Tuesday, January 13, 2015

Palestine ratifies the International Criminal Court’s Rome Statute: politicizing the court?

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

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