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16th January 2015

Palestine and the ICC: what's next?

Palestine and the ICC: what's next?


JURIST Guest Columnist Victor Kattan of the National University of Singapore Law Faculty, discusses the reasons for and consequences of Palestine's accession to the ICC and considers possible scenarios for developments around the Palestine question...


Israel's decision to delay transferring Palestinian customs and excise revenues to the Palestinian Authority (PA) in response to President Mahmoud Abbas's accession to the Rome Statute of the International Criminal Court [PDF] (ICC) was entirely predictable. After all, as recently as 2012 Israel halted such transfers after the UN General Assembly passed a resolution acknowledging Palestine as a non-member state. These customs revenues account for nearly two-thirds of the PA's budget, while the US Congress is said to be reconsidering $400 million in annual US aid to the PA.

Abbas' decision to join the court came in the wake of a failed attempt to persuade a majority of the UN Security Council members on December 30, 2014 to vote in favor of a draft Jordanian resolution. The Jordanian resolution called for an end to Israel's occupation of East Jerusalem, the West Bank and the Gaza Strip by 2017-50 years after Israel seized those territories in the June 1967 war-when the UN Security Council affirmed in Resolution 242 that the establishment of a lasting peace included the withdrawal of Israel armed forces from territories occupied in that conflict and the termination of all claims or states of belligerency. The draft Jordanian resolution failed to acquire the minimum nine votes to pass due to the negative votes of the US and Australia and five abstentions.

On January 1, 2015 Australia, South Korea and Rwanda completed their two-year terms and were replaced by Angola, Malaysia and Venezuela as rotating members of the Security Council. If the intention of Abbas was to force a US veto, he could have waited for the beginning of the new year when the composition of the Security Council changed and when he would have had a better chance of securing nine votes.

So why did Abbas apply to join the ICC when he did?

It is possible it was out of pique and frustration. After all he had threatened to join the court previously, and warned he would do so again in the event the US blocked the draft resolution. The US had called Abbas's bluff before, so he might have felt that his credibility and standing within his own political party was on the line. But it has also been suggested that Abbas pushed for the vote because he wanted to preserve his lines of communication with Washington by not forcing the US to veto the draft resolution. By insisting on a vote ahead of January 1 that Abbas knew would fail, Abbas would be able to present his maximalist position to placate his Palestinian critics as well as have a reason to accede to the Rome Statute.

Importantly Abbas not only acceded to the Rome Statute, but also lodged a declaration [PDF] directly with the Registrar of the ICC recognizing the jurisdiction of the court from June 13, 2014. This date was chosen in the resolution adopted by the UN Human Rights Council to establish a fact-finding mission to begin an inquiry into the origins of last summer's hostilities in Gaza. The fact-finding mission is due to present its report to the Human Rights Council in March 2015. This means that the mission will be able to take Palestine's accession into account while it compiles its report.

In addition to acceding to the Rome Statute on December 31, 2014, Abbas also signed accession instruments for another 16 treaties [PDF]. These are in addition to the treaties that Palestine acceded to in April 2014.

Because the UN Secretary General had already accepted treaties deposited by Palestine, it was not surprising that his office was quick to accept Palestine's application to join the ICC. On January 6, 2015 Ban Ki Moon, acting in his capacity as depositary, confirmed [PDF] that the Rome Statute will enter into force in Palestine on April 1, 2015. Of course the exact geographic scope of the territory of Palestine has yet to be determined. But Israel's status as the occupying power in the West Bank and the Gaza Strip, including East Jerusalem, was recently reaffirmed by the Conference of High Contracting Parties to the Fourth Geneva Convention [PDF] on December 17, 2014. Assuming that Palestine's territory consists of territory occupied in June 1967, the Rome Statute will enter into force in East Jerusalem, the West Bank and the Gaza Strip, 14 days after Israel's general election on March 17, 2015.

Accordingly from April 1, 2015 the Prosecutor of the ICC will be able to initiate a preliminary investigation into crimes that appear to fall within the jurisdiction of the court. This will undoubtedly include crimes that occurred during last summer's hostilities in Gaza. The Prosecutor may also open an investigation into Israel's settlement policy.

Whilst this means that Palestinians may also be subject to an ICC investigation, it is possible that the Prosecutor may conclude that the Hamas rocket attacks aimed at Israel during last summer's conflict that killed 4 Israeli civilians [PDF], whilst deplorable, will not be of sufficient gravity to justify further action by the court. (The others killed included 66 soldiers directly engaged in hostilities, one security coordinator, and a foreign Thai worker). This conclusion would be in line with the findings of the Prosecutor's preliminary examination [PDF] into the events that occurred on-board the M.V. Mavi Marmara when the Prosecutor concluded that the deaths of 10 Turkish nationals by Israeli commandos were not of sufficient gravity to justify further action by the court.

The Prosecutor will also have to take into consideration the extent to which Israel is investigating or prosecuting Israeli soldiers and officials implicated in crimes under the Rome Statute. If it appears that Israel is unwilling to carry out proper investigations, the Prosecutor may conclude that the case is admissible. It is unlikely that Israel will investigate or prosecute senior Israeli officials implicated in Israel's settlement policy for example. No senior Israeli official has been investigated or prosecuted for crimes that occurred in Gaza during the last two conflicts. Nor have senior Israeli officials ever been investigated or prosecuted for Israel's settlement policy.

Because Abbas acceded to the Rome Statute, he can always appeal the Prosecutor's decision in the event that she decides not to proceed.

Although Abbas has acceded to the Rome Statute, he will still need to ensure that at least one of the five permanent members of the Security Council will be willing to veto (or threaten to veto) any resolution that Washington might try to introduce in the Security Council in an attempt to defer an ICC investigation or prosecution. This could explain why Saeb Erekat, an executive member of the Palestine Liberation Organization, and close confidant of Abbas, met with Russian Foreign Minister Sergey Lavrov in Moscow in December 2014.

Looking ahead it is not clear what will happen next. For now Israel has already announced it will withhold the customs and excise it collects from the Palestinians. There are also myriad other ways Israel could retaliate.

Further, Abbas's decision might result in the loss of much needed Congressional funds for the PA. This is because on December 16, 2014, President Obama signed into law the Consolidated and Further Continuing Appropriations Act, 2015 [PDF] passed by Congress. Section 7041(j), A(i)(II) would prohibit the grant of American aid to the Palestinians if "the Palestinians initiate an International Criminal Court judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians."

The Palestinians have not, however, initiated an ICC judicially authorized investigation. Accession to the Rome Statute and the lodging of an ad hoc declaration directly with the Registrar do not automatically trigger investigations. Nor has Palestine made a 'self-referral'. Under the Rome Statute the Prosecutor can initiate an investigation into alleged crimes on her own initiative (proprio motu) without any input from the Palestinians.

It is not clear from the Consolidated Appropriations Act whether the word 'Palestinians' would cover the information provided to the Prosecutor by non-governmental organizations based in Palestine that could amount to support for such an investigation. Arguably it would not. The wording used in the bill would certainly not cover the information that will be provided to the Prosecutor by the UN Human Rights Council's fact-finding mission when it presents its report in March. Moreover, US Secretary of State John Kerry can always invoke his powers under the Act to waive the funding cut by certifying to the Committees on Appropriations that withdrawing American aid to the PA is not in the national security interest of the US, and submit a report detailing how the waiver and the continuation of assistance will assist in furthering Middle East peace. (Aid from the State Department's Bureau of International Narcotics and Law Enforcement Affairs pays for the training of and equipment for the presidential guard and the national security forces in the West Bank for example.)

The Consolidated Appropriations Act also provides for withholding aid to the Palestinians in the event that "the Palestinians obtain the same standing as member states or full membership as a state in the UN or any specialized agency thereof outside an agreement negotiated between Israel and the Palestinians." Long-standing Congressional legislation [PDF] also requires the US to withhold American funding for any UN specialized agency that admits Palestine as a member. Unlike the Consolidated Appropriations Act this legislation has no provision for waiver. This is why the US stopped funding the UNESCO after it admitted Palestine to membership in 2011.

Palestine will not be able to attain membership in the UN due to the US veto, and apart from UNESCO, Palestine has not recently applied for membership in any of the other specialized agencies. Congressional legislation requiring the US to withdraw funding to any specialized agency that admits Palestine is, in any case, a double-edged sword. This is because there are specialized agencies like the International Atomic Energy Agency and the WIPO that are important to the US, and which the US would be loath to have to withhold funding from in the event that Palestine becomes a member.

There is little doubt that President Abbas is pursuing a high-risk strategy and one that could have detrimental consequences for the PA. According to a State Department spokesperson "Neither the steps that the Palestinians have taken, nor the actions the UN Secretariat has taken in performing the Secretary-General's functions as depositary for the Rome Statute, warrant the conclusion that the Palestinians have established a "state," or have the legal competences necessary to fulfill the requirements of the Rome Statute."

It is of course up to the ICC, not the US, to determine whether Palestine has the legal competences necessary to fulfill the requirements of the Rome Statute. Nonetheless it could take time for the court to make this determination, and it is by no means a foregone conclusion that the court would decide that Palestine is a state with the legal competences necessary to fulfill the requirements of the Rome Statute. In the interim Abbas would be wise to use the time that he has to shore up his authority, update Palestine's legal and political system, strengthen Palestinian institutions, heal the divisions with Hamas, and locate alternative sources of funding, in addition to any further moves at the UN.

Ultimately, President Abbas still favors negotiations to end the conflict but only if they have a reasonable prospect of success. As Khaled Elgindy at the Brookings Institution argues, his strategy is "not designed to bypass or preclude negotiations but to give the Palestinians some badly-needed leverage in a future negotiations process-albeit one that is built on an entirely different framework and structure." But in the event that Prime Minister Benjamin Netanyahu is re-elected on March 17, Abbas may feel that he has no alternative but to present another draft resolution at the UN Security Council calling for an end to Israel's occupation. He may even threaten to join the specialized agencies if the US vetoes the resolution. Given Washington's intransigence, Abbas might also consider appealing to the International Court of Justice (ICJ) by seeking an advisory opinion on the legal consequences of a prolonged illegal occupation. An appeal to the ICJ could also help move things along at the ICC.

Victor Kattan is a postdoctoral fellow at the Law Faculty of the National University of Singapore, a policy advisor for Al-Shabaka: The Palestinian policy network and a former legal adviser with the Palestinian Negotiations Affairs Department.

Suggested citation: Victor Kattan, Palestine and the ICC: what's next?, JURIST - Academic Commentary, Jan. 14, 2015, http://jurist.org/academic/2015/01/Victor-Kattan-palestine-icc.php.

 




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