan and Cooper point out, Palestine as a state party would have a duty to cooperate with investigations and implement arrest warrants, while Israel would not have such a legal obligation. Palestine may come to regret a decision to join the ICC, particularly if it is asked to effectuate arrest warrants against Hamas militants.
In the end, the prosecutor might take the decision out of the hands of Palestinian officials by reconsidering the prior OTP decision in light of the General Assembly resolution and seeking to open an investigation. It seems more likely, however, that the prosecutor will not be eager to dive into the fraught political controversy between the Israelis and Palestinians. In particular, commentators have pointed out that the settlement issue is one that should be decided politically, rather than by the ICC, as “even the Palestinians concede that some settlements will be on the Israeli side of a future boundary.”
Many commentators have warned Palestine of the dangers of pursuing its declaration or joining the ICC. Moreover, the Palestinians are facing continued pressure from states not to go to the ICC. The US Senate, for example, is reportedly considering legislation that would eliminate aid and close diplomatic offices of the Palestinians if the Palestinians push for ICC action. In light of these pressures it is possible that Ambassador Christian Wenewaser is correct in interpreting the Palestinian statements as tactical position rather than an immediate action plan.
Even if Palestine does go forward with a new declaration aimed at Israeli settlements, that is only the first step. There are many potential obstacles that may delay or derail any ICC investigation or prosecution into alleged crimes on the territory of Palestine. Anyone anticipating the General Assembly vote to trigger swift action, or a clear resolution to issues of Palestine and the ICC, is likely to be disappointed.
Linda M. Keller is Associate Professor at the Thomas Jefferson School of Law in San Diego, California. She served as a Visiting Professional at the International Criminal Court during the 2011-2012 academic year and is an expert on international criminal law and human rights.
Suggested citation: Linda M. Keller, The International Criminal Court and Palestine: Part II, JURIST – Forum, Feb. 5, 2013, http://jurist.org/forum/2013/02/linda-keller-palestine-icc-part2.php
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