Palestine’s ratification of the Rome
Statute of the International Criminal Court is a significant event for the ICC
and for the future of the Palestine/Israel confrontation which has brought and
will bring different political reactions to the international and domestic
scenario.
What Abbas did after the UNSC failed
resolution
Two weeks ago, President of the
Palestinian Authority (PA), Mahmoud Abbas, took the first move toward joining
the ICC by signing the Rome Statute. This move directly followed the defeat of
a United Nations Security Council resolution that called for an end to Israel’s
occupation of Palestinian territory by 2017. It was quickly followed by the
PA’s becoming a State Party to the ICC by accession to the Statute. On 7
January 2015, the President of the Assembly of States Parties to the Rome
Statute ("the Assembly"), Minister Sidiki Kaba, welcomed the deposit
by the State of Palestine of the instruments of accession to the Rome Statute
of the International Criminal Court. The deposit was notified on 6 January 2015
by the Secretary-General of the United Nations acting in his capacity as
depositary. The deposit of the instruments of accession by the State of
Palestine, on 2 January 2015, brings to one hundred twenty-three (123) the
number of States Parties to the Rome Statute.
According to Article 126 of the Rome
Statute, now that Palestine’s ratification documents have been delivered to the
United Nations Secretary General and distributed to the Court’s 122 members,
there will be a 60 day waiting period before any member state including
Palestine can ask the Prosecutor to look into the Palestine situation.
Therefore, the ICC’s jurisdiction over grave crimes committed in Palestine will
take effect on 1 April 2015. Palestine also submitted a declaration to the
Court under Article 12.3 of the Rome Statute giving it jurisdiction over grave
crimes committed on its territory or by its nationals since 13 June 2014. By
such a declaration, States can choose to give the Court retroactive
jurisdiction over grave crimes committed before the date of accession, but not
before 1 July 2002, the treaty’s initial entry into force.
The possible scenario
The PA has become a State Party by
ratifying the Rome Statute of the ICC. Becoming a State Party to the Rome
Statute does not guarantee that there will be an ICC investigation into crimes
associated with the Israeli- Palestinian situation.
If
the ICC conducts an investigation into crimes related to the Palestinian-
Israeli conflict, there are several things to consider. Firstly, in order for
the Court to have jurisdiction over a crime, the crime must meet a very high
standard of seriousness, the so-called “gravity threshold”. Secondly, the
current ICC Prosecutor abides by a formal policy to prosecute crimes and assess
opposing parties of a situation concurrently, rather than sequentially. Put
simply, both Israel and Palestine would be subject to roughly simultaneous investigations.
Thirdly, should a national government with applicable jurisdiction demonstrate
a willingness and ability to conduct a thorough and unbiased investigation of
the crime in question, the Court must defer to that national government’s
criminal jurisdiction (under the Rome Statute’s doctrine of “complementarity”).
Therefore, even if Palestine brings a situation to the ICC, should Israel prove
its own justice system is capable of dealing crimes within that situation, the
ICC would cede jurisdiction to it.
In April 2012, the ICC Office of the
Prosecutor (OTP) rejected a special ad-hoc declaration (art.12.3 of the Rome
Statute), made by Palestine in 2009 accepting the Court’s jurisdiction over
acts committed on its territory since 1 July 2002. Such declarations are
reserved for states only. The OTP said that it was unable to proceed with a
preliminary examination into whether to open an investigation because it did
not have the competence to decide whether Palestine was a state under the Rome
Statute, leaving it to the competent UN bodies or eventually the Assembly of
States Parties—the ICC’s governing body—to resolve the legal issue relevant to
Palestine’s statehood for the purpose of the Court’s jurisdiction. In November
2012, by UN General Assembly Resolution67/19, Palestine’s status at the UN was
upgraded from observer entity to non-member observer state, allowing it to join
a number of international treaties. At the December 2014 session of the ICC’s
Assembly of States Parties, Palestine was for the first time invited to
participate with non-state party observer status.
Abbas’s move to join the Court and US law
As some observers argued, under American
law, any Palestinian case against Israel at the court would trigger an
immediate cutoff of U.S. financial support. However, ICC membership itself
doesn't automatically incur U.S. this action. The FY15 Consolidated
appropriations bill passed last month by Congress cuts off all aid to the
Palestinians if Palestine starts or supports an ICC’S authorized investigation
into Israeli nationals’ crimes against Palestinians. Therefore, this does not
mean that by ratifying the RS, the US law will sanction Palestine. Only if the
ICC investigates Israeli individuals after a referral made by Palestine, may
the US apply this legislation.
The impartial and cautious approach of
the OTP
It is very unlikely that the Prosecutor
will start a one side investigation against Israel only. There is no evidence
that Palestine has chosen to sign the Rome Statute because the ICC is likely to
be hostile and biased about Israel. Instead it is clear to most observers that
Palestine has turned to the ICC after concluding that all other international
avenues to dealing with the Israel settlements on the West Bank have been
blocked.
According a former OTP investigator, Alex
Whitining, in the event that the OTP will open preliminary examinations on both
Gaza last year crimes arising from the declaration pursuant to Article 12 (3)
and the settlements on the West Bank (widely considered a crime against
humanity), the Prosecutor will take a very cautious and slow approach. It is
also likely that the Prosecutor will start looking into crimes committed by
Palestinian extremists affiliated to Hamas. The ICC is not favorable to one
state or to another, it deals only with individual criminal responsibility and
its goal is to bring impartial justice and to put an end to impunity for the
most heinous crimes. Two arguments that the Court is politicized are now
increasingly made.
The first arises from the termination by
the Office of the Prosecutor (OTP) of the preliminary investigations of the
situation referred by the Union of Comoros regarding the 31 May 2010 Israeli
raid on the Humanitarian Aid Flotilla bound for [the] Gaza Strip. The
prosecutor, although concluding that there was a reasonable basis for the
incident to be considered a crime against humanity, decided that she could not
proceed into an investigation. She found that the Rome Statute's requirements
for the sufficient seriousness of a crime (the “gravity threshold”) of the RS
were not met because the scale of the incident and the number of victims were
not enough.
In her preliminary examination,
Prosecutor Bensouda applied the Statute without underestimating the relevance
of the incidents and its importance for the families of victims. This objective
application of the Statute was therefore with any bias toward either Israel or
Palestine. It is also claimed that the long explanation of why the settlements
might constitute an ICC crime in the 60 page report of the Prosecutor on the
Comoros submission shows bias against Israel. In fact, the Prosecutor wanted to
show that her decision to cease an investigation was not a judgment about the
legal nature of the settlements.
The second argument is based on the
preliminary examination by the OTP about alleged crimes against humanity and
war crimes committed by US military and international forces in Afghanistan,
particularly the alleged torture or ill treatment of detainees. When reading
carefully the PE report issued by the OTP in December 2014, what stands out is
the sources of information used by the Prosecutor. There is nothing in the
report that could confirm that the OTP is using an inaccurate or superficial
approach to the situation. Instead, the Office conducted a mission to Kabul to
start collaborating with Afghanistan civil society in a transparent and
impartial manner. This collaboration continues. Moreover, the report concluded
that the Court did not have jurisdiction over these alleged crimes. Here again
is evidence that Bensouda is not playing politics, but rather is taking a slow
and cautious approach to complex situations.
Congress’s possible reaction
As evidenced by statements made by the
State Department, the US has made it clear that it very strongly disapproves of
Palestine membership in the ICC. It has said that it does not accept that the
PA has become a state and that it believes that Palestine’s new status as an
ICC State party will seriously damage the negotiations between Israel and the
PA. Secretary of State John Kerry discussed the matter by telephone with
Israeli Prime Minister Benjamin Netanyahu. Other U.S. officials spoke with
Palestinian President Mahmoud Abbas, hoping to dissuade him from his course.
U.S.-brokered peace talks collapsed last spring and a 50-day war followed
between Israel and Palestinian militants in Gaza over the summer. Jennifer Rene
"Jen" Psaki, State Department spoke woman said that the
administration is reviewing its assistance to the Palestinians to ensure it
complies with U.S. law
At the same time, however, the U.S.
criticized Israel for withholding tens of millions in tax revenues to the
Palestinians, saying such a step "raises tensions." Taken together,
the statements reflected Washington trying to come to grips with a Palestinian
move it has spent years trying to avert a peace process that offers no hope for
an immediate breakthrough.
There is a risk that the Palestine’s
accession to the Rome Statute will result in political backlash in Washington,
(especially in Congress) against the US policy of constructive engagement with
the Court which has been growing since the end of President’s Bush second term
and in the Obama’s administration. However, some argue that this move may
likely fail as it will damage US relations with many countries important to
American international interests.
The PA is taking a twofold track.
On one hand, Abbas would like to see a possible solution regarding the
settlement question which would allow the resumption of negotiations with
Israel. Palestine has now succeeded in being recognized as a state by most of
the international community and thus seeks to negotiate as a state. Abbas is
also seeking justice for the persistent and continuous settlement of Israel of
the territory occupied by Palestinians. He wants the Court to find that this
could be a war crime or crime against humanity.
According to some experts, if American
and the Israelis will stop funding the Palestinian government, it will collapse
and extreme elements which are part of the coalition, like Hamas, could then
take power. According to international law experts, Palestine met
the criteria for statehood — permanent population, defined territory,
government, and recognition by other states — and that those would not be
nullified if the authority and the coalition disappeared and chaos ensued on
the ground. Therefore, Palestine’s statehood status would not be threatened.
Thus, even if the PA dissolves, another Palestine government would still be
free to move forward to establish that the settlement policy is a crime within
the Rome Statute.
Written for AMICC by Miriam Morfino