12th January 2015
The Journal of Palestine Studies publishes my article on the ICC
Since the summer 2014 Israeli assault on the Gaza Strip, the calls have grown louder for Palestine to ratify the Rome Statute and join the International Criminal Court (ICC). Palestinian factions across the political spectrum have indicated that they would support such a move. But in spite of gaining the status of an observer-state at the United Nations, Palestine has yet to join the ICC. While acceding to the Rome Statute and filing the application to the ICC is a relatively straightforward process, there are numerous risk factors involved. This article investigates a variety of possible scenarios and their likely outcomes, including the legal mechanisms necessary for acceding to the Rome Statute, and alternative measures that the Palestinian leadership might envisage.
OPERATION PROTECTIVE EDGE (July-August 2014) was the third and deadliest conflict in the Gaza Strip between Israel and Hamas after Operation Cast Lead (December 2008-January 2009) and Operation Pillar of Defense (November 2012). Collectively, these three conflicts have killed over thirty-five hundred Palestinians, including the elderly and more than one thousand women and children, a death toll that exceeds even the highest estimates for the 1982 Sabra and Shatila massacres in Lebanon.1 On the Israeli side, less than a score of civilians have been killed, in large part due to the effectiveness of Israel's U.S.-funded missile defense system-the Iron Dome-in shooting militant rockets out of the sky.2 Unlike Israel's previous confrontation with Hamas in 2012, when Hamas enjoyed warm relations with Egypt's then-President Mohamed Morsi, by the summer of 2014, Morsi was in prison and the Muslim Brotherhood was on the defensive. This drastic turn of events for Hamas provided Israel with a unique opportunity to crush the movement's military wing. With support from the United States, Israel set about this with devastating efficiency, decapitating the leadership of the Izzeddin al-Qassam Brigades, depleting its arsenal of rockets, and destroying its network of tunnels.3
The support given to Israel by the United States and its allies can be seen in the UN Security Council's inaction. The council did not pass a single resolution during the conflict, choosing to issue a nonbinding presidential statement "expressing grave concern" instead.4 It should be remembered that Article 34 of the Charter of the United Nations stipulates that the council should ensure "prompt and effective action by the United Nations" because of its primary responsibility for the maintenance of international peace and security. The reasons behind U.S. support for Israel in the Security Council need no explanation, but even China, a traditional ally of the Palestinians, only expressed its "deep concern," without taking sides.5 Chinese criticisms of Israel may have been muted due to a spate of attacks from insurgents in Xinjiang, China's restive Muslim province.6 Russia was also careful in its criticisms, perhaps because it was busy propping up the Assad regime and defending its affairs in the Ukraine.7 Meanwhile, Britain and France-the only members of the UN Security Council that are also members of the International Criminal Court (ICC)-sided with Israel when the conflict began.8
In light of the dire humanitarian situation in the Gaza Strip, many Palestinians have called on President Abbas to ignore the pressures on him from the United States and Europe and ratify the Rome Statute.9 A flood of calls on Abbas to join the ICC had also followed Israel's previous attacks on the Gaza Strip, with a lengthy debate taking place in the British parliament in November 2012 when members of the opposition castigated the British foreign secretary for pressuring the Palestinians not to join the court.10 In August 2014, Baroness Warsi, a British cabinet minister, resigned in disgust at her government's pressure on the Palestinians to keep away from the ICC.11 Such public support for the Palestinians and criticism of Israel in Europe stand in stark contrast to the United States, where congressional and public support for Israel remains strong.12
At the time of writing, President Abbas had not yet indicated when and whether he would take steps to join the ICC. Although Fatah, Hamas, and other Palestinian groups have said they would support Palestine's application to join the ICC,13 there are many reasons why involving the court in the Israel-Palestine conflict could be risky, and why careful consideration must be given to the legal and political ramifications at stake. Procedurally, Palestine's application to join the ICC should be a straightforward process, depending on whether the Palestinian leadership chooses to accede to the Rome Statute or to submit an Article 12(3) declaration, either separately or concurrently in an attempt to backdate the accession. As will be shown below, backdating Palestine's application to give its ratification retroactive effect would be throwing caution to the wind and would be seen as opportunistic at this point in time. Politically, any attempt to involve the ICC in the Israel-Palestine conflict will be opposed by Israel, the Obama administration, and the U.S. Congress.14
The Israel-Palestine Conflict and the International Criminal Court
The ICC was established by the Rome Statute, which was concluded in 1998 at the height of the new liberal imperialism espoused by President Clinton and Britain's Prime Minister Tony Blair.15 It was set up to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community. This was epitomized by the arrest and detention of Chile's General Pinochet in the United Kingdom and by the NATO intervention in Kosovo in the following year, both of which were justified on human rights grounds.16 The court is housed in The Hague where it has been operating since 2002. As with all international institutions, the ICC is dependent on its members for approving its budget and for judicial cooperation, which is critical when it comes to enforcing the law. When the Rome Statute was opened for signature in 1998, Israel and the United States both signed the treaty, but did not ratify it. Israel was opposed to a clause in the Rome Statute that criminalizes the transfer, directly or indirectly, by an occupying power of parts of its own civilian population into the territory it occupies, while the United States was concerned that the court could prosecute members of its armed forces engaged in overseas conflicts.17 Israel and the United States remain opposed to the treaty for these reasons today.
To date, President Abbas's decision not to accede to the Rome Statute may appear puzzling to many Palestinians and their supporters because Palestine has had the power to sign, ratify, and accede to treaties, and to apply to join UN agencies since it became a member of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in October 2011.18 This was accompanied by Palestine's accession to eight UNESCO conventions.19 In the following year, the UN General Assembly (UNGA) conferred on Palestine the status of an observer state.20 Yet in spite of this, President Abbas delayed acceding to any further conventions, waiting for the results of the Israeli elections in January 2013, and a visit from President Obama in April 2013. Following President Obama's visit, the Palestinians agreed to enter into new negotiations with the incoming Israeli government on condition that Israel ceased building settlements and released Palestinian prisoners.21 Out of goodwill, President Abbas agreed not to accede to any more treaties so long as the negotiations were in progress.
The peace talks collapsed in April 2014 after Israel refused to stop expanding settlements and to release the final batch of pre-Oslo prisoners, despite an agreement to this effect,22 and Abbas responded by making good on his pledge to accede to fifteen treaties, mainly on human rights and humanitarian law.23 These treaties have since been accepted by the depositaries, which only reinforces the view that Palestine has the ability to accede to the Rome Statute should it choose to.24 Only Israel, the United States, and Canada have explicitly challenged Palestine's ability to accede to these treaties on the grounds that Palestine is not a state, lodging statements of protest to that effect with their depositaries.25 The fact that no other states have objected would suggest that they are either ambivalent about Palestine's ability to accede to treaties or that they believe that Palestine's new status at the UN entitles it to accede to such treaties.
The UNGA's decision to accord observer-state status to Palestine on 29 November 2012 was significant because by declaring Palestine a state, the UNGA was indicating to the UN secretarygeneral, who acts as the depositary for many multilateral treaties, that he should accept the depositing by Palestine of treaties that apply the "all-states formula"-like the Rome Statute. Membership in UNESCO was similarly significant because Palestine was thereby enabled to accede to treaties that follow the "Vienna formula," which gives UN member states, as well as parties to the Statute of the International Court of Justice, and states that are members of UN specialized agencies, the powers to sign, ratify, and accede to treaties-even if the latter are not UN member states.26 Membership in UN specialized agencies is not contingent on UN Security Council approval.27
The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood. As the International Court of Justice's predecessor, the Permanent Court of International Justice, observed in the case of S.S. Wimbledon, "the right of entering into international engagements is an attribute of state sovereignty."28 The reason why President Abbas returned to the UN in November 2012 was because the prosecutor of the ICC had refused to accept a declaration that had been deposited with his office in 2009, in the aftermath of the first confrontation between Israel and Hamas during Operation Cast Lead.29 The then-prosecutor, Luis Moreno-Ocampo, explained that the 2009 declaration had not been validly lodged because it was deposited by the (minister of justice of the) Palestinian Authority (PA), which did not represent a state, and he explained that the ICC was not the appropriate body to determine whether Palestine was a state. Instead, Moreno-Ocampo suggested that Ban Ki-moon, the UN secretary-general, seek the advice of the UNGA to make this determination.30 The secretary-general did not follow Moreno-Ocampo's advice, but President Abbas did, and the UNGA obliged by according Palestine observer-state status on 29 November 2012. 31
Despite Palestine's new UN status, the ICC will not get involved in the situation in Palestine unless President Abbas or another senior Palestinian official takes steps to join the ICC. As if to reinforce this point, and in response to claims in the Guardian newspaper that the ICC had avoided opening an investigation into alleged war crimes in Gaza due to political pressure, Fatou Bensouda, Moreno-Ocampo's successor as prosecutor, insisted in an editorial in the same newspaper that the decision to accede to the Rome Statute was for the Palestinian political leadership alone to make. "I cannot make it for them," she wrote.32 Bensouda was echoing a report that her office had produced in 2013 in which it explained that it had studied the UN resolution that conferred observer-state status on Palestine in November 2012 and that it was waiting for President Abbas to either lodge an instrument of accession or submit a new Article 12(3) declaration.33 The Office of the Prosecutor (OTP) made it clear that it would not examine the situation in Palestine unless President Abbas either signed an instrument of accession or submitted a similarly-worded declaration to the ad hoc Article 12(3) declaration that had been submitted in 2009-albeit signed by President Abbas or his foreign minister on behalf of "the State of Palestine" rather than on behalf of the "Palestinian National Authority." President Abbas would have to give careful consideration to the question of whether Palestine should accede to the Statute or, alternatively, submit a new Article 12(3) declaration because these two actions have very different consequences, as explained in the next section. Although the OTP's Report on Preliminary Examination Activities for 2013 does not mention it, Palestine could accede to the Rome Statute and concurrently submit an Article 12(3) declaration. It could also submit an Article 12(3) declaration even after acceding to the Statute.34
Why President Abbas Has Not Rushed to Join the ICC
There are many reasons why President Abbas has not rushed to sign the instrument of accession for the Rome Statute or submitted a new Article 12(3) declaration. The financial health of his authority is precarious, dependent as it is on the continued flow of aid from the United States and the European Union (EU) for funding the PA's security forces, the justice sector, and various development projects. In addition, the United States is the largest single donor to the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA), which is responsible for the continued welfare of millions of Palestinian refugees35 and a substantial donor to the United Nations Development Program (UNDP). The PA also depends on the timely transfer of the value-added tax (VAT) that Israel collects on behalf of the authority to meet its budgetary obligations-especially its large public payroll, including to civil servants in the Gaza Strip-which Israel has withheld on previous occasions. It is unclear how Palestine could continue to pay its debts to banks and financial institutions, or attract future foreign investment to kick-start its private sector, without the promise of future aid. Or for that matter, pay its dues to the ICC or any UN specialized agencies it may join. Gaza is in ruins and its reconstruction could prove exorbitant.
It is also not clear to what extent ICC membership would assist, rather than hinder, Abbas's primary goal to establish an independent Palestinian state in the West Bank and Gaza Strip, which requires negotiations with Israel. Palestine does not have a constitution; its Basic Law has not been enforced; there have been no presidential or parliamentary elections for eight years; and the legislature has not functioned since 2007. The territory of the State of Palestine remains occupied by Israel, now for the forty-seventh year, affecting the president's safety and security as well as the ability of his ministers to work and travel since they are dependent on VIP permits that can be revoked by Israel at any moment. The West Bank remains under Israeli control like the Gaza Strip, but, unlike the Strip, it has been partitioned into three zones that are surrounded by Israeli settlements and bypass roads.36 Although the division of the West Bank into three sectors was the result of an agreement reached between Israel and the PLO in 1995, it is arguably contrary to the Palestinian people's right of self-determination and to the territorial integrity of the Palestinian observer state that was accorded recognition by the UNGA in November 2012.37 In addition to all of the above, there also remain substantial gaps between the Palestinians and Israel as to the eventual shape that an independent Palestinian state will take. There also remain differences between Fatah and Hamas. No one knows how long the latest national unity agreement will hold. Benjamin Netanyahu's Likud coalition government remains bullish; his popularity soared during Operation Protective Edge and briefly during Operation Pillar of Defense; and despite some grumblings, the Obama administration does not seem to have the wherewithal to take on Congress or pressure the Israeli government to desist from creating more facts on the ground through the expansion of existing settlements in and around Jerusalem, and elsewhere in the West Bank. In any event, President Abbas will be loath to lose Palestine's newly acquired ability to accede to the Rome Statute as it is a useful strategic device, which has given him leverage in negotiations with Israel and the United States, because once Palestine joins the ICC, Abbas will also lose whatever little leverage he had. For the time being, he is happy to use the ICC as a bargaining chip in negotiations with Israel, which Palestine can then threaten to join whenever the Palestinians feel under political pressure.
Undoubtedly, joining the ICC would be a popular move for Abbas and his beleaguered authority among the Palestinian people, but ICC membership will not ipso facto lead to the circulation of international arrest warrants among member states for Prime Minister Netanyahu, other members of his cabinet, or the chief of staff of the Israel Defense Forces (IDF). There are several hurdles that Palestine would have to overcome before the ICC could even initiate an investigation. First and foremost, the ICC would need to be satisfied that it has jurisdiction. Due to the peculiar state of affairs in Palestine that has arisen as a result of the nature and length of Israel's prolonged occupation, and the series of interlocking agreements that were concluded between Israel and the PLO during the Oslo years, the ICC will find it no simple matter to ascertain whether it has jurisdiction.38
Thus, to take one example, the 1995 Israel-PLO Interim Agreement on the West Bank and the Gaza Strip, including its Annex IV on legal affairs, authorizes Israel to exercise various investigative functions on Palestinian territory.39 The extent to which this agreement is still binding or would take preference over Palestine's other international obligations is something that would be argued in court. But absent Palestine denouncing this agreement, one would expect Israel to raise it as an argument in court to the effect that the ICC should dismiss a Palestinian application for lacking jurisdiction on the grounds that Palestine is not really a state or, if it is a state, that it lacks powers to implement the Rome Statute, since this would be in breach of the Interim Agreement that vests criminal jurisdiction over Israelis in Palestinian territory to Israel.40 Now that Palestine is a High Contracting Party to the Geneva Conventions of 1949, it could be argued that the exclusion of Israelis from PA jurisdiction should not extend to genocide, war crimes, and crimes against humanity, as this would be incompatible with international law. It is also doubtful whether the Interim Agreement continues to apply to the Gaza Strip. Hamas is not a signatory to that agreement, and Israel's 2004 revised disengagement plan that was unilaterally implemented in 2005 was itself in breach of the Interim Agreement.41
How Palestine Can Accede to the Rome Statute
There are various options open to President Abbas with respect to joining the ICC. He could submit a similarly-worded declaration to the ad hoc declaration that the PA's minister of justice lodged with the ICC's Registry in 2009 under Article 12(3), albeit on "State of Palestine" rather than "Palestinian National Authority" letterhead. Alternatively, he could choose to simply accede to the Rome Statute by submitting an instrument of accession to the UN secretary-general, who acts as the depositary for instruments of accession to the Rome Statute, but without also submitting an ad hoc declaration. Or President Abbas could submit an instrument of accession to the UN secretary-general concurrently with a new ad hoc declaration under Article 12(3). Or he could submit an instrument of accession to the UN secretary-general and an ad hoc declaration under Article 12(3) at a later date.
If President Abbas intends to submit an ad hoc declaration under Article 12(3), he may want to consider backdating it to 29 November 2012, the date when the UNGA conferred observer-state status on Palestine; or to 31 October 2011, when Palestine became a member of UNESCO; or to 23 September 2011, when Palestine applied for membership to the UN. Of course, the United States, Israel, and many members of the EU would oppose any such attempt. The United Kingdom and Italy explicitly warned President Abbas at the UNGA on 29 November 2012 not to do this.42
In light of this opposition, President Abbas would find it easier to accede to the Rome Statute without also submitting an ad hoc declaration under Article 12(3) because it would be forwardlooking: The ICC would only have jurisdiction on the first day of the month after the sixtieth day following the deposit by Palestine of its instrument of accession with the UN secretary-general. This would mean that Israel and Hamas would not face any charges unless they committed genocide, war crimes, or crimes against humanity after the instrument of accession takes effect. This would also mean that the ICC would not be able to examine crimes that took place during the recent conflict in the Gaza Strip unless Israeli soldiers and Hamas fighters potentially implicated in war crimes have dual nationality. In this case, the ICC would only have jurisdiction if the accused were also nationals of a state party to the Rome Statute and if the courts of the state party concerned had started investigations but were unwilling or unable to prosecute.
The advantage of accession over submitting another ad hoc declaration under Article 12(3) without accession is that Palestine would be entitled to seek judicial review should the prosecutor exercise her discretion not to proceed with an investigation. The problem with ad hoc declarations is that the prosecutor is not obligated to open an investigation. She could just sit on the case. It should not be forgotten that it took Moreno-Ocampo almost three years to announce that his office was not the appropriate body to decide whether Palestine was a state. Accession to the Rome Statute would allow Abbas to request that the prosecutor initiate an investigation with respect to a crime that appeared to have been committed in the event that she did not do so on her own initiative.
Although the ICC is an independent legal institution, the support of the international community is crucial to its success. It must maintain good relations with its members to ensure their cooperation, as the ICC cannot enforce international criminal law on its own. The OTP also depends on member states to assist the prosecutor with carrying out her duties. In this respect, the views of the members of the UN Security Council cannot be ignored either, even if they are not members of the court, because the Security Council has the power to prevent the prosecutor and the court from opening an investigation and exercising jurisdiction by passing a Chapter VII resolution at twelve-month intervals.43 This provision was inserted into the Rome Statute to placate the interests of the "great powers"-the five member states of the Security Council with veto powers. Although this resolution was met with sharp criticism when it was introduced and was regarded as interference with the future court's independence, it is a factor that President Abbas will have to take into account.
This is because it could be argued before the Security Council that the demands of justice are outweighed by the demands for peace, and that involving the ICC at a critical juncture of the Israel-Palestine dispute diminishes the prospects for peace. This will be Israel's argument, although the Palestinians could point to twenty years of fruitless negotiations. For all these reasons, President Abbas would be wise to take into account the views of his friends and allies when he decides the time is right to join the ICC, if only to ensure that the Security Council does not intervene. While the council cannot prevent Palestine from becoming a party to the ICC, it can prevent the prosecutor and the court from proceeding with an investigation even when the ICC has jurisdiction. Therefore, President Abbas will need to ensure that at least one of the five permanent members of the Security Council is willing to veto (or threatens to veto) any resolution that might try to defer an investigation or prosecution in the event that such a resolution were introduced in the Security Council.
The obstacles that face President Abbas with respect to joining the ICC should not prevent him from approaching the other court in The Hague, namely the International Court of Justice (ICJ). At present, congressional legislation does not apply to the ICJ where Palestine has a good track record. In 2004, the ICJ ruled in a near unanimous decision that Israel's separation wall and its settlement regime are contrary to international law.44 President Abbas could seek support from the UNGA to approach the ICJ by requesting a new advisory opinion inquiring into the legal consequences of a prolonged occupation in light of the UNGA resolution that accorded Palestine observer-state status in November 2012. The new UNGA initiative could make reference to the Palestinian people's right of self-determination, relevant UN resolutions, and mention the treaties that Palestine recently acceded to either in its preamble or inside the text of the resolution. The treaties would aid the court in making its determination regarding the current status of Palestine, as well as whether Israel's continued occupation is unlawful, and if so, whether this would require a full withdrawal to the 1949 cease-fire lines. Work has already been done by a group of international lawyers on this issue, and such a strategy would be less complicated and costly than going straight to the ICC at this moment in time.45
The ICC is a new institution that is still in its early experimental phase. It has not yet developed a rich body of case law that it can rely on, and it has never had to address the complex legal and political issues that would come before it were Palestine to join the court. In this regard, concerns have been expressed that the court may not be robust enough to withstand the political pressures that would inevitably follow a Palestinian application to join the ICC. The last five years in which President Abbas and other members of his government have fulminated about joining the ICC-"threatening" Israel with war crimes charges in the press and on television-have given Israel a lot of time to anticipate a Palestinian application and prepare with war crimes charges of its own. The last five years have also given Israel time to mount a legal defense by taking steps to give the appearance that the army and justice system are independently and impartially investigating the conduct of IDF soldiers accused of crimes to ward off potential prosecutions at the court.46 We can also expect that Israel will produce a slick media campaign to delegitimize the ICC in which it will attempt to shift the Arab-Israeli conflict to The Hague to make the ICC look like a circus.
While some Palestinians may fear being subject to war crimes charges, they could avoid this by not seeking to apply the Rome Statute retroactively. Acceding to the Rome Statute without attempting to apply it retroactively would also avoid lengthy and complex legal arguments as to when the State of Palestine came into being. Were the ICC to initiate an investigation this could be the first time in the history of the long-running Israel-Palestine conflict that an international tribunal with teeth, that is not under the control or influence of either side, would be able to address serious human rights violations and violations of the laws of war that are becoming all too common in the Middle East.
However, in light of the potential pitfalls that could arise with regard to joining the ICC (aid cuts, Israeli retaliation, diplomatic fallout, stalling by the UN Security Council, limitations imposed by Oslo) President Abbas could, alternatively, seek support from the UNGA to request a new ICJ advisory opinion on the legal consequences of a prolonged occupation also in light of the UNGA resolution that accorded Palestine observer-state status in November 2012, taking into account the Palestinian people's right of self-determination, relevant UN resolutions, and the treaties Palestine acceded to in April 2014. One of the main advantages of the ICJ is that unlike the ICC, it cannot take into consideration treaties that have not been registered with the UN secretary-general.47 This would mean that Israel would not be able to raise any of the provisions of the 1995 Israel-PLO Interim Agreement (that was not registered) including its legal annex that prevents the PA, the Palestinian police, and Palestinian courts from exercising criminal jurisdiction over Israelis in Areas A and B in the West Bank, not to mention Areas C, or East Jerusalem, and the Gaza Strip. Were the ICJ to rule that the occupation is unlawful, that Israel is required to withdraw its armed forces to the 1949 cease-fire lines, and that Palestine is a state, this would create a lot of momentum for further recognition, particularly from those states in Europe that remain on the fence. A decision from the principal judicial organ of the United Nations on Palestine's statehood could also assist any moves Palestine might make with respect to the ICC at a more propitious moment.
You can read the article on the JPS website here.
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“This is an elegant and forceful narrative by a young Palestinian scholar.”
— Boutros Boutros-Ghali, Former Secretary-General of the United Nations (1992-1997)
Read more advance praise for From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949