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Palestine’s Two Cards: A Commitment to Legality and an Invitation to Stop Crimes

Two steps recently taken by Palestine could be a game changer for a seemingly intractable problem. I will argue that these decisions should not be construed as an assault on Israel. They deserve a thorough and sober analysis grasping the significant difference between the 1st of January move accepting the jurisdiction of the International Criminal Court (ICC) for events in the past, and the ratification of the following day making Palestine a state party of the Rome Statute, providing jurisdiction for the future. Palestine’s complex move is basically a commitment and an invitation to end the commission of any new crime. I fully understand Israel’s concerns but it is crucial to understand that this move is creating an opportunity to use the Rome Statute to increase Israel’s security.

The dual mechanism currently used by Palestine creates a scenario without precedent. In 2009, Palestine accepted the ICC’s jurisdiction by lodging an ad hoc declaration under Article 12(3) of the Rome Statute, and the first question to analyze was its “statehood.” At the time, the UN considered Palestine as an “observer” not as a “State.” Palestine requested, and I provided as the ICC Prosecutor, an ample opportunity to present its arguments. Other parties were also involved in the process. The Arab League created an international fact-finding commission to investigate the allegations and made submissions supporting the Palestinian request. The Office of the Prosecutor invited Israel to provide arguments, organized two public meetings to discuss the matter, and received 11 legal submissions by a variety of experts, academics and NGOs. In July 2011, Palestine confirmed to the Office that it had submitted its principal arguments. In April 2012, after a fair and extensive process I concluded that Palestine could not be recognized as a “state” as requested under Art 12(3) of the Rome Statute. I decided that in accordance with the Rome Statute the competence for determining if an entity has the status of a “State” rests, in the first instance, with the UN Secretary General—who in accordance with UN practice will defer to the guidance of UN General Assembly—and on the Assembly of States Parties of the Rome Statute (Article 112(2)(g)).

This situation changed in November 2012 when the UN General Assembly decided—138 votes in favor to 9 against—to accord to Palestine a “State” status in the United Nations. The new ICC Prosecutor Fatou Bensouda thus expressed that “Palestine could now join the Rome Statute.” 

After Palestine’s ratification, on the 6th of January 2015, the UN Secretary General acting as the “depositary” and following the UN General Assembly’s decision accepted Palestine as a state that ratified the Statute. The following day, the President of the Assembly of States Parties to the Rome Statute, the Senegalese Minister, Sidiki Kaba, reached a similar conclusion and welcomed the deposit by the State of Palestine of the instruments of accession to the Rome Statute.

At Just Security, Professor David Luban and Professor Robert Howse consider that the Palestinian “statehood” is still debatable. Professor Luban rightly stated that the ICC judges have never ruled on the matter. Professor Howse emphasized that the Assembly of States Parties to the Rome Statute could decide to involve the International Court of Justice in the legal debate. It is conceivable to foresee some legal arguments and venues to keep challenging Palestine’s statehood but their success is highly unlikely.

Israel does not accept that Palestine is a “state” and it has the right to uphold such a position, but Israel should also take a realistic approach and be prepared to take advantage of a new scenario regulated by the Rome Statute. I will present legal options that have the potential of protecting the interest of both sides.

In summary, Palestine’s acceptance of the ICC’s jurisdiction since June 2014 is a very limited request that, if properly answered, could be managed by Palestine and Israel to review the most recent incidents. More importantly, Palestine’s fully joining the Rome Statute as a state party is a commitment to legality and an invitation to stop and prevent the commission of future crimes by any party. Palestine’s move could be an opportunity to increase Israel’s security that should be seized. I will present four points below, but I would like to invite Just Security contributors to focus also on creative options to help all the parties.

First, it should be highlighted that Palestine reduced drastically its request to investigate the past. In 2009, Palestine attempted to accept the ICC’s jurisdiction dating back to July 1, 2002, and it is now reducing the scope of the Court intervention to just the incidents that happened since June 13, 2014. Palestine is not insisting to investigate what happened during 12 years and is instead limiting the temporal scope of the potential investigations to the last 6 months.

Second, Israel has the ability to avoid the opening of an ICC investigation. As a court of last resort the ICC can intervene only when there are no genuine national investigations of the crimes under its jurisdiction. Taking advantage of the principle of complementarity Israel can conduct national investigations of the alleged crimes committed after June 13, 2014 and make the situation inadmissible.

Third, the Rome Statute framework provides Israel ample opportunities to present before the ICC judges information about the alleged crimes committed after June 2014 and the existence of genuine investigations without recognizing Palestine statehood. In order to open an investigation under Art 12(3) the Prosecutor has to request authorization of the Pre-Trial Chamber. Before this happens, the Office of the Prosecutor conducts a “preliminary examination” (Art 15), which is an internal process during which the Office collects information to determine whether the situation meets all the criteria required for jurisdiction (type of crimes, territorial or personal jurisdiction, admissibility and the interests of justice). During this process Israel could present its arguments to the Office of the Prosecutor (Art 18). It could maintain its position about Palestinian “statehood” and can also argue that the Oslo agreements exclude Israelis from Palestinian jurisdiction and as a consequence from the ICC’s authority. Furthermore, victims could also present those arguments to the Prosecutor’s Office. Additionally, in accordance with Art 15(3) if the Prosecutor requests authorization to start an investigation “victims may make representations to the Pre-Trial Chamber.” As a consequence, if the Prosecutor decides to request authorization to start an investigation Israel would have the option to present its own challenge before the judges or could let Israel’s victims of the incidents make the arguments.

Fourth, Israel could achieve an even bigger impact while avoiding the intervention of the Court by inviting Palestine to create a “bilateral fact-finding committee” with experts representing all the parties to investigate alleged crimes committed by any party. This committee, which could also include international experts, could provide the evidence collected to Palestinian or Israeli Courts with jurisdiction over the case. I am not sure if the current state of the relations between the parties makes it feasible to develop such a common mechanism, but I am presenting it because I see its enormous advantages. It would create a buffer between both parties and the ICC and it would foster a strong complementarity system for all the parties. Palestine and Israel could have a common position on the existence of genuine proceedings and the ICC would remain as an institution of last resort.

The Palestinian acceptance of the ICC’s jurisdiction since June 2014 is a very limited request that if properly answered could allow Palestine and Israel to review the most recent incidents and leave them in the past.

But most importantly, Palestine is turning the page for the future by its ratification. All the parties involved in the conflict have to adjust to a new legal framework. The statute will enter into force on April 1, 2015 and as a consequence Hamas’ use of rockets against civilians should cease, Israel’s military interventions should be carefully planned to be within the legal limits and relief supplies should not be impeded. Palestine’s and Israel’s security would be improved If that happens.

This alone would be an enormous improvement and the only remaining issue to discuss would be the legality of Israel’s settlements. “The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a war crime included in the Rome Statute as a result of the Arab countries’ request. This will be a difficult debate for Israel, but it should be ready to participate in order to do damage control. Israel could present its arguments connected with the jurisdiction but also allege that settlements are not in Palestine but rather in disputed territories, and additionally that the alleged crimes were eventually committed in the past by those who decided the settlements. The possibility to discuss the legal limits could contribute to a peaceful negotiation of the problem.

Palestine’s ratification of the Rome Statute should be perceived as an opportunity. A proper Israeli answer could reduce tensions and avoid a further escalation. Any new crime by any party or any aggressive measure could transform this opportunity into a serious problem. Palestine still has the option, as a full-fledged state party, of making a referral and thereby reducing the involvement of the judges in the opening of an investigation and cutting Israel’s options. Other countries could also refer incidents relating to the situation such as the Comoros previously did. The creativity of Just Securitycontributors should be applied to explore how the Rome Statute could be utilized to respect the interests of both Israel and Palestine and to confront the enemies of peace.  As Colombia’s Constitutional Court stated, “peace is not the absence of conflicts, but the possibility to resolve them by peaceful means.”

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About the Author

was the First Chief Prosecutor of the new and permanent International Criminal Court. (2003-2012). He is Global Practice Counsel at Getnick & Getnick and a Senior Fellow at the Jackson Institute for Global Affairs at Yale University.