I wanted to share this interview with British journalist Owen Jones, which may be of interest to those following the landmark decision of ICC Prosecutor Karim Khan to request arrest warrants against senior Israeli and Hamas leaders over alleged war crimes and crimes against humanity.
The interview covers many things, including: the basis of the ICC’s jurisdiction; reactions of the United States and others to the Prosecutor’s request; the importance of the Prosecutor’s focus on crimes against humanity; the troubling invocation of “equivalency” by certain states and observers; what to expect if the Court issues warrants; and the consequences on states that sell Israel and Hamas weapons.
We also cover why we should have hope for a better future in Israel and Palestine.
As always, please share your feedback and thoughts!
Mark Kersten is an Assistant Professor in the Criminology and Criminal Justice Department at the University of the Fraser Valley in British Columbia, Canada, and a Senior Consultant at the Wayamo Foundation in Berlin, Germany. Mark is the founder of the blog Justice in Conflict and author of the book, published by Oxford University Press, by the same name. He holds an MSc and PhD in International Relations from the London School of Economics and a BA (Hons) from the University of Guelph. Mark has previously been a Research Associate at the Refugee Law Project in Uganda, and as researcher at Justice Africa and Lawyers for Justice in Libya in London. He has taught courses on genocide studies, the politics of international law, transitional justice, diplomacy, and conflict and peace studies at the London School of Economics, SOAS, and University of Toronto. Mark’s research has appeared in numerous academic fora as well as in media publications such as The Globe and Mail, Al Jazeera, BBC, Foreign Policy, the CBC, Toronto Star, and The Washington Post. He has a passion for gardening, reading, hockey (on ice), date nights, late nights, Lego, and creating time for loved ones.
4 Responses to The only equivalency that matters is in the equal treatment of victims and survivors: An interview on the ICC and the request for warrants against Israeli and Hamas leaders
An excellent interview which I saw on 21 May. My concerns are that Israeli inbred impunity and US pressure on the ICC (and ICJ) will dilute the accountability and we are no further ahead in ending the genocide.
Fantastic interview Mark!! Savita Pawnday Executive Director Global Centre for the Responsibility to Protect
Ralph Bunche Institute for International Studies CUNY Graduate Center 365 Fifth Avenue, Suite 5203 | New York, NY 10016| United States T: + 1 212 817 2104 | M: + 1 917 680 5477 E: spawnday@globalr2p.org W: http://www.globalr2p.org
Here are my contrarian views on the Court’s jurisdiction. Sorry if it’s too long:
For its own part, the UN General Assembly acknowledged in its Resolution 43/177 (1988) that the Declaration of the State of Palestine had been supplied in accordance with the terms of resolution 181(II). That was a mixed legal instrument which contained a minority treaty undertaking. Among other things it required the both the Arab and Jewish “state” to provide a unilateral declaration to acknowledge acceptance of the terms and stipulations of the UN minority protecton plan as part of customary practice for new states and termination of international tutleage. See The General Principles Governing the Termination of a Mandate, Luther Harris Evans The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758 (24 pages) https://www.jstor.org/stable/2189582
The resolution stipulations on minority rights were recognized “as fundamental laws of the State and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them.”
Those stipulations were also required to be incorporated into the text of the respective state constitutions and were placed under the permanent guarantee of the General Assembly. They cannot be altered or declared void without its consent. The terms also included a compromissory clause that allows any of the parties to submit disputes to the ICJ for resolution. Israel’s declaration was supplied and affirmed in the course of the hearings on its membership application. The declaration was cited in the text of UN resolution 273 (III) 1949. See UN document A/AC.24/SR.51 for the evidence and discussion. https://unispal.un.org/pdfs/AAC24SR51.pdf
The UN minority protection plan in resolution 181(II) was subsequently cited in a 1950 study on the continuing legal validity of the LoN and UN undertakings concerning minorities. [ https://digitallibrary.un.org/record/57395%5D
The fact that resolution 181(II) had created a permanent responsibility for the General Assembly and contained an entire chapter devoted to safeguarding clauses that secured the pre-existing minority rights contained in the Palestine Mandate, and the Treaty of Berlin, 1878 was part of the ICJ legal analysis in the Wall case (e.g. paras 49 & 129).
So, this 1988 resolution was an example of General Assembly treaty practice with respect to the existing State of Palestine. The former ICC Prosecutor could have used itnto accept jurisdiction for crimes retroactive to the entry into force of the Rome Statute. It was accompanied at the time of the resolution by recognition of statehood from 90 UN member states.
I don’t think the former Prosecutor needed to question the Article 12(3) Declaration at all after he received the lists of international treaty agreements between the State of Palestine and several of his own ICC member states. Those were adequate evidence of statehood prior to the entry into force of the Rome Statute.
The Rome Statute created the Court’s jurisdiction and its own independent, legal personality. For example, Article 4 gives the Court the power to enter into agreements and exercise its jurisdiction on the territory of a Bantustan if necessary to fulfill its purposes and prosecute the crime of apartheid. There’s no shortage of armed conflicts and crimes involving disputes about the existence of statehood. Those are legal questions that must be resolved by following the evidence and customary law. See for example the motion to dismiss and Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State https://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm
The statute and customary law do not require the victim of aggression to be “sovereign,” a UN member, or “recognized” by some or all of the parties to an armed conflict. The Rome Statute defines the crime of aggression “in accordance with the definition contained in General Assembly Resolution 3314.” It contains an explanatory note that says: “In this Definition the term “State”: … Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations.”
The individual state parties that authored the Rome Statute agreed to grant third-party states the right to accept the Court’s jurisdiction, without becoming a member. See Article 12(3). The Vienna Convention on The Law of Treaties applies to any treaty, like the Rome Statute, that creates an international organization. See Article 5: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Its rules on revoking the rights of third party states prevent the Prosecutor from unilaterally doing that, without first obtaining consent from all of the contracting state parties, as well as the third party state. See VCLT Articles 36 and 37.
Palestine was already a full member “state” of several international treaty organizations including the UN Economic Commission for Western Asia, the League of Arab States, and the Organization of Islamic Cooperation. These treaty memberships happened long before either the Rome Statute or the ICC existed. Palestine is a contracting state party to their treaties related to terrorism and extradition. So, member states and the Registrar had to treat Palestine as a bona fide third-party state “without delay” for the purposes of the portions of the Rome Statute that were triggered by its 12(3) declaration treaty obligations. See Part 9 International Cooperation and Judicial Assistance. The Prosecutor can’t logically argue, at one and the same time, that Palestine isn’t a “state” for the purposes of Article 12(3), and ignore dispositive evidence that it is one for the purposes of international treaties regarding extradition. Those might be useful in obtaining custody of accused parties according to the Articles in Part 9.
Justice in Conflict 
An excellent interview which I saw on 21 May. My concerns are that Israeli inbred impunity and US pressure on the ICC (and ICJ) will dilute the accountability and we are no further ahead in ending the genocide.
Fantastic interview Mark!! Savita Pawnday Executive Director Global Centre for the Responsibility to Protect
Ralph Bunche Institute for International Studies CUNY Graduate Center 365 Fifth Avenue, Suite 5203 | New York, NY 10016| United States T: + 1 212 817 2104 | M: + 1 917 680 5477 E: spawnday@globalr2p.org W: http://www.globalr2p.org
Twitter: @savita_pawnday
Here are my contrarian views on the Court’s jurisdiction. Sorry if it’s too long:
For its own part, the UN General Assembly acknowledged in its Resolution 43/177 (1988) that the Declaration of the State of Palestine had been supplied in accordance with the terms of resolution 181(II). That was a mixed legal instrument which contained a minority treaty undertaking. Among other things it required the both the Arab and Jewish “state” to provide a unilateral declaration to acknowledge acceptance of the terms and stipulations of the UN minority protecton plan as part of customary practice for new states and termination of international tutleage. See The General Principles Governing the Termination of a Mandate, Luther Harris Evans The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758 (24 pages) https://www.jstor.org/stable/2189582
The resolution stipulations on minority rights were recognized “as fundamental laws of the State and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them.”
Those stipulations were also required to be incorporated into the text of the respective state constitutions and were placed under the permanent guarantee of the General Assembly. They cannot be altered or declared void without its consent. The terms also included a compromissory clause that allows any of the parties to submit disputes to the ICJ for resolution. Israel’s declaration was supplied and affirmed in the course of the hearings on its membership application. The declaration was cited in the text of UN resolution 273 (III) 1949. See UN document A/AC.24/SR.51 for the evidence and discussion. https://unispal.un.org/pdfs/AAC24SR51.pdf
The UN minority protection plan in resolution 181(II) was subsequently cited in a 1950 study on the continuing legal validity of the LoN and UN undertakings concerning minorities. [ https://digitallibrary.un.org/record/57395%5D
The fact that resolution 181(II) had created a permanent responsibility for the General Assembly and contained an entire chapter devoted to safeguarding clauses that secured the pre-existing minority rights contained in the Palestine Mandate, and the Treaty of Berlin, 1878 was part of the ICJ legal analysis in the Wall case (e.g. paras 49 & 129).
So, this 1988 resolution was an example of General Assembly treaty practice with respect to the existing State of Palestine. The former ICC Prosecutor could have used itnto accept jurisdiction for crimes retroactive to the entry into force of the Rome Statute. It was accompanied at the time of the resolution by recognition of statehood from 90 UN member states.
I don’t think the former Prosecutor needed to question the Article 12(3) Declaration at all after he received the lists of international treaty agreements between the State of Palestine and several of his own ICC member states. Those were adequate evidence of statehood prior to the entry into force of the Rome Statute.
The Rome Statute created the Court’s jurisdiction and its own independent, legal personality. For example, Article 4 gives the Court the power to enter into agreements and exercise its jurisdiction on the territory of a Bantustan if necessary to fulfill its purposes and prosecute the crime of apartheid. There’s no shortage of armed conflicts and crimes involving disputes about the existence of statehood. Those are legal questions that must be resolved by following the evidence and customary law. See for example the motion to dismiss and Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State https://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm
The statute and customary law do not require the victim of aggression to be “sovereign,” a UN member, or “recognized” by some or all of the parties to an armed conflict. The Rome Statute defines the crime of aggression “in accordance with the definition contained in General Assembly Resolution 3314.” It contains an explanatory note that says: “In this Definition the term “State”: … Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations.”
The individual state parties that authored the Rome Statute agreed to grant third-party states the right to accept the Court’s jurisdiction, without becoming a member. See Article 12(3). The Vienna Convention on The Law of Treaties applies to any treaty, like the Rome Statute, that creates an international organization. See Article 5: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Its rules on revoking the rights of third party states prevent the Prosecutor from unilaterally doing that, without first obtaining consent from all of the contracting state parties, as well as the third party state. See VCLT Articles 36 and 37.
Palestine was already a full member “state” of several international treaty organizations including the UN Economic Commission for Western Asia, the League of Arab States, and the Organization of Islamic Cooperation. These treaty memberships happened long before either the Rome Statute or the ICC existed. Palestine is a contracting state party to their treaties related to terrorism and extradition. So, member states and the Registrar had to treat Palestine as a bona fide third-party state “without delay” for the purposes of the portions of the Rome Statute that were triggered by its 12(3) declaration treaty obligations. See Part 9 International Cooperation and Judicial Assistance. The Prosecutor can’t logically argue, at one and the same time, that Palestine isn’t a “state” for the purposes of Article 12(3), and ignore dispositive evidence that it is one for the purposes of international treaties regarding extradition. Those might be useful in obtaining custody of accused parties according to the Articles in Part 9.
Here is the link to the 1950 study on the legal status of LoN and UN minority undertakings.
https://digitallibrary.un.org/record/573952?v=pdf