On Palestine, International Law and the International Criminal Court

Chantal Meloni joins JiC for this first post in our symposium on Palestine and the International Criminal Court. Chantal is a Lecturer in International Criminal Law at the University of Milan and a visiting researcher at the Humboldt University of Berlin.

A Palestinian boy carries his belongings following heavy bombardment of Gaza by Israeli forces in August 2014 (Photo: Associated Press)

A Palestinian boy carries his belongings following heavy bombardment of Gaza by Israeli forces in August 2014 (Photo: Associated Press)

Until recently, the idea of using international law with regards to the Israeli-Palestinian conflict was mostly a theoretical exercise, something invoked by academics and activists, and in debates within political bodies of the United Nations (Schabas, Foreword, in Is there a Court for Gaza?).

For decades, the issue did not reach the docket of international courts and tribunals. To some extent this is because the institutions themselves did not previously exist or because they were unavailable to the Palestinians. A result of its uncertain international legal status, Palestine could not ratify the Statute of the International Criminal Court (ICC), nor could it accede to human rights law instruments and international treaties.

Thus for a long time it appeared that there was no court capable of providing a forum for the Palestinian situation. As we know, this is no longer the case: Over the past twelve years, both the International Court of Justice – with the 2004 Advisory Opinion on the Wall – as well as the ICC have been confronted with aspects of the Israeli-Palestinian conflict. Following its ratification of the Rome Statute and a new declaration lodged under Art. 12(3) of the ICC Statute accepting the jurisdiction of the Court since 13 June 2014, on the 1st April 2015 Palestine will become the 123rd member State of the ICC. Both Palestinian governmental officials and human rights organizations and lawyers representing the victims are anticipating their filing of a series of complaints and ‘communications’ to the ICC Office of the Prosecutor (OTP), covering the whole spectrum of alleged crimes committed by Israeli officials against the Palestinian people, from the war crimes in Gaza, to the settlements in the West Bank. Meanwhile, the OTP has opened a ‘preliminary examination‘ into the situation in Palestine.

This increased recourse to international law by the Palestinians has been labelled by some commentators as ‘lawfare’. The lawfare accusation in this case appears to be improper and malicious. As professor Schabas wrote: “The ‘lawfare’ label is nothing more than frustrated resistance to the availability of new mechanisms and institutions whereby international law can be applied to present conflicts, including those involving Israel and Palestine.” (Foreword, in Is there a Court for Gaza?).

It is anyhow notable given how dangerous the recourse to international law mechanisms by Palestine is perceived by Israel and its allies. It is also important to recall the incredible amount of pressure that was put on Palestine at the time of its ‘UN bid’ in 2011, when some Western States, as Italy and the UK, conditioned their support for the resolution at the UN: Palestine was asked to “refrain from applying for membership of the International Criminal Court or the International Court of Justice, which could both be used to pursue war crimes charges or another legal claim against Israel” (see K.J. Heller, Britain to support Palestine’s UNGA Resolution?).

It shall be remembered that after the so-called ‘Operation Cast Lead’ in Gaza, in January 2009 Palestine made a first attempt to activate the jurisdiction of the ICC. In the person of the then-Minister of Justice, it lodged a declaration under Art. 12(3) of the ICC Statute, accepting the jurisdiction of the Court retroactively since July 2002. Then, in September 2009, the UN Fact Finding Mission on the Gaza Conflict issued a very detailed and comprehensive report (so called ‘Goldstone Report’) outlining the commission of crimes by both sides, but in particular by the Israeli side. As Richard Falk put it: “the Goldstone Report broke the sound barrier” (The Goldstone Report and the Goldstone Retreat, in Is there a Court for Gaza?) The fact that the UN established such a high profile mission to investigate and document allegations of war crimes committed by Israel marked a novelty in the politics of the UN towards Israel. But the importance of that Report rested in particular in its precise recommendations, which emphasized the need for accountability measures, including recourse to the ICC.

At the same time, a Committee of Experts was established by the UN with the mandate to evaluate the internal investigations in Israel and Palestine. However, notwithstanding its endorsement by the UN and beyond, the political pressure to block and minimize the Report’s impact within the UN and in other fora, as the ICC, unfortunately meant that the Goldstone Report’s powerful recommendations remained un-instituted. The rights of the victims once again were cynically sacrificed vis-à-vis political calculations and treated as bargaining chips in the name of an empty and long-failed ‘peace-process’.

With regards to the ICC, the obstacle to its jurisdiction over the Palestinian territory has finally been removed and the pre-conditions for the ICC to open the investigation in the situation Palestine are now fulfilled. Paradoxically, the April 2012 decision by the ICC Prosecutor to close the 2009 preliminary examination because of the uncertain status of Palestine as a State boosted the UN General Assembly to grant upgraded status to Palestine at the UN (from non-State observer, to non-member observer State). That decision to kick the ball to the UN was not the only option for the OTP at the time. According to professor Pellet and other renowned international law scholars, a ‘functional interpretation’ of the concept of statehood would have been possible for the Court without any need to decide once and for all if Palestine was a State or not under international law. By the way, it is well know that the concept of statehood is one of the more complex in international law, and that it is basically a matter of bilateral relations between States.

So what changed after 29 November 2012? As we have already noted, it is improper to say that the UN General Assembly Resolution created the State of Palestine; however, it is a fact that, since that time, Palestine has been able to ratify international treaties, including the Rome Statute. Palestinians called joining the international bodies a “paradigm shift”, meaning that they can no longer rely on negotiations (the abused ‘peace talks’) to end Israel’s occupation of the Palestinian territory. In turn, Israel called Palestinian accession to the international treaties ‘blackmail’.

However, there is also another perspective, less political and more rights oriented. In this perspective, the recent ratification of the most important international human rights and humanitarian law treaties, including the Rome Statute, is a major advancement in many aspects. The State will have to now conform itself to the obligations contracted with the ratification of these treaties, and individual petitions on behalf of Palestinian victims can now be brought before these bodies, which can offer an effective judicial remedy.

Moreover, as noted by the spokesperson of the UN High Commissioner for Human Rights: “This accession […] is a significant step towards enhancing the promotion and protection of human rights in Palestine. It is notable in a region with a high number of reservations to human rights treaties, that Palestine is acceding to eight human rights treaties without making a single reservation.”

Equally, Palestine’s joining the ICC shall be praised as an effort to overcome the political impasse, dismiss violence and seek protection for the too many civilian victims of this conflict. It is now up to the Court to live up to its mandate and contribute to ending the impunity crisis that fosters violence in one of the most troubled regions of the world.


About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in Gaza, International Criminal Court (ICC), International Law, Israel, Palestine, Palestine and ICC Symposium, Palestine and the ICC, Peace Negotiations. Bookmark the permalink.

3 Responses to On Palestine, International Law and the International Criminal Court

  1. Thank you very much for the excellent article about Palestine, your information will be very useful to me.

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