Opinion Editorials, January 2015

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For many years, Britain has regarded Israel’s colonisation of Palestinian territory in the West Bank, including East Jerusalem, as illegal under international law and an obstacle to bringing about a “two-state solution”, which is the stated objective of British policy.  Here is a summary of that policy from the Foreign and Commonwealth Office website:
 
“We want to see a stable, prosperous Middle East with a sovereign and viable Palestinian State living in peace alongside a secure Israel at the heart of it.
 
“We are concerned by developments that threaten the viability of the two-state solution. Changing circumstances, in particular the construction of settlements on occupied land in the West Bank and East Jerusalem, mean that the two-state solution is slipping away.
 
“Our position on Israeli settlements in the Occupied Palestinian Territories is clear: they are illegal under international law, an obstacle to peace and make a two-state solution harder to achieve. We consistently urge the Israeli authorities, including at the highest levels, to cease all settlement building, revoke previous announcements and to remove illegal outposts, as required under international law.”
 
But over many years, Israel has simply ignored the repeated urging of Britain (and of the EU and various UN organisations) that it “cease all settlement building”.
 
Israel has not even been prepared to cease settlement building temporarily during negotiations with Palestinians, even though, under the Roadmap for negotiations that it accepted in April 2003, it was supposed to “freeze all settlement activity, including natural growth” before the start of negotiations.
 
It has been clear for many years that Israel is not going to “cease all settlement building” without serious and sustained pressure being applied to it – and without a halt to this colonisation project the stated objective of British policy, a two-state solution, is a dead letter.
 
 
UN enables Palestine to join the ICC
In November 2012, the UN General Assembly voted by an overwhelming majority – 138 in favour to 9 against – to grant Palestine observer rights at the UN as a "non-member state", despite fierce opposition from Israel and the US.
 
From then on, Palestine was in a position to become a party to the Rome Statute of the International Criminal Court (ICC) and accept the Court’s jurisdiction in Palestinian territories, that is, in the West Bank, including East Jerusalem, and Gaza.  In that event there would have been a peaceful legal means of applying pressure on Israel to cease its colonisation of Palestinian territory. 
 
This is because under Article 8.2(b)(viii) of the Rome Statute:
 
“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”
 
is defined to be a war crime.  The Rome Statute defines the offences – war crimes, crimes against humanity and genocide – for which individuals can be prosecuted by the ICC if it has jurisdiction. 
 
Since Israel has transferred nearly 600,000 Israeli civilians into territory it occupies, there is little doubt that war crimes have been committed by agents of the Israeli state over many years, and are still being committed.  There is a prima facie case therefore that the Israelis responsible, including the present Prime Minister, are guilty of war crimes and it may be that Americans and others who contribute funds for settlement building are guilty of aiding and abetting war crimes.
 
 
Britain (and the EU) oppose Palestine joining ICC
The Palestinian leadership wanted to join the ICC as soon as possible after November 2012 in the hope of having Israelis prosecuted for settlement building and other illegal activity in Palestinian territories.
 
But they were under great pressure not to do so from Israel and its American protector, as you might expect, but also from Britain (and the EU).  Given their utter failure over many years to persuade Israel to “cease all settlement building”, one might have thought that Britain (and the EU) would have welcomed a little legal pressure on Israel to do so. 
 
Britain opposed Palestine taking this step, despite the fact that (a) it is a party to the ICC  (unlike Israel and the US) and (b) making the ICC universal, that is, extending the jurisdiction of the ICC to every state on earth, is a stated objective of British foreign policy.  As Foreign Minister William Hague said in a speech in The Hague on 9 July 2012:
 
“Our challenge … is to strive to universalise the Rome Statute … and to make irreversible the progress that has been made in ending the culture of impunity for the worst crimes.”
 
Striving to universalise the Rome Statute and end the culture of impunity was not in evidence a few months later on 28 November 2012 when the UN General Assembly was about to vote on Palestinian statehood.  Then, William Hague offered UK support for the UN General Assembly resolution granting statehood to Palestine, providing Palestinian leaders promised (amongst other things) that Palestine would NOT become a party to the Rome Statute if it acquired statehood.
 
Yes, believe it or believe it not, it is British policy to extend the jurisdiction of the ICC to every corner of the earth, except the Palestinian territories occupied by Israel since 1967.  There, it is apparently inappropriate for Britain to seek to end the culture of impunity.
 
The justification given by William Hague for this extraordinary exception was that if the Palestinians were to pursue “ICC jurisdiction over the occupied territories at this stage, it could make a return to negotiations impossible”, as if twenty years of sporadic negotiations had curtailed Israeli colonisation one whit or brought the creation of a Palestinian state any closer.
 
Two days later, when in retaliation for the UN granting statehood to Palestine, Israel announced plans for yet more building in settlements, William Hague reacted as follows:
 
“I am extremely concerned by reports that the Israeli Cabinet plans to approve the building of 3000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law and undermine trust between the parties.”
 
What sense does it make to decry illegal actions by Israel, while pressurising Palestine into not giving jurisdiction to a court that might convict those responsible and by so doing restrain future illegality?
 
In the two years since Palestine achieved statehood, Britain continued to oppose Palestine accepting ICC jurisdiction.
 
And so did the EU, despite also being a fervent supporter of ICC universality.  This stance was formalised in a common foreign policy position, adopted by the EU Council on 21 March 2011, the purpose of which was stated to be “to advance universal support for the Rome Statute”.  In it, the EU and its member states agreed to “make every effort to further this process by raising the issue of the widest possible ratification, acceptance, approval or accession to the Rome Statute and the implementation of the Rome Statute in negotiations”.  It’s not obvious that the EU “made every effort to further this process” in its relations with Palestine in recent years.
 
 
Palestine defies US/EU
On 2 January 2015, Palestine defied the US/EU and its UN ambassador, Riyad Mansour, deposited with the UN Secretary General Ban Ki-moon the documents required to join the ICC.   On 6 January, Ban Ki-moon announced that it will take effect on 1 April.
 
The Palestinian leadership is to be congratulated for having the courage to take this step in defiance of the US/EU, on whom they rely for financial support, and in the sure and certain knowledge that Israel was sure to punish them for doing so.  For the first time since 1967, when Israel’s military occupation began, there is a possibility of some legal restraint on Israel’s actions in the territories it occupies.
 
It is no thanks to Britain or the EU that this has come about.  As entities that purport to believe in the rule of law and ICC universality, Britain (and the EU) should have encouraged Palestine to join the ICC from the moment that the option was available in November 2012.  But they did the opposite.
 
Thanks to Britain and the EU, two years have wasted, two years during which Israel has continued its colonisation of Palestinian territory – and continued to ignore pleas from Britain and the EU (and others) to cease – and in which the possibility of a viable Palestinian state being established has been further reduced.
 
A final point: if Palestine had joined the ICC two years ago, as the Palestinian leadership wished, the ICC would have had jurisdiction over Gaza since then.  That might very well have been sufficient to deter Israel from mounting a military assault on Gaza last summer, lest its military personnel be indicted by the ICC, and might have saved well over two thousand lives.

Palestine joins the ICC

By David Morrison
 
On 2 January 2015, Palestine’s UN ambassador, Riyad Mansour, deposited with the UN Secretary General, Ban Ki-moon, documents necessary for Palestine to become a party to the Rome Statute of the International Criminal Court (ICC).  The Palestinian leadership took this step despite enormous pressure being put on them not to do so by the US and the EU (and by Israel).
 
On 6 January 2015, Ban Ki-moon, announced that the Rome Statute “will enter into force for the State of Palestine on April 1, 2015”, making Palestine the 123rd state party to the Rome Statute.  From then on (and perhaps earlier – see below), the ICC will have jurisdiction in Palestinian territories, that is, in the West Bank, including East Jerusalem, and Gaza.
 
The Rome Statute defines offences – war crimes, crimes against humanity and genocide – for which individuals can be prosecuted by the ICC.  Individuals of any nationality who commit one of these offences in Palestinian territories can be charged, tried and punished by the ICC, as can Palestinian nationals who commit these offences anywhere in the world.
 
In order to try an indicted individual, the ICC has to acquire custody of him/her.  Israel is not a party to the Rome Statute and therefore has no obligation to hand over an indicted individual to the ICC, so it is unlikely that any indicted Israelis will ever be tried.  However, 122 other states in the world, including all 28 EU members, are parties to the Rome Statute, so indicted individuals (like the President of Sudan, Omar Hassan al-Bashir, who was indicted by the ICC in 2008) have to be careful about their travel arrangements.
 
 
From what date can offences be prosecuted?

A key question is: will the ICC be able to prosecute individuals for past offences or only for those committed after the Rome Statute enters into force for Palestine on 1 April 2015.  Article 11.2 of the Statute says that for states joining today
 
“the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State”
 
On the face of it, this means that the ICC can only prosecute individuals for offences committed in Palestinian territories on or after 1 April 2015 – and therefore, for example, Israeli military personnel can not be prosecuted for offences committed during Israel’s military offensive against Gaza in July and August last year.
 
However, Article 11.2 contains the rider: “unless that State has made a declaration under article 12, paragraph 3”.  A declaration of this kind is a mechanism whereby a state which is not a party to the Rome Statute can accept the ICC’s jurisdiction on a limited basis.  The Palestinian authorities have sought to take advantage of this rider by making such a declaration on 1 January 2015 “declaring Palestine's acceptance of the jurisdiction of the ICC since 13 June 2014” (see ICC press release, 5 January 2015).
 
This is not the first time that the Palestinian authorities have attempted to grant the ICC jurisdiction by means of a declaration of this kind.  In January 2009, during Operation Cast Lead, the first of Israel’s three major military assaults on Gaza, they made a similar declaration seeking to grant the ICC jurisdiction from 1 July 2002, when the Rome Statute came into force.  It took the ICC Prosecutor over three year to decide that the Court could not accept the jurisdiction offered.  The decision hung on whether or not Palestine was a “state” within the meaning of Article 12.3.  In April 2012, the Prosecutor concluded that he hadn’t the competence to make that decision, which was a matter for the UN Secretary-General.
 
Since then, however, the situation has changed dramatically – on 29 November 2012, the UN General Assembly voted by 138 votes to 9 to grant Palestine observer rights at the UN as a "non-member state".  As a result, the current Prosecutor, Mrs Fatou Bensouda, has decided that Palestine is now a “state” within the meaning of Article 12.3 and the Court can accept its offer of jurisdiction.  That being so, she has “opened a preliminary examination into the situation in Palestine” (see ICC press release, 16 January 2015). 
 
The press release went on to explain:
 
“A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation …”
 
and there is no deadline for reaching such a determination.  Rather:
 
“Depending on the facts and circumstances of each situation, the Office will decide whether to continue to collect information to establish a sufficient factual and legal basis to render a determination; initiate an investigation, subject to judicial review as appropriate; or decline to initiate an investigation.”
 
An essential first step has been taken, which may lead to an investigation and eventually to the indictment of individuals – but that may be years away.
 
(*)
 
A further point: the Palestinian declaration accepted ICC jurisdiction from 13 June 2014, the date that Israel began a massive crackdown in the West Bank after three Israeli teenagers went missing and were subsequently found murdered.  By backdating the acceptance of ICC jurisdiction to this date, the Palestinian authorities hope that it will be possible for the ICC to indict Israeli security personnel for actions on or after that date, including during Israel’s military assault on Gaza in July and August.
 
But it is by no means certain that the Court will accept this backdating.  As we saw above, when a state accedes to the Rome Statute, under Article 11.2 of the Statute the Court cannot try individuals for offences committed before the date of accession.  In other words, no backdating is permitted when a state grants the Court jurisdiction by accession.  This makes it far from certain that backdating will be permitted when a state grants the Court jurisdiction by a declaration.  If not, the Court will only be able to prosecute individuals for actions on or after 1 January 2015, when the declaration was made.
 
 
What actions constitute a crime against humanity/war crime?

Article 7 of the Rome Statute lists the actions that constitute a crime against humanity.  A key feature of such a crime is that it is an act “committed as part of a widespread or systematic attack directed against any civilian population”.  Such acts include murder extermination deportation or forcible transfer of population
torture the crime of apartheid.
 
Article 8 of the Rome Statute lists the actions that constitute “a war crime”.  They include wilful killing torture or inhuman treatment extensive destruction and appropriation of property, not justified by military necessity unlawful deportation or transfer or unlawful confinement taking of hostages intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities intentionally directing attacks against civilian objects, that is, objects which are not military objectives and many, many more. 
 
Transfer of civilian population into occupied territory One of the latter, in Article 8.2(b)(viii), is “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.
 
Obviously, this is of particular relevance in this case because since 1967 Israel has transferred nearly 600,000 of its own citizens into territory it occupies east of the Green Line in the West Bank, including East Jerusalem.
 
Of course, Israel maintains that it is not “occupying” this territory.  In this, it is flying in the face of the opinion of the UN Security Council and other UN organisations, including the International Court of Justice (which is, in the words of the UN Charter, “the principal judicial organ of the United Nations”).  In its July 2004 Advisory Opinion Legal consequences of the construction of a wall in the Occupied Palestinian Territory it left no doubt that Israel was the Occupying Power in this territory under international law:
 
“The territories situated between the Green Line … and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power.  Subsequent events in these territories …  have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.” (Paragraph 78)
 
Since successive Israeli governments have authorised the transfer of large numbers of Israeli citizens into territory east of the Green Line, there is very little doubt that war crimes, as defined by the Rome Statute, have been committed – and will continue to be committed for the foreseeable future, since it is inconceivable that any future Israeli government will cease this colonisation project voluntarily or that sufficient international pressure will be applied to make it cease.
 
In the light of this, there is a prima facie case that Israelis responsible for this colonisation project, including the present Prime Minister, are guilty of war crimes and it may be that Americans and others who provide funds for the project could be prosecuted for aiding and abetting their war crimes.
 
 
How does an ICC investigation/prosecution come about?
Under Article 14 of the Rome Statute, a state party “may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed” with a request that the Prosecutor begin an investigation.
 
(A “situation” of this kind may also be referred to the Prosecutor by the Security Council passing a resolution under Chapter VII of the UN Charter, as was done in respect of Darfur in Sudan in 2005 and of Libya in 2011 – and could have been done in respect of Palestine at any time since the Rome Statute came into force on 1 July 2002.)
 
No doubt, Palestine is preparing to refer to the Prosecutor Israel’s colonisation project and actions by Israeli military personnel in Gaza last summer, along with vast amounts of supporting documentation.  But it is up to Prosecutor and the Court to decide whether to decide whether to initiate an investigation.
 
 
The Mavi Marmara referral

It is worth noting here that in May 2013, the Union of the Comoros, which is a state party to the Rome Statute, referred the Israeli military assault on the Mavi Marmara ship on 31 May 2010 to the Prosecutor.  This assault took place in international waters, when it was part of a humanitarian aid convoy to Gaza, and resulted in the deaths of 9 civilian passengers.  The Mavi Marmara was registered in the Comoros Islands and under Article 12.2(a) of the Rome Statute, the ICC has jurisdiction in respect of crimes committed, not only in the territory of a state party, but also on ships or aircraft registered in a state party.
 
In November 2014, without opening an investigation the Prosecutor concluded that “there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court … were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the ‘Gaza Freedom Flotilla’ on 31 May 2010”.  Nevertheless, she decided that “the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.
 
It is true that Article 17.1(d) of the Rome Statute requires a case to be “of sufficient gravity to justify further action by the Court”, but one is left wondering if the Prosecutor would have come to a different conclusion if the object of the complaint had been nationals of a powerless African state.  It was the first time that a referral by a state party to the Prosecutor was rejected without an investigation being initiated.
 
 
Can an ICC investigation/prosecution be aborted/delayed?

Could the ICC Prosecutor decide that the cases likely to arise from an investigation into Israel’s colonisation project would not be of “sufficient gravity” to justify the ICC pursuing them?  It seems unlikely, since the project is of enormous significance and isn’t going to cease any time soon – and there doesn’t seem to be any measures that Israel can take to block an investigation.
 
However, it may be possible for Israel to thwart, or at least delay, ICC investigations into actions by Israeli military personnel.  This arises from Article 17 of the Rome Statute, which expresses the fundamental principle of the ICC that it may only exercise jurisdiction where national legal systems fail to do so.   Thus, for example, Article 17.1(a) states that a case is “inadmissible” as far as the ICC is concerned if it “is being investigated or prosecuted by a State which has jurisdiction over it”.  This means that it may be possible for Israel to thwart, or at least delay, ICC investigations into actions by Israeli military personnel by starting its own investigations – and not being in a hurry to bring them to a conclusion.
 
(This delaying procedure would not be possible with regard to ICC cases related to Israel’s colonisation project, since it would be impossible for Israel to pretend that it was investigating individuals who are putting state policy into effect).
 
There is another way in which an ICC investigation or prosecution can be deferred and that is by the Security Council passing a resolution to that effect.  This is provided for under Article 16 of the Rome Statute, which states:
 
“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
 
So, indefinite deferral is theoretically possible, but it is unlikely that such a resolution would pass even once, since it needs at least nine votes in favour and no votes against from any of the five permanent members of the Security Council.
 
 
Israel/US/EU reaction

It was no surprise that Israel condemned Palestine’s decision to accept the jurisdiction of the ICC and it is imposing the usual punishment on Palestinians for doing so – it is refusing to hand over $127 million of tax revenue to the Palestinian Authority, revenue that it has collected on behalf of Palestine under the Paris Economic Protocols it signed in 1994 after the Oslo Agreement.
 
Chief Palestinian negotiator, Saeb Erekat, delivered a perfect response to Israel’s complaints, saying that “those who are concerned about courts should stop committing crimes”.
 
It was no surprise either that the US criticised the Palestine’s decision, a State Department spokesman saying that the Palestinian action was “counterproductive”, that it “does nothing to further the aspirations of the Palestinian people for a sovereign and independent state” and “badly damages the atmosphere with the very people with whom they ultimately need to make peace”.
 
Some people may think that the non-violent Palestinian act of according jurisdiction to an international court is a good deal less damaging to the atmosphere between Israel and Palestine than Israel’s military assault on Gaza last summer during which 2,131 Palestinians including 501 children were killed (see UN OCHA report of 4 September 2014) – and the US didn’t utter a word of criticism about that.
 
At the time of writing, the US has not declared any intention to punish Palestine for its action, by, for example, reducing US aid, which currently stands at $440 million a year.  However, at a briefing on 5 January 2015 a State Department spokeswoman said “obviously there could be implications on assistance”.  Surprisingly, the US has criticised Israel for withholding Palestinian funds: when asked at the same briefing if the US opposed this, the spokeswoman replied that “we’re opposed to any actions that raise tensions, and obviously, this is one that raises tensions”.
 
The EU has refrained from criticising Palestine for joining the ICC in the face of EU opposition.  A statement from the EU foreign policy chief, Federica Mogherini, on 6 January 2015 merely said enigmatically:
 
“Recent steps taken by Palestinians and Israelis could aggravate the already tense situation on the ground and bring them further away from a negotiated solution.”
 
The “recent steps” were Palestine’s ICC application and Israel’s withholding of Palestinian revenues in response.  The statement goes on to criticise the latter, noting that Israel’s actions “runs counter to Israel's obligations under the Paris Protocol”.
 
 
David Morrison

Opinions expressed in various sections are the sole responsibility of their authors and they may not represent Al-Jazeerah & ccun.org.

editor@aljazeerah.info & editor@ccun.org