Having been accepted to the ICC, the Palestinin Authority can file war crimes complaints against after 60 days.
by Ilene Prusher 18 January 2015 Haaretz
Since the collapse of the United States-sponsored final status talks last April, Israelis and Palestinians have been in a downward spiral, with little hope of a resumption of the peace process in sight. With apparently dwindling prospects of making gains in negotiations with Israel, the Palestinian Authority has instead opted to seek international recognition for a Palestinian state, and acceptance to international bodies.
Following a failed gambit to pass a resolution for the creation of an independent Palestinian state at the United Nations in late December, on January 1 Palestinian President Mahmoud Abbas signed on an application to the International Criminal Court in the Hague. In retaliation for both moves, which Prime Minister Benjamin Netanyahu views as diplomatic warfare, Israel announced it was freezing about half a billion shekels in tax revenue due to the Palestinian Authority.
Should Israel be worried? Does the ICC actually have any teeth, and what will happen next? A few questions and answers below help explain the significance of the latest developments.
What exactly is the ICC? Is it a part of the UN?
The ICC is an independent international organization based at The Hague in the Netherlands, and is not part of the UN system. It was founded after a long campaign that culminated in the Rome Statute, which was adopted by 120 states in 1998 and entered into force in 2002, after 60 countries ratified it. More than 120 countries have now ratified the treaty – Israel and the U.S. are not among them.
Until the creation of the ICC, tribunals were established to try crimes committed only within a specific time-frame and during a specific conflict. Since such tribunals were difficult to establish and sometimes happened only decades after the fact – witness the long-overdue and still-running tribunal addressing the Cambodian genocide, which occurred in the mid-1970s – there has been a consensus among many international law experts and human rights advocates that an independent, permanent criminal court was needed. The perceived need for an international criminal court grew in particular following the international tribunals for Rwanda and the former Yugoslavia.
What’s the difference between the ICC and the ICJ, the International Court of Justice?
Both are in the Hague, lending some degree of confusion. At the ICJ, which is a branch of the UN, states act as parties and can initiate contentious cases against other states, for example Ecuador versus Colombia. The UN General Assembly can pose legal questions to the court and gain “advisory opinions,” but these opinions are not binding on state parties. One example of an advisory opinion was the case in which the UN asked the ICJ for an opinion on the legality of the construction of the separation barrier in Israel, which opponents call an “apartheid wall.”
The ICC, on the other hand, only interprets the Rome Statute and has jurisdiction to try individuals, not states. Cases at the ICC can be initiated either by a prosecutor choosing to initiate a case, a referral from the UN, or a state who is party to the Rome Statute. Since Palestine was recognized in November 2012 by the UN General Assembly as a “non-member observer state,” it became eligible to apply for many treaties, including the one that created the ICC.
What period of time might the court look at in terms of the Israeli-Palestinian conflict?
The courts said in a press release that on January 1 its registrar received “a document lodged, under article 12(3) of the ICC Rome Statute, by the Palestinian government declaring Palestine’s acceptance of the jurisdiction of the ICC since 13 June 2014.” That is the day after the June 12 kidnapping of Naftali Fraenkel, Gilad Shaer and Eyal Yifrah, three teenagers who were seized from a West Bank hitchhiking post by two members of the Hamas-affiliated Qawasmeh clan and later murdered. The date indicates that the PA will try to bring charges of war crimes related to Israel’s sweeping arrests in the West Bank following the kidnapping, as well as the whole of the IDF’s actions in Gaza during Operation Protective Edge. Therefore, it would not include the time of Operation Pillar of Defense or Operation Cast Lead.
If the court is now accepting jurisdiction over the PA, does that mean that Israeli officials, both civilian and military, could soon be tried?
Acceptance of the ICC’s jurisdiction in a case does not automatically trigger an investigation, the court notes. “It is for the ICC prosecutor to establish whether the Rome Statute criteria for opening an investigation are met and, where required, to request authorisation from ICC judges,” the court said in a statement.
At the end of the war this summer, the chief prosecutor of the ICC, Fatou Bensouda, wrote an op-ed in The Guardian in which she opined that as of November 2012, Palestine now has the status of state and can therefore file war crimes complaints against Israelis if it chooses to join the ICC’s Rome Statute. Some interpreted this as an encouragement to proceed.
Again, the ICC can only try individuals as opposed to Israel as a whole. Therefore, it is most likely that names on the docket could potentially be Israeli leaders such as the prime minister and minister of defense, senior IDF officials and mid-level military commanders of IDF units known to have led operations in areas of the Gaza Strip with particularly high casualty counts, such as Shujaiyeh and Rafah.
What kinds of crimes can be tried in the ICC? What does it say about what kind of crimes the PA may try to have lodged against Israelis?
The ICC defines itself as an “independent, permanent court that tries individuals accused of the most serious crimes of concern to the international community as a whole.” The court addresses four general areas: genocide, crimes against humanity, war crimes and crimes of aggression. These four areas are detailed in great depth, and could be interpreted by Palestinians – and a sympathetic court – to be legitimately charged against Israeli officials. For example, the listing under war crimes includes this definition: “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”
The first three of seven definitions of crimes of aggression in the treaty include: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State.
Is the ICC biased against Israel? Does it deal with other human rights violations?
So far, 21 cases in nine conflicts have been brought before the International Criminal Court. The court says that to date, four parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring in their own countries to the court. In short, it has largely been used for conflicts in Africa.
What are the chances of the ICC convicting Israelis?
The ICC has so far convicted only two people – Thomas Lubanga Dyilo and Germain Katanga, two Congolese warlords. The court itself cannot make arrests and has no power to detain people, although individual member states can. More likely to be of concern is the threat of Israelis being hauled into court at the Hague, and the damage this does to Israel’s image, explains Shana Tabak, a practitioner-in-residence with the International Human Rights Law Clinic at American University: “If a case were to be brought against an Israeli official, presumably Israel would not turn that defendant over to the court. However, it would make for a difficult public relations campaign and would also make it more difficult for the official to travel through any country in Europe, for example, which had signed onto the Rome statue.
“What is most important in my eyes in terms of the Palestinians joining the ICC – as well as over a dozen other international treaties – is that it is bolstering its position vis-à-vis the international community and the UN, which can only lead to greater international recognition of Palestine as a state.
“The move also potentially opens up Palestinian officials to prosecution at the ICC for war crimes, so one might hope that signing the Rome Statute along with other important human rights treaties indicates a willingness on the part of the Palestinian government to refrain from any policies that might lead to prosecution of their own officials. The cynical perspective, of course, is that Palestinian behavior need not change, yet signing the Rome Statute allows Palestine to bring cases against Israel which, whether or not they are successful in bringing defendants to the Hague, will have important public relations ramifications on the world stage.”
Now that the Palestinians have signed on, what happens next?
PA President Mahmoud Abbas’s signature on the documents last Friday started a 60-day period, after which the PA could file war crimes complaints with the ICC Prosecutor’s Office. On Tuesday, Secretary-General Ban Ki-moon said the state of Palestine will officially join the ICC on April 1. In a statement posted on the UN’s treaty website Tuesday night, the secretary-general said he was acting as the “depositary” for the documents of ratification.
Analysis / ICC inquiry is a game changer for Israel
The international Court will consider four issues in examining whether Israel has a case to answer for its actions in the Palestinian Territories.
by Aeyal Gross 19 Januray 2015 Haaretz
“The same court that after more than 200,000 deaths in Syria didn’t see a reason to intervene there, in Libya, or in other places, finds it necessary to ‘examine’ the most moral army in the world.” That was the response of Foreign Minister Avigdor Lieberman to last Friday’s announcement by the Prosecutor of the International Criminal Court, Fatou Bensouda, that they would be opening a preliminary examination of the situation in Palestine.
Given that the ICC in 2011 issued arrest warrants for Saif al-Islam Gadhafi, the son of the deposed Libyan leader, and Libyan intelligence chief Abdullah Senussi, Lieberman is either exhibiting woeful ignorance or not telling the truth.
With regard to Syria, it would behoove the foreign minister to learn the rules of the ICC’s jurisdiction, which can stem from one of three instances: A country where crimes were allegedly committed joins the court or consents to jurisdiction; a country whose citizens allegedly committed the crimes joins the court or agrees to a judgment; or a case is referred by the United Nations Security Council.
While the Security Council referred the case of Libya to the ICC, it did not do so in Syria’s case, which is why the court has no jurisdiction to intervene.
In the Israeli-Palestinian case, jurisdiction stems from the consent to judgment by a state in which the crimes were allegedly committed – Palestine. (While Israel doesn’t recognize it, a state by that name is recognized by international institutions.)
The decision on Palestine’s status by Bensouda is significantly different than that of her predecessor in April 2012. The previous prosecutor, Luis Moreno-Ocampo, thought there were doubts as to whether Palestine was a state, and noted, inter alia, the importance of the United Nations’ position on this point.
Recognition of Palestinian state
From the moment in November 2012 that the UN General Assembly recognized Palestine as a non-member state (its previous status was non-state observer), it was clear that the current prosecutor would have difficulty not accepting Palestine as a state, and it is now recognized as the 123rd state to join the court.
The UN secretary-general, the president of the ICC Assembly of States Parties and the court registrar have all recognized the Palestinian affiliation, and so did the prosecutor. Now the gap between the Israeli and international stance is becoming eminently clear.
Palestine cannot be accepted as a UN member state because that requires the recommendation of the Security Council – which the United States would veto. But there’s no such veto in the General Assembly, and the ICC is not a UN body; nor is it subordinate to the Security Council. The General Assembly and the ICC have proven to be effective mechanisms to bypass the hegemony, fortified by their veto, the Americans have in the Security Council. According to the ICC constitution, however, the Security Council may ask that the court not deal with a specific issue for 12 months, and to renew such a request.
It should be noted that the ICC prosecutor is in the midst of conducting preliminary examinations against numerous countries. These include claims of torture by British security forces in Iraq and by U.S. security forces in Afghanistan. There is an examination of Russia over alleged crimes committed in Georgia. One can, of course, doubt whether the prosecutor will ultimately want to start up with those countries, but it’s clear that at this stage, Israel is hardly exceptional.
What will Bensouda consider during her inquiry? First would be whether the court indeed has jurisdiction, which seems to be the case since Palestine is a recognized state that has consented to a judgment.
The second would be the principle of complementarity, which means the court will not deal with the matter if a relevant state is conducting a genuine investigation of the issue. In this context, assessing the objectivity of the investigations Israel is conducting into the harm done to Gazan civilians during Operation Protective Edge last summer will be critical: Only an independent investigation – not one being done to shield Israelis from prosecution in The Hague – will be considered genuine.
Also, while the complementarity issue is relevant to investigating Protective Edge, it isn’t relevant to another alleged crime the prosecutor may examine: that of transfer of part of the civilian population into occupied territory. Since the settlements are government policy, it’s clear that complementarity won’t apply there.
The third consideration is the gravity of the events. This is why the ICC prosecutor closed the investigation into the killing of civilians on the Gaza-bound aid flotilla in 2010, a case that reached the ICC because the Mavi Marmara ship, where the 10 deaths occurred, was registered in the Comoro Islands, which referred the case to the court.
The picture is different, of course, with regard to Palestine, which will bring much broader issues to the court’s attention.
The fourth and final issue is whether considerations of justice justify continuing the investigation. This allows the prosecutor to take into account the positions of the victims, international organizations, and more – although the prosecutor’s office has clarified in the past that only in extraordinary circumstances would considerations of justice lead to the closing of a case.
In any event, examining all four considerations is likely to take a long time.
If, after examining all these considerations, the prosecutor thinks there are grounds to move forward, she will then have to examine whether there is a reasonable basis for concluding that crimes were committed. If there is such a basis, the real investigation will begin.
Such an investigation might be conducted both against Israelis – regarding civilian casualties in Gaza and in connection to the settlements – but also against Palestinians responsible for attacks on Israeli civilians.
Even if charges are filed against Israelis, they could not actually be tried unless they were extradited to the court, the chances of which are extremely small.
However, there is no doubt that the rules of the game have changed. Israelis and Palestinians alike are coming, for the first time, under the jurisdiction of an international criminal tribunal. If the foreign minister is surprised, it’s probably because he hasn’t yet internalized that Israel’s legal stance regarding a variety of issues is very far from the internationally accepted positions.