Doc's Talk: The International Criminal Court and Palestine: Part I

Friday, February 01, 2013

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 qualifies Palestine as a state, it is not clear [PDF] 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

This article was prepared for publication by Alex Ferraro, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

Doc's Talk