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The Establishment of the International Criminal Tribunal for Palestine (Part I)

The new “Palestinian ICC bid” is barely two weeks old and already in full throttle, with the international legal and political commentators split between the traditional camps of “good idea” and “bad idea.” Here at Just Security, a series of exchanges – from David Luban’s insights, through Robert Howse’s critique, to former ICC chief prosecutor Luis Moreno Ocampo’s reflections – has featured the broader, more systemic interplay of law and legal analysis, political rhetoric, and strategic policy. This is also the heading of my own contribution to the debate, focusing on the cross-cutting role of international lawyers in this context and interrogating the arguments that they make.

Palestinian Accession and the 1983 Namibia Precedent

In two recent posts, Howse opined that the United Nations Secretary-General (SG), acting as the depositary of the Rome Statute (RS), lacks the international legal authority to decide whether the Palestinians can join the ICC. I completely agree with his analysis. However,  both at UN Headquarters in New York and at the ICC seat at The Hague, the powers that be beg to differ. The UN Office of Legal Affairs (OLA) has produced a depositary notification effecting the Palestinian action; the President of the RS Assembly of States Parties (ASP) quickly “welcomed the deposit;” and the ICC chief prosecutor’s recent announcement officially closed the file on the entire debate. This all happened fairly swiftly, and it’s unclear to me what kind of internal consultations and deliberations, either political or legal, took place in this short span of time. One can hope that international lawyers involved in these processes took a moment or two to pause and reflect, appreciating the legal complexity of the matter and its ramifications, in principle and in practice. To be frank, I find all that to be somewhat unlikely.

Howse’s position (as I understand it) is that when substantial and substantive legal doubts regarding an entity’s statehood exist, such an entity can only accede to an international treaty with the assent of that treaty’s membership. One would think the OLA shares this view, since Howse’s proposition finds crystal-clear support in a 1983 precedent involving Namibia’s (then represented by a special UN body) accession to the International Atomic Energy Agency’s (IAEA) Statute. Importantly for current purposes, this precedent brings together State practice and “UN bureaucratic practice” (Howse’s two discussants strangely treat this as normatively authoritative, which is anything but self-explanatory.) Equally important is that both forms of practice are contained in a UN legal memo that found that only states parties to the IAEA statute could grant Namibia accession. In that memo, the OLA is advising in regard to a US note, circulated in its capacity as depositary of the IAEA Statute, clarifying that the US-as-depositary cannot accept Namibia’s accession because of the lingering legal question of Namibian statehood, and accordingly requesting the comments of States parties. The UN memo endorses the procedure followed by the US, codified in Article 77(2) of the Vienna Convention on the Law of Treaties – same provision referred to in Howse’s rejoinder. Furthermore, the memo’s only complaint pertains to the US note’s imprecise request for comments, not “a decision as to whether the instrument should be deposited.” The memo then mentions that Namibia already acceded to a couple of multilateral human rights treaties deposited with the SG, in accordance with a prior UN General Assembly (GA) resolution. These accessions are deemed exceptional owing to SG-GA relations, and the memo therefore concludes that “it is up to the parties to make a final determination” regarding Namibian accession the IAEA Statute.

Apparently, what’s good for the Namibian goose isn’t good for the Palestinian gander. But you might say that in the Palestinian case, referring the question first to the ASP is merely a formality, since the latter is bound to accept the Palestinians with open arms, as Luban’s post seems to suggest, and as the abovementioned reaction of the ASP’s President appears to both prove and prejudge. Perhaps, but consider that in the Namibian precedent, the US note was circulated after the IAEA General Conference (the plenary treaty body, i.e. the institutional equivalent of the ASP) approved Namibia’s accession. The OLA memo includes this in the legal analysis but nevertheless instructs to address the States parties in response to the US note, “recalling the decision taken by the General Conference” and “expressing the wish that the other parties pronounce themselves in favour of the deposit of the instrument of acceptance.” The memo expects this “to remove all difficulties of a legal nature that the depositary may find in accepting the instrument. Should, however, the results be deemed inconclusive,” a dispute settlement process would ensue. In the Namibian case, the treaty’s membership had already taken a formal, positive action regarding the accession by the entity-of-questionable-statehood – whereas in the Palestinian case the membership is just being expected to do so, albeit with very high probability. Still, the UN legal opinion on Namibia/IAEA was that the US as depositary must refer and defer to the treaty’s membership; and furthermore, that actual accession will require yet another positive action by said membership, otherwise a dispute will arise. The latter scenario is governed by the lex specialis of the relevant treaty – Article XVII of the IAEA Statute in the Namibian case, and RS Article 119 in the Palestinian case (again, as argued by Howse in his original post).

The contrast between the position presented by the OLA memo and the recent conduct of the SG could hardly be starker, and we’re left wondering what explains the evolution in the UN legal position over the years. Here, I build on what I take as Howse’s second, more structural point – cautioning international lawyers against letting profound legal doubt drown in the drumbeat of political rhetoric. His warning appears to be near-prophetic given how the SG, the ASP’s President, the ICC chief prosecutor, and their respective legal advisers have handled the most recent Palestinian attempted accession.

Forcing Israel to Plea Bargain?

Enter Ocampo, drawing attention to the Palestinian ad hoc declaration in accordance with RS Article 12(3), lodged in close coordination with the Palestinian instrument of accession. Equally hastily as the SG and the ASP’s President, the ICC Registrar accepted the Palestinian ad hoc declaration and transmitted it to the ICC chief prosecutor, Fatou Bensouda, whose rapid response was initiating a preliminary examination (of jurisdiction and admissibility). Ocampo brands the Palestinian move as “complex,” but there’s no mystery about the accession/declaration duality. As Beth Van Schaack explained, comparing the Palestinian case with that of Cote d’Ivoire, the ad hoc declaration broadens the ICC’s temporal jurisdiction retrospectively. Had the Palestinians only acceded to the RS, the ICC could have only exercised jurisdiction prospectively from the Statute’s entry into force for the Palestinians.

Put differently, the Palestinians didn’t confine to creating a forward-looking, credible deterrent against Israel by acceding to the RS and leaving the loaded jurisdictional gun on the table. “Firing” this gun would have necessitated a referral under Article 14. (I’m assuming here that the ICC prosecutor won’t preempt them with a proprio muto investigation under RS Article 15(1), given the sensitivity.) Instead, the Palestinians opted for a stronger statement and much more immediate satisfaction. Their wish was granted in accordance with the ICC prosecutor’s policy paper, stipulating that a preliminary examination will be initiated “upon receipt” of an ad hoc declaration. To be sure, the Palestinians’ preference is more than understandable after the recent cold shoulder displayed in the UN Security Council.

However, this is only the ‘law-side’ of the chasm. On the ‘rhetoric-side,’ the Palestinian declaration’s chosen start date for the ICC’s retrospective jurisdiction, June 13, 2014, presents its own causes for concern. Why did the Palestinians select this day to be Israel’s potential day of international criminal reckoning? Arguably, the Palestinians could have asked the ICC to go as far back as July 1, 2002, when the RS entered into force. In fact, the Palestinians did precisely that in their previous (unsuccessful) attempt to take Israel to the ICC by virtue of an ad hoc declaration. Alternatively, the Palestinians could have opted for November 29, 2012 – the date on which the UN General Assembly granted them “non-member observer status,” heeding Ocampo’s (as then-ICC-chief-prosecutor) call and rectifying the legal defect that prevented him from moving forward with the Palestinian case based on the first ad hoc declaration. However, in choosing June 13, 2014, the Palestinians apparently followed the lead of the UN Human Rights Council’s recent resolution, establishing the Schabas Commission for investigating last summer’s round of Israeli-Palestinian hostilities. The June 13th launch date conspicuously excludes from the scope of the investigation the kidnapping and murder of the three Israeli teens in the West Bank, which occurred on June 12.

Ocampo considers the calendrical gap between the two ad hoc declarations to be an encouraging aspect: to his mind, the Palestinians have “reduced drastically [their] request to investigate the past,” from twelve-years to six-months. Strictly speaking, Ocampo’s observation is correct. Yet he proceeds to undermine it by recalling that the “only remaining issue to discuss would be the legality of Israel’s settlements.” Here, Ocampo anticipates a “difficult debate” where Israel could supposedly still do “damage control,” for instance, by dismembering the settlements’ corpus delicti. Ocampo is basically claiming that the continuous consequences of Israel’s alleged ‘settlement offenses’ – in the form of some 500,000 Israelis residing (as of 2009) in the West Bank and East Jerusalem – are somehow disconnected from the underlying actions, which “were eventually committed in the past.” This is a most innovative and intriguing proposition, one I’m still contemplating, especially in light of the preexisting tension between the temporal boundaries of ICC jurisdiction and the concept of continuing conduct (which the ICC Lubanga judgment didn’t really confront). More importantly, it’s hard for me to imagine any government, let alone that of Israel, making this grand gesture of mea culpa and conceding the international criminality of a near-fifty-year-old national project. Make no mistake: this is exactly how global public opinion will perceive Israel getting off the international criminal hook on such a counterintuitive technicality. It’s akin to a US Government admitting the genocidal character of American westward continental expansion or the apartheid-esque attributes of pre-Civil-Rights-Act segregation, and then invoking a historical statute of limitations. It’s not that governments shouldn’t or don’t apologize for past wrongs – they simply won’t do so before an international judge while pleading “not guilty” to criminal charges. But history is most welcome to prove me wrong on this point.

In that case, Ocampo suggests that the Israeli government revert to its vintage thesis of “disputed territories.” Again, I’m skeptical that Israel’s government will do so, considering that less than two years ago it shied away from endorsing the Levy Commission report, tasked with resuscitating the “disputed territories” thesis. However, it is also abundantly clear that Israel has no compelling complementary claim when it comes to the settlement. Therefore, it stands to reason that if the Settlements Trial reaches the merits stage, Israel will pull out all the stops. Remarkably, Ocampo seems to imply this also stands a chance, i.e. that the ICC can be convinced to disregard the ICJ’s 2004 Wall Advisory Opinion’s unequivocal (yet non-binding) ruling that the settlements are unlawful. Should that happen, space would arguably open up for a thorough and honest review of the “disputed territories” thesis. But wouldn’t that require an even longer stroll down the conflict’s memory lane, digging up facts and deciding competing claims that go back much farther than July 2002 – to June 1967, November 1947, and perhaps even November 1917? And if so, wouldn’t it be more logical to surmise that the Palestinian ad hoc declaration postponed the ICC’s backward facing investigation from July 2002 to June 2014 not to spare the ICC, but rather to shield the members and leaders of the central Palestinian faction, the Fatah, from the ICC’s double-edged sword? Recall that during the heyday of the Second Intifada (2000—2005), both the Fatah’s and Palestinian Authority’s (PA) apparatuses were reportedly implicated in the hostilities, including by orchestrating terror attacks against Israeli civilians.

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC. A separate post, coming tomorrow, will explore this issue in more detail.

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About the Author

is a J.S.D. candidate at New York University School of Law. He was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.