Toby Cadman joins JiC for this guest-post on why there is seemingly a reluctance on the part of the Palestinian Authority to sign the Rome Statute of the International Criminal Court (ICC). Toby is a barrister from 9 Bedford Row. He is defence counsel at the Bangladesh Tribunal and has been counsel in the Uhuru Kenyatta case at the ICC.
Palestinian Foreign Minister Riad al-Malki following a visit to the ICC (Photo: Reuters)
There are many matters to resolve in Israel and Palestine and this may appear overwhelming to the extent of not truly knowing where to start. But the first theme that we can address is justice and accountability. It is only through the establishment of a system based on the rule of law that there can be an even playing field as a precondition to peace and reconciliation. Everything else must follow as a natural consequence of this first, most important step.
However, one cannot, and should not, waive the rule of law in front of a menacing foe as a stick and carrot. One should not choose a political solution at the expense of justice. It has been said before but change, real change, comes from a position of strength, not of weakness. The Palestinian Authority must recognise that its position of strength is ratifying the Rome Statute of the ICC and bringing the perpetrators to justice – not threatening its ratification for a greater political solution, however noble that cause may be.
Against that background, on 30 October 2014, I was invited by the Tunisian Presidency to attend a high level conference hosted by the Centre for Strategic Studies for North Africa to discuss Palestine in the broader political sense. I gave a presentation on the complex jurisdiction of the ICC and alternative mechanisms for ensuring accountability. I spoke about the role that international law can play in supporting the victims of occupation and the siege of Gaza. It was made quite clear that there remains significant appetite to see justice done, be it by cases being dealt with before a national or international court of criminal jurisdiction, or through other judicial means, namely consideration to be given to the pursuit of those foreign nationals serving in the IDF who may be responsible for some of the very clear instances of war crimes.
The conference, although covering an array of political considerations, was dominated by the issue of an ICC investigation, following the opening speeches from a host of Palestinian groups, including members of the Palestinian Authority and human rights activists. The conference also saw a number of international dignitaries including members of the UK Parliament and House of Lords.
I repeatedly made the point during my presentation and follow up discussions that we must not shy away from confronting Israel on these important issues – particularly the very serious allegation that its conduct, taken as a whole, may constitute a crime against humanity.
Having heard the speeches and discussions in Tunis, it is clear that the preferred route to justice and accountability would be to pursue matters before the ICC. However, President Mahmoud Abbas and the Palestinian Authority are delaying the ratification of the Rome Statute, instead using the ever-present threat as leverage for an Israeli withdrawal from the West Bank and the drawing up of borders. This is, in my respectful opinion, a dangerous course of action.
A young Palestinian examines damages to house in the Jebaliya refugee camp that had been hit by an Israeli strike. (The Associated Press)
The position of Fatah therefore would appear to be one of willingness to sign, but only as a last resort, should all other routes of negotiation to achieve the stated objectives fail. Hamas, on the other hand, has adopted an entirely different position. It has urged the Palestinian Authority to ratify the Rome Statute, despite there being a significant risk that its own members may also face investigation over the firing of rockets into Israel and the allegation that it has used civilian installations to store weapons. Hamas has confirmed in writing to Fatah, that the Rome Statute should be signed without delay and that it would welcome its adoption. The delay therefore is on the part of Fatah rather than Hamas. Such delay has in itself been criticised, however there may arguably be a method to the madness.
On 1 October 2014 the Palestinian President stated that his Government would join the ICC in The Hague in the event that the proposed UN Security Council Resolution on drawing pre-1967 borders and an Israeli withdrawal from the West Bank failed. The plan being proposed by the Palestinian Authority would see an end to occupation in two-to -three years. Abbas stated that if the United States vetoes the plan, as must surely be expected, the immediate ratification of the Rome Statute would follow. If one is to consider the recent statements made by members of the US Administration in relation to the situation in Gaza and the need for a two State negotiated solution, the underlying message is quite clear. Continue reading