Palestine and the International Criminal Court
Author: Mahmoud Abdou
Originally Published at Peace and Conflict Monitor on: 10/08/2013
The International Criminal Court is established and governed by the Rome Statute, which was adopted on July 17, 1998 and entered into force on July 1, 2002 after the 60th ratification. The Court operates within the broader institutional and political order that has been evolving since the creation of the United Nations, towards the enforcement of global peace and security, and the guarding of human rights and international humanitarian law. Its establishment has been awaited by the international community ever since the Nuremberg and Tokyo trials and the coming into force of the Genocide Convention, as an institution that is capable of prosecuting and adjudicating individuals who are responsible for the most serious crimes of concern to the international community: genocide, crimes against humanity, war crimes, and the crime of aggression. At the same time, the overall effectiveness of this court and the legal certainty that it provides remains a debatable issue, as the case of Palestine has highlighted that the “politics” of international criminal justice often determine the effectiveness of the rule of law.
This paper will attempt to show how the approach of the Prosecutor of the ICC to dealing with the question of the accession of Palestine to the Rome Statue negated the function and purpose of the Rome Statue itself. Instead of approving the Palestinian Authority’s declaration of accepting the Court’s jurisdiction over crimes committed in Palestine since July 1, 2002, and prosecuting those responsible about what the Goldstone Report of the UN Fact Finding Mission of Gaza Strip (2009) has described as war crimes and “possibly even” crimes against humanity, the ICC prosecutor decided to completely ignore a situation of nearly 1400 deaths, mostly from civilians. The case should have given the ICC the opportunity to show independence and seriousness with regards to the enforcement of its Statute, which aims at preventing impunity; however, letting linger the Goldstone Report and its recommendations, as well as those of the Human Rights Council and the General Assembly was very influenced by “great power politics,” and led to the obstruction of justice.
I will start by elaborating on the Palestinian declaration to join the ICC, which will be followed by a short analysis of how the Prosecutor’s response to it was equivalent to picking a side in a politically contested issue – Palestinian statehood. Subsequently, some of the political pressures that were applied on the ICC and the Palestinian Authority alike will be briefly highlighted, and then the need for a functional approach to the interpretation of the Rome State with regards to Palestine will be explained. Finally, new developments following the Prosecutor’s decision will be pointed out, with the aim of establishing how the end result of the Prosecutor’s decision was that of burying the Goldstone Report in history.
The Palestinian Attempt to Join the Rome Statute and the Prosecutor’s Response
In January, 2009 following Israel’s “Operation Cast Lead” in Gaza Strip, the Palestinian Minister of Justice Ali Khashan submitted a declaration to the office of the Prosecutor of the Court stating that “In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002” (Qtd in Kearney & Reynolds, p. 15). The crimes that were committed in Gaza during that operation were so severe that the Goldstone Report decried them as war crimes and possibly even crimes against humanity. At the same time, even though such crimes fall within the Court’s ratione materiae jurisdiction, the Office of the Prosecutor of the ICC issued a statement on April 3, 2012 declining to exercise jurisdiction in Palestine.
Given the uncertainties surrounding the issue of Palestinian statehood, the Office of the Prosecutor decided not to accept the Palestinian declaration. Article 12(3), on which the Palestinian declaration was based, underlines that “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.” However, the Prosecutor held that it “was not the role of the Court, but rather the role of the UN General Assembly, to determine who was or was not a state,” and therefore the declaration was rejected (Whitbeck, 2013).
The Prosecutor simply ignored the fact that as a result of its UNESCO membership in November 2011, Palestine was able to ratify the Statute based on the “‘Summary of the Practice of the Secretary-General as Depositary of Multilateral Treaties,” document, which considers ‘all states’ to be entities who are members of a UN specialized agency” (Azarov, 2012). This is not to forget that based on many accounts, whether in accordance with the constitutive theory or the declaratory theory of statehood, Palestine is considered a state. It is recognized as such by more than 130 countries and it meets the Montevideo criteria for statehood: it is capable of engaging in international relations and is a member of a number of international organizations such as UNESCO; it has a functioning government that is evaluated by the IMF and the World Bank as capable of administering its own state; it has a defined population; and its borders are recognized by the international community and through a number of UNSC and UNGA resolutions to be the 1967 borders of Gaza Strip, East Jerusalem and the West Bank. The Prosecutor’s decision not to consider Palestine a state for the purposes of the Rome Statute, and this is exactly the end result of the Prosecutor’s decision, clearly supported the views of i.e. the U.S. instead of affirming the rule of law.
How Politics Obstructed Justice
In reaction to the Goldstone Report, U.S. Senators Kristen Gillibrand and Johnny Isakson sent a letter to then-U.S. Secretary of State Hillary Clinton, signed by 29 other senators “urging the U.S. to ‘work very hard to block any punitive actions against Israel that this report mentions” (McArthur, 2009, p.28-29). A resolution introduced at the U.S. House of Representatives also “call[ed] upon the [U.S.] President and Secretary of State to oppose unequivocally any endorsement or further consideration of the Report…in multilateral fora” (McArthur, 2010, p.18-19,22). In the words of U.S. ambassador to the UN Susan Rice, the recommendations of the Goldstone Report were considered by the US as “basically unacceptable” (Zunes, 2009). In fact, while meeting with the President of the ICC in 2009, Rice “issued a thinly veiled warning that any investigations into alleged crimes in Gaza could harm the Court’s standing with the US, just as the Obama administration was beginning to foster a relationship with it” (Kearney & Reynolds, p.27).
By refusing to accept the Palestinian declaration, the Prosecutor endorsed instead the political pressures that the Palestinian government itself also came under. On October 1, 2010 the Human Rights Council deferred the discussion of the Goldstone Report until March 2011, at the request of the Palestinian Authority, which was acting in accordance with overwhelming diplomatic pressure by the U.S. (Zunes, 2009). However, the resulting uproar in the Arab world made the PA backtrack and a few days later it requested the convening of a special session at the Human Rights Council for voting on the Report, which endorsed it and submitted it for discussion at the General Assembly.
In effect, the Prosecutor ignored the endorsement of the Goldstone report by the Human Rights Council and the General Assembly, and even the recommendations of the Report to the Prosecutor himself. The Report stipulated that “With reference to the declaration under article 12 (3) received by the Office of the Prosecutor of the ICC from the Government of Palestine, the Mission considers that accountability for victims and the interests of peace and justice in the region requires that the legal determination should be made by the Prosecutor as expeditiously as possible” (Qtd in Kearney & Reynolds, p.9). Given the unconditional support that Israel receives from the U.S. at the UNSC, a referral to the Prosecutor by the SC was out of the possible scenarios for the opening of a case regarding Palestine. And since Palestine was prevented from accepting the jurisdictions of the Court, by the Prosecutor, it is unlikely that the Prosecutor would have initiated an investigation, in accordance with the authorities given to it by the Statute, with regards to i.e. the Goldstone report.
A Functional Approach
Pellet, Kearney, and Reynolds argue that the Prosecutor should have applied a functional approach in its interpretation of the Statute and of Art. 12 (3) in particular. The purpose of the Statue is to prevent impunity and to prosecute those responsible about the most serious crimes of concern to the international community, and the Palestinian declaration should have been considered in light of this function. Not only do the crimes described in the Goldstone Report fall within the ratione materiae jurisdiction of the Court, but the PA’s recognition of the Court’s jurisdiction for actions posterior to July 1, 2012 also recognized the ratione temporis jurisdiction of the Court. Additionally, the Palestinian declaration to the Prosecutor gave Ratione Loci jurisdiction to the Court “for the purpose of identifying, prosecuting and judging the authors and accomplices of [crimes] committed on the territory of Palestine.”
As Pellet puts it, by making the Palestinian declaration “ineffective, the Court would give its blessing to the constitution of a zone of impunity in the territories occupied by Israel, which is contrary to the intentions of the authors of the Rome Statute, and to its very purpose and object, since, in this case, no state could grant the Court jurisdiction within those territories” (Pellet, p. 995). The Gaza Strip and the West Bank are officially recognized by the international community as occupied territories, which was explicitly stated by the ICJ in its Advisory Opinion on the Construction of the Wall (2004). Israel does not even claim that it is exercising territorial sovereignty over those territories and in a report to the Committee on Economic and Social Rights dated October 19, 2001, highlights Pellet, “Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction’ (i.e. the West Bank and Gaza)” (Pellet, p. 992).
Furthermore, the UNSC and GA have in many occasions “recalled the enforceability, in all occupied territories, of the law of war occupation, and in particular of the Fourth Geneva Convention, as the ICJ recalled in its Wall Advisory Opinion of 2004” (Pellet, p.994). In those territories, judicial jurisdiction (including criminal), were transferred to the Palestinian Authority after it’s signing of the Oslo accords with Israel (Pellet, p. 994). Therefore, only the PA is capable of granting the Court Judicial jurisdiction in those territories, and rejecting the Palestinian attempt to do so certainly goes against the purpose and function of the Rome Statue.
That said, the upgrade of the status of Palestine at the UN in November, 2012 from an observer to a non-member “state” has given it the capacity to not only join the Statute of the ICC, but to also sign and ratify other international treaties and conventions. In an interview with The Palestine Chronicle, the Prosecutor of the ICC Fatou Bensouda stated that as the UN General Assembly “had made its determination that Palestine is a state, ‘the ball is now in the court of Palestine,’ ‘Palestine has to come back’ and ‘we are waiting for them’” (Whitbeck, 2013). At the same time, the PA seems to be holding off such a move due to mounting diplomatic pressure by the U.S. and the UK to restart the negotiations with Israel. U.S. Secretary of State John Kerry is now attempting to outline the common grounds for future negotiations between the Israelis and the Palestinians, such as agreeing on land swipes so that Israel keeps the major settlement blocks in the West Bank.
However, on the issue of retroactivity or the Court’s ratione temporis jurisdiction in case if Palestine joins the Statute, Bensouda “did not think that any retroactivity could extend back to the birth of the court in 2002 at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status” (Whitbeck, 2013). So, as Whitbeck argues, “if the ICC would have jurisdiction only over FUTURE war crimes – which should, at least to some degree, discourage the commission of NEW war crimes – who (other than Israel) could argue against Palestinian membership with a straight face?”
The approach of the Prosecutor to Palestine’s first attempt to join the Statute is one that was governed greatly by the politics of international criminal justice, rather than by the substance and the actual function of the Rome Statute itself. The case of Palestine has showed that international criminal justice is greatly affected by the power politics of i.e. the US, and the ICC’s existence has in some ways even obstructed justice in this case. It prevented any considerations for the establishment of an independent tribunal based on the Goldstone Report, which has now been buried in history. Of course, the establishment of such an independent tribunal, similarly to how the ICTY and the ICTR were established, would have needed at a minimum a resolution from the SC, but that is exactly why the politics of international criminal justice determine the effectiveness of the rule of law.
The ICC should have implemented a functional approach to the Question of Palestine, one that would have set a precedent that the Court is truly independent and is capable of enforcing its Statute. Instead, the ICC’s approach to the first Palestinian attempt to join the Rome Statute gave impunity to those responsible about what the Goldstone Report has described as war crimes and crimes against humanity in the Palestinian Territories. Not only has this case affected the legal certainty that the ICC is meant to provide with regards to preventing impunity, but it has also affected the credibility of the Court in the very first stages of its existence. Technicalities with regards to the exact date of when Palestine has officially become recognized as a state should not have stood in the way of justice.
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Bio: Mahmoud Abdou was born in Gaza Strip, Palestine. He received his BA degree in Political Science from Middlebury College in Vermont, USA, his first MA degree in American Studies from Heidelberg University in Germany, and his second MA in International Law and the Settlement of Disputes from the UN University for Peace in Costa Rica. He recently published his first book “The Middle East Peace Process and U.S. Special Interest Groups” via the German publishing house AV Akademikerverlag, which will soon be available at libraries and book stores world-wide.