Tag Archives: ICC

The ICC Issues Arrest Warrants for Netanyahu and Gallant: Winning the Legitimacy War

24 Nov

Richard Falk

The ICC delayed the formal issuance of ‘arrest warrants’ for top Israeli

political leaders directing the genocidal assault on Gaza for six months although

it responded affirmatively to a comparable request involving Putin’s alleged criminality in

Ukraine in less than a month after the Russian attack.

Double standards to be sure, yet ICC action is a welcome alternative to either denying the Chief Prosecutor’s recommendation of May 20 or delaying indefinitely to its decision on whether the arrest warrants should be issued. The ruling of ICC Pre-Trial Chamber 1 to issue arrest warrants for the Israeli Prime Minister, Benjamin Netanyahu, and the Minister of Defense, Yoav Gallant, in view of the overwhelming evidence of their responsibility for severe international crimes comes as big news. It is a mighty symbolic blow against geopolitical impunity and in favor of accountability.

If this ICC action is assessed by its ability to sway Israel’s short-term behavior in directions more in accord with international law, as well as to the majority views prevalent in the UN, the Global South, and world public opinion this ICC decision the cynical dismissal of Sub-Changer as ‘an empty gesture.’  Some argue that the tangible impact of arrest warrants, if any, will be to alter Netanyahu’s and Gallant’s future travel plans slightly. The decision obliges the 124 member states of the ICC to carry out arrests of these individuals should they be so bold as to venture onto their territory. Non-parties, including the US, Russia, China, Israel and others are not subject to this enforcement obligation. We should remember that Palestine is a party to the ICC treaty and thus if either Netanyahu or Gallant were to set foot in the Occupied Palestinian Territories of Gaza, West Bank, and East Jerusalem the governmental authority in Ramallah would be legally obliged to make arrests. Yet it would test the bravery of the Palestinian Authority far beyond its past behavior if it dared arrest an Israeli leader, however clear the obligation and no matter how strong the evidence against him. This assessment of tangible effect misses the point of why this is an historically significant development both for the Palestinian struggle and the credibility of the ICC.

Before putting forth an argument as to why this ICC move is a historic step, it seems responsible to acknowledge several important limitations:

                  –First and foremost, although the Prosecutor’s recommendation to the Sub-Chamber of the ICC was made in May (or eight months after Oct. 8th), it did not include even a mention of ‘genocide’ among the crimes attributed to these two leaders, which is of course the core criminality of the Israeli onslaught, as well as expressive of their role in the enactment of this ultimate international crime;

                  –Another notable limitation is the long ICC delay between recommending the arrest warrants and Sub-Chamber ruling. This was substantively inexcusable in view of the dire emergency conditions of devastation, famine, and suffering existing in Gaza during this interval, and aggravated by Israel’s obstruction of humanitarian assistance provided by UNRWA and other international aid and humanitarian organization to the Gazan civilian population in desperate need of food, fuel, electricity, potable water, medical supplies, and health workers.

                  –Also, the ICC decision remains subject to jurisdictional challenge once the arrest order has been finalized. The Nov 20 acceptance of jurisdiction is in a formal sense provisional as Israel’s objection to ICC jurisdictional authority was made prematurely, but can be made without prejudice despite its denial in the future now that the ICC has acted.

                  –Even in the highly unlikely event that arrests will be made, it is improbable that detention could be implemented, given the US Congressional legislation authorizing the use of force to liberate detainees from ICC captivity if US nationals or the accused as here are nationals of allies. There have been already intimations that some members of the US Senate and House will seek sanctions against the persons of the Chief Prosecutor, Karim Kahn, and the members of the ICC Pre-Trial Chamber. Such initiatives if actualized will further weaken the US reputation as supporter of the Rule of Law in international affairs.

Despite these formidable limitations, this invocation of the procedural authority of the ICC is itself a grim reminder to the world that accountability for international crimes should pertain to all governments and that the evidence against these two Israeli leaders has been assessed by objective and professionally qualified experts under the auspices of an international institution that is empowered by a widely ratified treaty to make a determination on the legal appropriateness of making such a controversial decision.

The ICC like the ICJ has no independent enforcement capability other than compliance by member states, but because the ICC is not part of the UN it at least are rendered, unlike the ICJ without being subject for enforcement to a right of veto that has paralyzed the UN Security Council throughout this period of Gaza violence. This does not mean that implementation will follow or that prosecution will go forward much less that future findings of guilt will be respected, in the event that they occur, as the older more venerable ICJ has found out to its dismay since its establishment in 1945. But both the ICC and ICJ in their judicial proceeding are formally free from ‘the primacy of geopolitics’ that so often overrides the relevance of international law or the UN Charter in other non-judicial venues.

An outcome of the sort that the ICC reached regarding the arrest warrants is a direct and authoritative application of international law, and in that sense produces no counter-arguments but it is subject to crude denunciations. Netanyahu calls the ICC ruling ‘absurd’ and a manifestation of antisemitism, while the American lame duck president, Joe Biden, has called the issuance of these arrest warrants as ‘outrageous’ but never tells the world why. This kind of verbal Israeli lashing of the ICC has in the past been directed at the UN itself in response to criticism of its policies in the Occupied Palestinian Territories.

The lasting and redeeming significance of the issuance of the arrest warrants is to help Palestine win the ‘legitimacy war’ being waged to control the high ground of law, morality, and public discourse. Political realists that continue to dominate foreign policy elites in important states dismiss international law and normative considerations in global security and geopolitically inflamed settings as a misleading distraction to interactions that are best guided, and in any event will be determined by the interplay of military force.

Such thinking overlooks the reverse experience of all anti-colonial wars in the prior century that were won by the weaker side militarily. The US should have learned this lesson in the Vietnam War in which it dominated air, sea, and land battlefields and yet lost the war. The weaker side militarily prevailed, that is, it prevailed in the legitimacy war, which more often than not has controlled the political outcomes since 1945 in internal conflicts waged around issues of national and ideological identity of sovereign states.  These outcomes reflect the decline in the historical agency of militarism even in the face of many seemingly breakthrough technological innovations in warfare on the part of aggressor states.

For this reason, yet mainly without this line of analysis, more and more close observers have come to the surprising conclusion that Israel has already lost the war, and in the process endangered its future security and prosperity, and possibly even its existence. In the end Palestinian resistance may achieve victory despite paying an unspeakable price exacted by such a horrifying genocidal assault. If this outcome comes to pass, one of the international factors that will be given attention is this ICC Sub-Chamber unanimous decision to issue arrest warrants against Netanyahu and Gallant. In this defining sense the frustrations with implementation of these arrest warrants are not the end of the story, but

are part of a larger historically unfolding narrative of ‘hope against hope.’ ##

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Militarism and Genocide in Gaza: The Bloody Signature of Western Decline

9 Oct

[Prefatory Note: The text of an interview with an independent Turkish journalist, Naman Bakac, published in Turkey on Sept. 26, 2024. Somewhat modified for this online publication.]

1.Almost all fundamental rights and principles are clearly being violated in the Palestinian territories: from the right of Palestinians living in occupied lands to self-determination, to the right of representation, which leads to the murder, imprisonment, and exile of their freely elected representatives; from the right to shelter as tents are deliberately bombed, to the right to food as Palestinians are deliberately left to starve; from sexual abuse of prisoners to torture, and from there to the right to housing as homes are demolished. However, international law and the community have been unable to prevent these violations to date. What legal texts are missing to stop these systematic violations? Which institutions are absent? If legal texts, legal institutions, and decision-making mechanisms cannot resolve this, what other tools and methods should be activated to prevent these systematic violations of rights?

Response: The Palestinian ordeal is not a consequence of the shortage or inadequacy of legal norms or mechanisms for their enforcement. The primarily obstacle to imposing adverse consequences in reaction to gross and transparent Israeli criminality is one of political will, especially on the part of dominant states in the Global West and to a lesser extent on the part of leading Arab neighbors, i.e. Saudi Arabia, Egypt.

It is only countries from the Global South that have been willing to have recourse to the existing international judicial procedures, the ICJ and ICC. The ICJ, the judicial organ of the UN, has a strong reputation for political independence and persuasive interpretation of international law, and its pronouncements are influential, even if they are procedurally cumbersome, often take years from start to finish., lack enforcement capabilities or mandates, and have a mixed record of compliane.

The ICC is a more recent institution, and nor part of the UN System. It does fill a serious gap in the legal coverage accorded to accountability for individuals accussed of committing serious international crimes. The ICC is further weakened by the failure of several leading states to become parrties to the Rome Statute, which is the legal framework governing ICC activities. The ICC also has never achieved legitimacy in the Global South because of its early image of being mainly preoccupied with crimes of leaders in sub-Saharan Africa, which was responsible for its West-centrric reputation. The ICC has seemed reluctant to hold accountable individuals associated with powerful states in the Global West, which include countries in Westernn Europe, North America, and currently Israel. By recommending the issuance of arrrest warrants to three top Israeli leaders (somewhat offset in political messaging by simultaneously making a reccomendation of arrrest warrants for the three top Hamas leaders, the ICC prosecutor made a gesture to challenge geopolitical impunity. So far the ICC sub-chamber that has the sole responsibility to issue arrest warrants has not yet acted. It has give to suspicion that the ICC is stalling in its treatment of these controversial recommenndations, due to reliable reports of pressure by Israel and allies to delay its decision, or better, reject the prosecutor’s recommendation on a variety of contrived grounds centering of the dual grounds of Israel not being a member of the ICC and it would be wrong to appear to criminalize a reasonable Israeli claim of self-defence.

The secondary obstacle is the degree to which World Order continues to be based on a hybrid arrangement of hybrid and contradictory relations of law to power: the majority of states are subject to international law in the area of peace and security, while a few, including the UN P5 (and their strategic friends) occupy a position that allows such governments to privilege strategic interests if these clash with legal obligations in UN settings. This hierrarchy is indirectly acknowledged by the veto power allowing the most dangerous states in 1945 to paralyze UN responses to their criminality and even to that of their friends and allies.

The Western support for Israeli genocide is itself criminal, as complicity is criminalized in the Genocide Convvention, but it is virtually exempt from critical scrutiny at the UN or elsewhere. A domestic court in the US has had been the cite of a judicial action to stop the Gaza Genocide brought by a çivil society organization, Center for Constitutional Rights, relying on a Universal Jurisdiction rationale. It has been so far been blocked in this legal pursuit by a dubious internal doctrine that views US foreign policy initiatives as not subject to adjudication due to a so-called Political Questions doctrine. This doctrine rests on an anachronistic view of the Separation of Powers that views Foreign Policy as belonging exclusively in the Executive Branch of Government, and therefore is not subject to judicial scrutiny. This overlooks the growth of international legal authority as a constraint on national behavior even if conducted as foreign policy.

2.Despite the world witnessing, in an unprecedented way, one of the most brutal massacres in history, with live footage, after Gaza can we still talk about international humanitarian law, international human rights, or the Pax Americana order established after World War II? Doesn’t the “Rule of Law in the Global Village,” the title of one of your books, come to an end after Gaza? Or should the path of reform regarding the United Nations, international law, and world order, as President Recep Tayyip Erdoğan has been advocating for years, be built?

Response: Although the first-order implementation of international humanitarian law, human rights law, annd Pax Americana failed at the governmental and international institutional level, their existence was important in awakening çivil society to the gross injustices and crimes that have been inflicted on the Palestinian people. Changes in the public discourse are important, as well, branding Israel, Israeli leaders, and complicit governments as perpetrators of genocide in a particularly overt and sadistic manner. By such reasoning Israel should be sanctioned for violating the Genocide Convention, its leaders be criminally proscecuted, and complcit governmentss be at least censured. This should make Israel and its supporters leading candidates for çivil society pressure to impose boycotts, to express moral and legal outrage, and to suspend Israel from participation within the framework of legitimate sovereign states until a dynamic of peace and reconciliation takes the place of war and genocide. Israel is guilty of unspeakable crimes and a defiance of respect for the norms of civilized behavior. Such an assessment is not meant to excuse Hamas, and its allies, for its alleged atrocities, although provoked and of a dramatically smaller impact than Israel’s post October 9th behavior.

Civil society is a court of last resort that becomes relevant, as here, when the established processes of law are unavailable, or worse, defied. In this regard, the established of the Gaza Tribunal Project to express opposition to what Israel and the West have done since October 7 and to give voice to the disappointment of citizens of conscience around the world that the normative structure of world order, including the UN, could not protect the vulnerable, essentially innocent and much abused Palestinian civilian population and respond to Palestinian grievances with respect to basic rights.

3.You have written more than 10 books on world order, global order, and international law. You also served for many years as the North America Director of the “World Order Models Project.” In nearly 100 years since the fall of the Ottoman Empire, as you put it, “the genocide is a continuation of the Apartheid in Palestine.” What kinds of gaps has the Palestinian genocide exposed in the world order paradigm? What truth has it revealed about the foundation upon which the world order is built? After Gaza, what kind of world order and international legal order do you foresee to prevent humanity from experiencing genocides like Srebrenica, Rwanda, and Gaza again? What is your belief and hope in this regard?

Response: If world order persists in its present form it seems almost inevitable that gruesome repetitions of genocide and other severe atrocities in the future. To transform the structures of authority now entrusted with the management of global security ensures a continuation of behavioral patterns that produce genocide, apartheid, aggression, and are responsible for many economic and ecological crimes will require an unprecedented movement from below by peoples organized through çivil society activism, insisting on a framework of law that has the capacity and will to enforce compliance on the strong as well as the weak. Such a development, admittedly utopian, alone could do away with geopolitics whose defining characteristic is a manageriall approach to global security that treats law and morality as irrelevant when in conflict with strategic interests of the Great Powers, and is by practice as well as theory iss dedicated to geopolitical rivalry that reduces law and morality to the level of propaganda and a policy instrument in the foreign policy toolbox useful to denounce the behavior of adversaries yet irrelevant as a constraint..

As for alll those books. I have been around a rather long time. The world changes and so do I. It is a matter of listening to others and being attenntive to what is happening. In this period of global interactive intensity it is especially important to learn from those who speak from other cultural spaces. Listening does not means abdicating judgment, but it does require making the effort to respond knowledgeably, which does a constant effort to detect and purge the subtle biases of your educational, discursive, and personal background. This is most difficult for we Americans who are trapped between their ‘exceptionalism’ and a dysfunctional militaritst sense of history. We are now living at a time of radical new technological and ecological challlenges that are being addressed, if at all, without taking accoount of long-term thinking, risks, harns, and solutions. We have entered an historical period of unprecedented species hazard, and most national elites are continuing blandly as if ‘business as usual’ was their job description. In some cases, even worse is to acknowledge in rhetoric the dangers that are intensifying, and then acting as if these fundamental challenges do not necessitate profound changes in how we think, feel, and act both individually and collectively.

As for alll those books. I have been around a rather long time. The world changes and so do I. It is a matter of listening to others, especially those who speak from other cultural spaces, and making the effort to respond, which requires learning to address the subtle biases of your own  educational and personal background. I have found this to be most difficult for Americans who are trapped between their claims of ‘exceptionalism’ and a dysfunctional militaritst sense of history. We are now living at a time of radical new technological and ecological challlenges that are being addressed, if at all, without taking accoount of long-term thinking and solutions. This is a time of unprecedented species hazard.    

4.As you know, Palestinian territories before 1967 were occupied by Israel. Regarding the occupied territories, the United States, the European Union, Russia, China, Turkey, the United Nations, and some Islamic countries are advocating for Israel to withdraw to the 1967 borders and for a two-state solution. Does this mean that the lands that Israel seized before 1967 through terror, violence, and Nakba are being accepted? Doesn’t this imply that the forced displacement of Palestinians before 1967, and the massacres and raids carried out by Jewish militias in Palestinian villages, are either ignored or legitimized? How do you assess the period from 1917 to 1967 in terms of international legal principles, the global legal order, and the founding mission of the United Nations? Moreover, since Israel does not accept the two-state solution, how is it that international law, institutions, and countries continue to accept it?

Response: I share your overall assessment of an exceedingly llimited willingness to redress the historic wrongs initially inflicted on the Palestinian people by way of a pre-Holocaust colonialist move on the part of the UK, known to the world as the Balfour Declarration, which was the source of the two original wrongs embedded in the Zionist Project, culminating in the Holocaust and its aftermath: first, an Orientalist disregard of non-Western societal wellbeing. It took the form of solving the problems in Europe caused by antisemitism and Jewish presence by encroaching on the sovereign rights of a non-consenting Muslim majority resident population in Palestine. And secondly, a Zionist resolve based on a politically self-serving biblical interpretation that created a Jewish entitlement to make Palestinians persecuted and unwanted strangers in their existential homeland. By such a logic the surviving native peoples in almost every part of the world dispossessed of their land and sovereignty rights would have an unassailable right to their indigenous pre-modern forms of sovereignty.

Given this background, the UN played its own part in furthering the Western-centric solution in the years after World War II, by way of proposing ‘partition’ of Palestine in a period dominated by the sense of guilt of the liberal democracies and effective propaganda by the Zionnist Movemennt  as well as superior military training, weaponry, and tactics in the 1948 War. For the post-1945 period, Israel emerged as as an expansionist nuclear-armed ‘settler colonial state’ that existentially rejected the co-existence, partition, compromise solutions as put forth in a biased framework controlled by the US, a most partisan intermediary. Israel for public relations reasons pretended to go along with this global consensus while acting to undermine it by its settlements, coercion, land-grabbing, and oppressive apartheid regime of control after 1967. During this process liberal Zionism, the UN, Western countries withheld criticism of Israel’s transparently defiant behavior, and continued their stubborn ineffectual adherence to the mantle of internationalism by way of the two-state mantra dismissing Palestinian resistance and even gestures of accommodation as forms of ‘terrrorism’ to be rejected in practice, colliding with the hidden Zionist vision of later became known as ‘Greater Israel.’ In the interim Israel became useful to the West. It lent muscle and diplomacy to the Euro-American regional priorities of retaining access to Gulf energy reserves at acceptable prices and resisting the spread of Islamically oriented nationalism.

The Gaza Genocide was the latest chapter in the struggle revealing political alignments in unexpected ways: the unity of the Western liberal democracies in their complicit response to such criminality; the passive response of Israel’s most prominent Arab neighbors, prompted by fear of Israel, hostility to Iran, and the links between governing elites and non-Middle East geopolitical actors, mainly the US. Given the size and extremism of the Israeli settler movement, especially in the West Bank, it seems politically naive and irrelevant to advocate a two-state solution even if it requires a Palestinian willlingnesss to swallow pre-1967 territorial and resource injustices and land-grabbing. Overall, the story of the West in the Middle East is a shameful chapter in the long narrative of Western encroachment on the most basic rights of non-Western peoples.   

5.While reading your book on “Humane Global Governance,” which is still in the idea phase and gives you hope, I couldn’t quite distinguish whether humanity or religion is the central focus of globalization. Despite your claim that globalization and secularism are in crisis, do you believe that religion should be utilized or that a humane globalization should be grounded in religion? Since your book also includes the chapter “Why and to What Extent Religion?” let us ask: Why is religion a dynamic factor in your model?

This question poses one aspect of why prescriptive writing about the geopolitical management of global security and relations among dominant states is so contingent on historical circumstances that evolve over time. In certain times and situations religion seems to have emancipatory potential and in others its theocratic governance and exclusionary policies seems dystopian. The same extremes can be observed in the role of secularity as national and global phenomena, which has given rise to visions of peace and justice but by way of geopolitical ambition and technological innovation has caused widespread conquest, exploitation and corruption in what was widely considered a post-colonial world following a wave of successful anti-colonial struggles. I have written of ‘colonialism after colonialism’ as best capturing the excesses of Western militarism and capitalism in this period between the end of the Cold War and the Gaza Genocide. It raises a new haunting question ‘What comes next for specific nations and for humanity as ideal and reality?’

6.In your book “Globalization and Religion,” you briefly address a very intriguing question as a chapter title. I would like to ask you to elaborate on it. The question in the book, if I may quote directly, is: “Does the Western secular state have a future?” If so, why? If not, why not?

Response: This kind of fundamental question requires a book if I were to attempt a comprehensive assessment. A brief response refers to the anti-democratic and regressive trends toward autocratic governance at home and anti-internationalism in foreign policy. Whereas ecological threats and technological developmentss are posing increasing threats of catastrophic futures, political agendas of leading governmennts are preoccupied with the short-term satisfactions and frustrations of the citizenry in the face of growing inequality and of governing elites in terms of geopoliticall rivalry and a stagnancy or worse for Western middle class life styles and expectations. It amounts to shifting ecological and technological problem-solving to future generations that will only survive if new political agendas are enacted under the influence of strengthened structures of global governance that are neither secular nor theocratic, but normative in a radical values-driven format of global-democacy-to-come. Such a benevolent future would depend on governmental elites renouncing narrow militarized forms of security.    

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Will the ICC Act? The Netanyahu/Gallant Arrest Warrants are a Truth or Dare Moment?

17 Jul

A Shaky Start for the ICC

Since its establishment in 2002 the International Criminal Court has struggled tofind a path to legitimacy. Its establishment was a triumph for the Global South and civic activism in extending the potential reach of international criminal law to the countries of the Global North. ICC prospects were limited from the outset by its organizational identity being situated outside the formal UN framework and even more so, by the failure of the geopolitical ‘big three’ of the US, China, and Russia to join, and in relation to present concerns, by Israel’s refusal. The ICC has 124 members including the liberal democracies in Western Europe, all states in South America, most in Africa, and  many in Asia. Despite this wide representation it has struggled throughout its existence for credibility, influence, respect, and legitimacy.

In its early years the ICC was deservedly blamed for concentrating its activities on the alleged wrongdoing of sub-Saharan African leaders, suggesting a racialist bias. Then later on, in relation to US and Israel’s alleged crimes in Afghanistan and Occupied Palestine, the ICC prosecutor sat on the files containing abundant evidence justifying at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted, and by doing nothing, an impression was formed that the ICC was so weak and insecure that it could not hope to resist geopolitical, Western backdoor manipulations. ICC inaction in this instance was partly attributed to the radical ultra-nationalism of the Trump presidency that had the temerity to impose personalized sanctions on the prosecutor of the ICC should the tribunal open a case against either the US or Israel. Such sanctions were abandoned when Biden became president but the underlying hostility to ICC accountability.

The story goes on, but with new twists. When Russia attacked Ukraine in early 2022, the ICJ was called upon by the NATO West to act decisively with unaccustomed haste. The ICC obliged by expediting its procedures to move forward on an emergency basis to make a determination as to whether Putin and others should be immediately indicted for war crimes and arrest warrants issued. This unusual request for haste appeared to serve the geopolitical interests of the West, again somewhat racialized by the fact that ICC activism was on behalf of Ukraine a majority white, Christian victim of alleged war crimes. Such haste and pressures from the West had never before in the brief existence of the ICC been so enlisted. The ICC obliged, further compromising its credibility, by issuing arrest warrants for Putin and a close assistant, confirming the suspicion that it could be bullied even by non-parties to the Rome Statute that states adhered to if seeking status as parties, active in the work of the ICC.

Such haste with respect to Russia was not at all evident in relation to Gaza, despite the far greater urgency, considering the magnitude and severity of the unfolding humanitarian catastrophe facing the Palestinian people. To date it has withheld a meaningful response to the legal effort of Chile and Mexico to have the ICC investigate allegations against Israel. These two governments were seeking an ICC investigation and appropriate responses to the violations of the Genocide Convention by Israel in the course of carrying out its retaliatory attack on Gaza after October 7 that seemed designed to ignore the civilian innocence of the Palestinian people in Gaza in a prolonged process of imposing collective punishment on an occupied people, itself a violation of Article 33 of the 4th Geneva Convention.  This difference in ICC responses to these two initiatives reinforced an impression of double standards in the tribunal’s treatment of allegations of international crimes. In this instance the behavior of the ICC contrasted unfavorably with the laudable efforts of ICJ to do what it could do by way of declaring the relevant international law. The effectiveness of the ICJ Interim Orders was hampered by its inability to induce compliance by Israel or enforcement by the UN. These unfortunate frustrations were also attributable in part to the complicity of the liberal democracies in aiding and justifying Israel’s response to the Hamas attack.

Is the ICC Escaping from its Bad Reputation Thanks to Israel?

Against this background, it was inevitable that the ICC would be widely viewed as a weak institution, above all by not initially obtaining participation or cooperation of such important states as the US, Russia, China, and of course, Israel. In this regard, the ICC was most unfavorably compared to the International Court of Justice (ICJ) to which all members of the UN were automatically parties. The ICJ was widely respect for maintaining a high degree of professionalism and juridical dignity in the course of assessing the merits of legal disputes referred to the tribunal for adjudication even when geopolitical strategic interests were present. This positive reputation of the ICJ was greatly enhanced by its near unanimous Interim Orders of January and March 2024 granting several Provisional Measures requested by South Africa to impede Israel’s behavior that seemed to lay a plausible basis for concluding that Israel was guilty of ‘genocide’ in Gaza, although no such conclusion was reached, and the substantive legal status of the genocide allegation deferred until the ICJ rendered its decision on the merits.

Israel was also legally ordered by the ICJ to allow humanitarian aid to reach Palestinian civilians without interference, at least until the final judgment on the merits of the genocide contention could be rendered.  This was expected to happen in years hence after the ICJ had an opportunity to respond to further elaborate oral and written pleadings by the parties and those actors given leave to intervene. This process was expected to last for several years, quite likely reducing the existential relevance of the ICJ judgment as the killing would have hopefully have stopped long before the Court had time to rule. The decision would still have jurisprudential value as an authoritative interpretation of the crime of genocide, and might give rise to the establishment  of preventive and early response mechanisms in anticipation of future genocides. It is possible that the passage of time would reduce the intensity of partisan geopolitics, creating a better atmosphere for cooperative moves to strengthen the global normative order against futue outbreaks of genocidal violence.

Despite the cautious legal professionalism of the ICJ a nearly unanimous panel of the seventeen judges found Israel sufficiently responsible for ‘plausible genocide’ to grant Provisional Measures in response to South Africa’s request. [Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel, ICJ Orders, 192, 20240126 & 192 20240328, ProvMesures)]; [see also systematic assessment of Special Rapporteur on Occupied Palestine for the UN Human Rights Council, Francesca Albanese, ‘Anatomy of a Genocide,’ A/HRC/55/73, 25 March 2024].

These orders legally require Israel to take a variety of steps to stop engaging in genocidal behavior including interference with efforts to deliver food and medicine to starving and desperate Palestinians huddled together in dangerously crowded collective misery in the small city of Rafah on the Egyptian border. The prospect of bloody extensions of genocide are daily proposed by Israeli leaders in their murderous attacks on Rafah, much overcrowded condition resulting from sheltering large numbers of Palestinian civilians. Israel also issued a series of evacuation orders purporting to shift Palestinians to ‘safe zones,’ but in practice subjecting even these areas in Central Gaza to devastating attacks. This pattern of evacuation orders and continuous attack has  put the finishing touches on Israel’s actions that are more and more widely perceived as repudiations of the minimal moral sensibilities of a common humanity as well as carrying out mortal threats to the life prospects of Palestinians now estimated at over 186,000 by the highly respected medical journal, Lancet. This higher figure than the death statistcs compiled and verified by Gaza Public Health sources the direct Israeli violence, results from counting as deaths attributable to the attacks, Palestinians missing as presumably buried beneath piles of rubble, as well as the deaths caused by starvation, malnutrition, inadequate sanitation.  Using the Lancet estimate of the proportionate loss of life in Gaza (without taking account of injuries, physical and mental) if occurred in US society would amount to 2,900,000 fataities, which is a figure greater than the total loss of American loss of lives in all the wars of the entire 20th century.

A Redemptive Moment for the ICC?

If asked even a week ago, I would have said that Bibi Netanyahu would have been the very last person on the planet to come to the institutional rescue of the ICC, although he did so in a backhanded way. Netanyahu leaped to respond after leaked rumors suggested that the ICC was on the verge of issuing arrest warrants naming Netanyahu, the Defense Minister, Yoav Gallant, and Army Chief of Staff Herzl Halevi. Somehow this prospect so agitated Netanyahu that he chose to go on the offensive in advance of any formal action. His five-minute video tirade against the ICC is worth watching by everyone—

 https://x.com/netanyahu/status/1785362914519519597?s  1-–if only to get a sense of just how potentially formidable the ICC might become if it performs in conformity with its statute. On balance, if it takes Netanyahu’s misplaced sense of outrage to shame the ICC into finally doing its job, so be it.

At the same time Netanyahu’s gross distortions of what was happening in Gaza were extreme enough to provide valuable material to late night TV humorists. The obvious purpose of Netanyahu’s tirade was to whitewash over six months of an unprecedented humanitarian catastrophe imperiling the individual and collective survival of the long abused civilian population of Gaza.  Israeli behavior is so macabre as to be beyond the realm of good-natured, apolitical comedy, providing more of an occasion for weeping and mourning the lost and ravaged lives, and devasted cities, hospitals, places of worship, schools, and UN facilities.

It is within this setting that the ICC seems to have been given an opportunity to act finally in accordance with its mandate, to redeem its reputation for spinelessness, and strike a symbolic blow in the increasingly worldwide struggle to stop Israel’s genocide in Gaza. It is technically possible and undoubtedly politically tempting for the prosecutor to disappoint these expectations by limiting ICC action against Israeli and Hamas leaders to their alleged  pre-October 7 crimes. Such an evasion would be within scope of the 2015 initiative of Palestine, a party to the Rome Statute, which was initiated in such a manner that any crime after 2014 was potentially indictable. Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire followed by a series of restorative acts that could include redress, reparations, accountability, and reconstruction punitive directives.

We are left with the puzzle of why Israel’s reaction to the ICC, in view of its low institutional esteem, was seen as so much more threatening to Israel than the more authoitative directives of the far more established ICJ. Could it be that the criminal character of the ICC and the personal nature of arrest warrants are more of an emotional pushback than  mere legal rulings? Or was the ICC perceived as low hanging fruit, which even Israel took respectful account of the ICJ legal proceeding, and participated both in appointing a prominent Israeli jurist as an ad hoc judge and by taking part in the proceedings by offering a defense of their actions in Gaza.

Netanyahu phrased his key argument against the arrest warrants as posing a mortal threat to the right of democracies to defend themselves against their evil enemies, singling out Iran.  Such a view, reverses the perceptions of peoples throughout the world excepting those governments and right-wing elements that support  Israel in the Global West and the hardest core Zionist ideologues. Increasingly, even in the strongholds of Zionist influence, softer versions of Zionism and more independent Jewish voices are siding with the pro-Palestine protesters, reacting against the stark reality of genocide.

A Concluding Remark

We should all know by now that Israel has no intention of complying with international law no matter what the source of authority. In this sense, the importance of the ICJ and potentially, the ICC, is to strengthen the growing tide of pro-Palestinian sentiment around the world, and an emerging consensus to escalate civic solidarity initiatives of the sort that contributed to the American defeat in Vietnam despite total battlefield military superiority and that doomed the South African apartheid regime. In this regard, the utterances of the most influential international institutions entrusted with interpreting international law have more impact in high profile political situations such as exist in Gaza, than does do either the ICJ or ICC, and for that matter, than even the UNSC. Once again if the Palestine people do finally realize their basic rights, it will be thanks to the resistance of those victimized as reinforced by the transnational activism of people everywhere.  It may be in launching his vitriolic attack on the ICC, Netanyahu was subconsciously delivering his\ mendacious sermon to the aroused peoples of the world. 

We now know that the Prosecutor of the ICC did recommend to a sub-commission in the form of a panel of judges the issuance of arrest warrants for Israeli and Hamas leaders, and so far no decision has been forthcoming. Notable, also, was the omission of genocide from the crimes charged to the Israeli leadership. The US reacted with anger, as exhibited by President Biden, that the ICC Prosecutor seemed to create a moral equivalence between Israel and the terrorist organization, Hamas. Critics of Israel and complicit states in contrast objected to the equivalency but from an opposite position—making an attack justified by Hamas’ right of resistance within the limits of international humanitarian law equivalent to Israel’s 9+ months of genocide.

Perhaps needless to observe, the ICC has yet to deliver its judgment.

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A Judicial Web of Confusion: the ICJ, ICC, and Civil Society or Peoples Tribunals (5/24/24)

4 Jun

An intriguing sideshow during the seven months of savage genocidal violence against the entrapped Palestinian population of an estimated 2.3 million has been the attention given to international law and to international procedures available for its interpretation and enforcement. To begin with, many concerned persons wonder about why there are two distinct tribunals: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Beyond this, for many never exposed to a sophisticated explanation of the process by which international law is judicially implemented the distinction between these two tribunals, both located in The Hague, is far from transparent. This short essay is a simplified introduction to the ICJ and ICC, both indispensable judicial resources of a functionally effective and equitable international legal order. Their positive contributions to law and justice are diminished to the extent that such institutions are subject to geopolitical manipulation.[1] To acquire legitimacy and respect such institutions must operate in an atmosphere of judicial independence. The record to date is mixed and difficult to assess.

At the same time, the pronouncements of these institutions can have major symbolic influence even if their rulings are ignored or violatied. The experience of the ICJ in relation to Israel’s defiance of its Interim Orders in the case of South Africa v. Israel is suggestive, adding a further element of legitimacy to civil society activism in opposition to Israel’s continuation of  the Gaza genocide.

ICJ

All states that are members of the UN are automatically parties to the legal instrument framing the activity of the ICJ known as the ‘ICJ Statute.’ The relationship between the UN and the ICJ is set forth in Chapter XIV of the Charter, Articles 92-96. This Statute frames in technical detail the role, procedure, and scope of concerns of the ICJ. The main function of ICJ is to decide legal disputes between sovereign states as an integral aspect of the UN Charter’s encouragement of ‘the pacific settlement of disputes’ conceived as a principal instrument of war prevention (UN Charter, Articles 2(3), 33-38). The underlying justification for the ICJ is to provide members of the UN with a politically independent and professionally distinguished panel of judges with strong credentials in international law to pronounce upon its relevance and development to the resolution of disputes brought before it. Such a judicial mechanism offers states an alternative to war and political stalemate. This judicial remedy is only available if both sides agree to resolve an international dispute by recourse to the ICJ and the Court decides that the dispute is of a legal character rather than being a political or moral dispute.   

Israel recently contended that there was no legal dispute with South Africa about the interpretation of the Genocide Convention, but the ICJ disagreed by a near unanimous vote of its seventeen judges. The ICJ ruled that a legal dispute between South Africa and Israel existed as to the application of the International Convention on the Prevention and Punishment of Genocide. Article IX authorizes any party to the Convention to submit a complaint relating to a legal dispute to the ICJ for resolution. The ICJ has no jurisdiction with respect to individuals or criminality, its legal authority to adjudicate being limited to states. It also lacks authority to act with respect to political disputes. This sometimes raises troublesome questions as to the distinction between law and politics.

The ICJ as an institution within the UN orbit has no enforcement capabilities of its own. Its legal judgments are mere declarations of law unless the losing State party voluntarily complies, or the Security Council possesses the political will to enforce an ICJ decision that is not being complied with by the losing party. This means that the Security Council must have support from its membership, including the affirmative vote or abstention of all five of its Permanent Members that possess a right of veto. The General Assembly possesses the authority to recommend compliance with decisions of the ICJ or other measures designed to overcome non-compliance but has no coercive authority of its own by which to implement ICJ decisions. Yet, as mentioned, civil society activism if mobilized can impose punitive responses to high profile instances of non-compliance, as here

The ICJ has certain distinctive features several of which are worth briefly mentioning:

            –there are fifteen judges elected for nine years terms, no two of which can come from the same country, and each is expected to have strong experiential credentials as a jurist.  If a party to a legal action at the ICJ is from a country not represented by one of the fifteen elected judges then it is entitled to appoint an ad hoc judge for this case. As neither Israel nor South Africa were so represented, each exercised this right to select an ad hoc judge, and thus the panel of judges in the genocide case numbered seventeen.

–over the course of its history the ICJ has earned a reputation of judicial independence and professionalism but has been criticized for excessive formalism and cumbersome procedures, centering on the lengthy intervals of years between the date of submission and that of judgment. The ICJ has never before been so deeply engaged with an ongoing high profile legal dispute, and so far, has received widespread praise for its measured and legally well-reasoned treatment of South Africa’s effort to obtain a ruling that will legally repudiate and put an end to Israel’s response to the Hamas attack of October 7 by concluding that Israel is indeed guilty of perpetrating the crime of genocide. Israel has already been ordered by the ICJ to take provisional measures in light of the humanitarian emergency imperiling Palestinian lives in numerous ways, while awaiting the decision on the merits of the allegation of genocide that will not be forthcoming for several years or long after the probable end of violence in Gaza;  

            –the judges are elected by the members of the General Assembly and Security Council, but a negative vote by one of the P5 is treated as a normal vote, and doesn’t count as a veto;

            –in response to formal requests from the distinct organs and specialized agencies that make up the UN System, including its specialized agencies, the ICJ also has a parallel authority and duty to render what are called in its Statute ‘Advisory Opinions.’ These are issued in response to formal requests, but only from organs and specialized agencies of the UN. As the language implies, the legal findings of advisory opinions are not binding, and there is no expectation that where the issues are controversial, the rulings will change behavior of the government(s) whose policies and practices are incidentally found to be unlawful by the ICJ in this advisory role, although remembering that the ICJ does not directly use an advisory opinion to assess the legality of the behavior of sovereign states. Nevertheless, the legal assessments of the judges rendering Advisory Opinions may exert a considerable educational and political influence in relation to the future development of international law. Diminishing the authority of advisory opinions is one example of how the UN balances sovereign rights of its members against the supposedly overriding authority of international law;

            –states have an option of signing up for compulsory jurisdiction, which means that if an adversary state is mutually so bound, it can invoke a legal obligation to resolve an international legal dispute by submitting it to the ICJ. In some instances, as in the Genocide Convention, the duty to have legal disputes adjudicated if a party to the treaty formally requests is written into the treaty itself;

            –the ICJ has rendered some unpopular and dubious decisions in the course of its history, as in the so-called Southwest Africa Cases back in 1966 whereby the outcome was upheld by a close vote. It upheld South Africa’s legal right to govern as the mandatory authority in South West Africa (now Namibia) by relying on the same kind of apartheid regime it applied to its own domestic racial divide.[2] Again, the secondary effects of an ICJ decision can be significant even if contrary to its legal reasoning. The anger among government of the Global South at the UN resulting from an ICJ decision that favored apartheid South Africa, led the General Assembly abruptly to terminate South Africa’s mandate, facilitating the achievement of sovereign statehood for South West Africa;

            –the contributions of the ICJ to the development of international law through its well-analyzed and researched opinions, including dissents and separate opinions, has been at least as important as its assigned priority of resolving international legal disputes. It has been given very few opportunities during its almost 80 years of existence to render judgment on legal disputes between geopolitical rivals..

ICC  

The ICC is still quite a young institution that did not come into existence until 2002, or 57 years after the UN was established. It came about as a projectthat gained political traction by creating a collaborative coalition of governments from the Global South and many civil society actors, or NGOs. To become a member of the ICC it is necessary to become a party to the Rome Statute, a stand-alone international treaty, that provides the technical framework for the operations of the tribunal. Unlike the ICJ, the ICC operates without any formal relationship to the UN.

Such a procedure requires states to submit the Rome Statute as an international treaty to diverse national constitutional procedures that involve typically signature by a representative of the executive branch of government followed by legislative approval, sometimes requiring  a super-majority. As of 2023, 124 countries have become ICC members, including all of the European states that have supported Israel’s claim to act in defense of its security, but to a lesser degree than the US.

Unlike the ICJ, the ICC has only jurisdiction over individuals who are physically subject to its authority. Members of the ICC are obligated to cooperate with its formal orders, including the arrest of individuals accused of international crimes after a lengthy investigation of the evidence of criminality has been obtained and evaluated. A weakness of the ICC is that the most important geopolitical actors, the US, China, and Russia chose not to join for pragmatic and ideological reasons, challenging the basic notion that international criminal law took precedence over national sovereignty and its legal institutions.

A controversial aspect of the Rome Statute is its grant of authority to the ICC to prosecute properly accused individuals who allegedly committed crimes on the territory of member states but were themselves nationals of non-member states. The Global West, especially the US and Israel have made this issue into a challenge in current circumstances to the effectiveness and legitimacy of ICC operations. After the Russian attack on Ukraine in 2022 the US and European members pushed hard for the arrest of Putin and others, while in the context of Israel’s genocide, these same governments were outraged when the Senior Prosecutor of the ICC recommended the issuance of arrest warrants for top Israeli leaders. At this point, there is no finality as the recommendation awaits action by a panel of three ICC judges who must decide to approve or reject. In any event, there is no prospect of implementing ICC arrest warrant against Israel as only member states are obliged to give effect to such warrants should they be issued.  

Nevertheless, even at this preliminary stage, these recommendations pertaining to arrest warrants has some adverse implications for the individuals targeted and the country of their affiliation. The indicted individuals might hesitate before traveling to countries, such as the UK and France, which are ICC members, and obligated to carry out arrests, especially if they have incorporated universal jurisdiction legislation as part of their law. It is bears on how the political actors are perceived in civil society, tilting the scales of legitimacy. This could have reputational implications for both the countries involved and for the reputation of the ICC, causing, as here, an angry Israeli backlash against all forms of internationalism.

It should be observed that in the past, the ICC has been criticized for its focus on the alleged criminal wrongdoing of political leaders in countries of the Global South, especially those from Sub Saharan Africa. When the ICC earlier attempted to investigate evidence of crimes by Israel in Occupied Palestine and those of the US in Afghanistan there was a furious reaction in Washington including the formal adoption of sanctions against ICC officials, including the ICC. The failure to move forward, despite the abundant evidence, created an impression that the ICC was a weak institution not capable of consistent professionalism or of fulfilling the expectations contained in the Rome Statute. Again, in relation to the Gaza genocide there have been calls for ‘sanctions’ against the Prosecutor and other officials of the ICC should the recommended issuance of the arrest warrants or other actions against Israelis take place.

The future of the ICC, and indeed the struggle to extend criminal accountability to the strongest political actors will be seriously affected by the outcome in Gaza, and by whether the ICC responds to current geopolitical pressures in ways that improve its reputation for judicial independence. Ever since the Nuremberg and Tokyo war crimes trials international criminal law has been seriously compromised in war/peace contexts by its failures to treat equals equally. The damning fact remains that these World War II prosecutions only addressed the crimes of the losers while excluding from consideration the crimes of the winners. Such a double standard has tainted all efforts since 1945 to strengthen generally legal accountability for international crimes. It raises the question as to whether ‘the primacy of geopolitics’ within the UN and elsewhere in managing global security is subject to challenge. The planned summit scheduled for September 22-23 on the future of the UN [Summit for the Future: Multilateral Solutions for a Better Tomorrow] should cast light on this fundamental question, but may well not touch a  topic that is so sensitive and bound to give rise to inter-governmental friction.

Peoples’ Tribunals

Ever since the Russell Tribunal of 1966-67 organized as a project of civil society activism in the middle of the Vietnam War, the ad hoc organization of such tribunals have created a non-state mode of instituting a judicial approach in situations where controversial international conflicts were not being addressed in a manner that calmed public concerns. Such tribunals can alter public discourse by media impacts and through documentation of allegations, as articulated by individuals with

reputations as public intellectuals and persons of conscience. Unlike the ICJ or ICC, the emphasis is put upon morality and politics.

It is also possible for civil society representatives to file briefs or make suggestions to the ICJ and ICC in a variety of ways. A particularly interesting initiative has been taken by the Geneva International Peace Research Institute submitting a long scholarly, prudently phrased statement to the ICC Prosecutor advancing an argument for why a formal investigation should be undertaken of the complicity crimes relating to the Gaza Genocide allegedly committed by Ursula von der Leyen in her role as  President of the European Commission.

This interplay between civil society activism and the working of the formal statist procedures deserves further investigation and commentary..   

[1] A clear case of geopolitical interference has been clearly present with respect to the role of the U agency entrusted with the implementation of the Chemical Weapons Convention in relation to the Douma Incident in 2018.

[2] The vote in the ICJ was 7-7, which according to its rules, meant that the President of the Court, who supported the South African legal position has a second ‘casting vote’ that broke the tie.

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Why the ICC’s Prosecutor’s Recommendation too Arrest Israeli and Hamas Leaders May Be Historic

23 May

[Prefatory Note: The following opinion piece was published in Middle East Eye  on May 22, 2024; also in Common Dreams. The situation surround the arrest warrants is evolving so rapidly as to justify a later revision. The situation surround the arrest warrants is evolving so rapidly as to justify a later revision.}

Why the ICC’s Decision to Recommend Arrest for Israeli and Hamas Leaders Is Historic

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

RICHARD FALK

May 22, 2024Middle East Eye

2

The International Criminal Court this week made the first truly historic move since its establishment in 2002, with its chief prosecutor recommending arrest warrants against two top Israeli officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and three prominent Hamas leaders.

As expected, both sides have denounced this ICC action in the strongest possible language. Because of Western media bias, the angry reactions from Israel and its allies have dominated the news cycle, while the official statement from Hamas has been largely ignored.

While each side chose a similar line of argument, there is a 180° difference in their substantive outlooks.

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide.

Israel’s most fundamental objection to the prosecutor’s action is the supposed equivalence drawn between Hamas, which perpetrated the barbarous attack of October 7, and the democratically elected government of Israel, which says it acted to defend itself and restore the security of its population.

Hamas and its supporters are also appalled at the equivalence implied by the call for arrest warrants, which “equate[s] the victim with the executioner” in the context of an oppressive Israeli occupation that affirms Palestinian legal rights of resistance, including recourse to armed struggle.

In my judgment, the Israeli response is rhetorical and polemical, to the effect that Israel and its leaders can never be accused of criminality in a context shaped by what happened on October 7, identified as the worst attack on the Jewish people since the Holocaust.

Netanyahu called the recommendation for arrest warrants “a moral outrage of historic proportions”—a “travesty of justice” that sets “a dangerous precedent,” interfering with the right of democratic states to defend themselves.

Defense Lacking

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide, as evidenced by growing protests even in the U.S., Israel’s most unwavering supporter.

The crimes and the evidence are delimited in the language of law, and they are certainly of a magnitude and severity to require a good-faith substantive response by Israel. Nothing less can convince world opinion that the ICC prosecutor exceeded his writ by proposing arrest warrants.

It is especially relevant to refer back to the International Court of Justice’s near-unanimous interim order in January as evidence that the charges against Israel’s leaders are hardly a disgrace or a dangerous precedent. That ruling gives firm, if provisional, grounds for believing that Israel’s violence after October 7 constitutes a deplorable instance of sustained genocide targeting the entire civilian population of Gaza.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine.

To a far lesser extent, the same criticism applies to the Hamas response. Although the prosecutor should have addressed the context of a long abusive occupation and victimization in violation of international humanitarian law, this does not confer impunity on such criminal excesses as were committed on October 7.

The call to issue arrest warrants against Hamas leaders is dubious because of the absence to date of an impartial international investigation into what actually happened on October 7, and of evidence that the Hamas leaders—as opposed to other Palestinian resistance entities, such as Islamic Jihad—have been properly singled out.

It should come as no surprise that the U.S. leapt to Israel’s defense, joining in a rather mindless attack on the credibility of this treaty-based global tribunal, which has a mandate to investigate and take action against perpetrators of international crimes.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine. Such double standards exhibit moral hypocrisy and juridical nihilism, with the U.S. invoking international procedures as foreign policy instruments rather than universally applicable norms.

Irrelevant Statement

In a striking phrase that could have come from the Israeli government, U.S. President Joe Biden said on Monday, “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” He backed up this legally irrelevant statement with the categorical assertion that “we will always stand with Israel against threats to its security.”

Again, this is irrelevant. The only question is whether the evidence supports the issuance of arrest warrants. In reiterating such a one-sided stance, Biden is reinforcing the complaints of protesters everywhere that Washington is complicit in the most transparently reported genocide confirmed in real time, and not in retrospect or abstractly, as was the case even with the Holocaust.

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation.

Beneath the smoke of controversy is the fire of a massive campaign of state terrorism that was projected at first as defensive and reactive violence, but quickly showed its true colours as premeditated violence and forced relocation of Palestinians in Gaza, increasingly remote from Israel’s genuine security concerns.

Also forgotten in the controversies of recent months is the context set by the Netanyahu government prior to the Hamas attack. Even in the West, this governing coalition was described as the most extreme in the history of Israel. What made it so was its undisguised effort to initiate a settler-led campaign to make life as unliveable as possible for Palestinians in the occupied West Bank, expressed by a message delivered in various ways to the effect of: “Leave or we will kill you.”

The Israeli government, including extremist cabinet ministers Itamar Ben Gvir and Bezalel Smotrich, green-lit this violence as part of their priority goal of unilaterally establishing Greater Israel, and ending all Palestinian prospects of statehood or any meaningful form of self-determination.

Multiple Failures

In addition, the fact that Israel received advance warning of a planned and rehearsed Hamas attack, possessed elaborate surveillance and informer capabilities, and reacted to the attack with uncharacteristic incompetence, all make it hard to believe that a massive response scenario was not already agreed upon by the Israeli leadership before a single hostage was seized.

When the Israeli retaliation did commence, it was immediately imbued with genocidal tactics and language, including policies to deprive Palestinians in Gaza of food, fuel, electricity, and water. Most revealing were the forced relocations of Palestinians from northern to southern Gaza, the gruesome attacks on hospitals and population centers, the use of starvation as a weapon of war, and the ongoing efforts to induce Egypt and other countries to accept large numbers of Palestinian refugees.

This sustained campaign seems to have become increasingly self-destructive from the perspective of Israeli security. Many Israelis now believe that the Netanyahu leadership is responsible for multiple failures: to destroy Hamas, to achieve the safe return of hostages, and to preserve the country’s reputation as a legitimate sovereign state.

By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation, unleashing police brutality and punitive actions against pro-Palestinian activism. It has been totally irresponsible to pretend there is no legal merit to the charges of genocide being leveled against Israel; its behavior at the United Nations has damaged international law and the character of self-righteous liberal democracies.

The ICC prosecutor is also deserving of criticism. There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.

Over time I suspect that the failure to address “genocide” will be regarded as the most shocking weakness in the prosecutor’s formal statement.

At the very least ICC Pros

Why the ICC’s Decision to Recommend Arrest for Israeli and Hamas Leaders Is Historic

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

RICHARD FALK

May 22, 2024Middle East Eye

2

The International Criminal Court this week made the first truly historic move since its establishment in 2002, with its chief prosecutor recommending arrest warrants against two top Israeli officials, Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and three prominent Hamas leaders.

As expected, both sides have denounced this ICC action in the strongest possible language. Because of Western media bias, the angry reactions from Israel and its allies have dominated the news cycle, while the official statement from Hamas has been largely ignored.

While each side chose a similar line of argument, there is a 180° difference in their substantive outlooks.

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide.

Israel’s most fundamental objection to the prosecutor’s action is the supposed equivalence drawn between Hamas, which perpetrated the barbarous attack of October 7, and the democratically elected government of Israel, which says it acted to defend itself and restore the security of its population.

Hamas and its supporters are also appalled at the equivalence implied by the call for arrest warrants, which “equate[s] the victim with the executioner” in the context of an oppressive Israeli occupation that affirms Palestinian legal rights of resistance, including recourse to armed struggle.

In my judgment, the Israeli response is rhetorical and polemical, to the effect that Israel and its leaders can never be accused of criminality in a context shaped by what happened on October 7, identified as the worst attack on the Jewish people since the Holocaust.

Netanyahu called the recommendation for arrest warrants “a moral outrage of historic proportions”—a “travesty of justice” that sets “a dangerous precedent,” interfering with the right of democratic states to defend themselves.

Defense Lacking

What is missing from the Israeli response has been any defense against the specificities of Israeli behavior, viewed around the globe as amounting to genocide, as evidenced by growing protests even in the U.S., Israel’s most unwavering supporter.

The crimes and the evidence are delimited in the language of law, and they are certainly of a magnitude and severity to require a good-faith substantive response by Israel. Nothing less can convince world opinion that the ICC prosecutor exceeded his writ by proposing arrest warrants.

It is especially relevant to refer back to the International Court of Justice’s near-unanimous interim order in January as evidence that the charges against Israel’s leaders are hardly a disgrace or a dangerous precedent. That ruling gives firm, if provisional, grounds for believing that Israel’s violence after October 7 constitutes a deplorable instance of sustained genocide targeting the entire civilian population of Gaza.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine.

To a far lesser extent, the same criticism applies to the Hamas response. Although the prosecutor should have addressed the context of a long abusive occupation and victimization in violation of international humanitarian law, this does not confer impunity on such criminal excesses as were committed on October 7.

The call to issue arrest warrants against Hamas leaders is dubious because of the absence to date of an impartial international investigation into what actually happened on October 7, and of evidence that the Hamas leaders—as opposed to other Palestinian resistance entities, such as Islamic Jihad—have been properly singled out.

It should come as no surprise that the U.S. leapt to Israel’s defense, joining in a rather mindless attack on the credibility of this treaty-based global tribunal, which has a mandate to investigate and take action against perpetrators of international crimes.

Although U.S. officials now complain about jurisdictional obstacles to indicting nationals of countries that are not parties to the ICC’s Rome Statute, Washington enthusiastically supported the court’s hasty indictment of Russian President Vladimir Putin soon after the 2022 invasion of Ukraine. Such double standards exhibit moral hypocrisy and juridical nihilism, with the U.S. invoking international procedures as foreign policy instruments rather than universally applicable norms.

Irrelevant Statement

In a striking phrase that could have come from the Israeli government, U.S. President Joe Biden said on Monday, “Whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” He backed up this legally irrelevant statement with the categorical assertion that “we will always stand with Israel against threats to its security.”

Again, this is irrelevant. The only question is whether the evidence supports the issuance of arrest warrants. In reiterating such a one-sided stance, Biden is reinforcing the complaints of protesters everywhere that Washington is complicit in the most transparently reported genocide confirmed in real time, and not in retrospect or abstractly, as was the case even with the Holocaust.

Ironically, the misplaced rhetoric of outrage from Israel and its allies has endowed the ICC’s pronouncements with an importance that the institution never before possessed.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation.

Beneath the smoke of controversy is the fire of a massive campaign of state terrorism that was projected at first as defensive and reactive violence, but quickly showed its true colours as premeditated violence and forced relocation of Palestinians in Gaza, increasingly remote from Israel’s genuine security concerns.

Also forgotten in the controversies of recent months is the context set by the Netanyahu government prior to the Hamas attack. Even in the West, this governing coalition was described as the most extreme in the history of Israel. What made it so was its undisguised effort to initiate a settler-led campaign to make life as unliveable as possible for Palestinians in the occupied West Bank, expressed by a message delivered in various ways to the effect of: “Leave or we will kill you.”

The Israeli government, including extremist cabinet ministers Itamar Ben Gvir and Bezalel Smotrich, green-lit this violence as part of their priority goal of unilaterally establishing Greater Israel, and ending all Palestinian prospects of statehood or any meaningful form of self-determination.

Multiple Failures

In addition, the fact that Israel received advance warning of a planned and rehearsed Hamas attack, possessed elaborate surveillance and informer capabilities, and reacted to the attack with uncharacteristic incompetence, all make it hard to believe that a massive response scenario was not already agreed upon by the Israeli leadership before a single hostage was seized.

When the Israeli retaliation did commence, it was immediately imbued with genocidal tactics and language, including policies to deprive Palestinians in Gaza of food, fuel, electricity, and water. Most revealing were the forced relocations of Palestinians from northern to southern Gaza, the gruesome attacks on hospitals and population centers, the use of starvation as a weapon of war, and the ongoing efforts to induce Egypt and other countries to accept large numbers of Palestinian refugees.

This sustained campaign seems to have become increasingly self-destructive from the perspective of Israeli security. Many Israelis now believe that the Netanyahu leadership is responsible for multiple failures: to destroy Hamas, to achieve the safe return of hostages, and to preserve the country’s reputation as a legitimate sovereign state.

By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

The Biden leadership, through its posture of unconditional support for Israel and irresponsible denunciation of the ICC, has turned its back on its own younger generation, unleashing police brutality and punitive actions against pro-Palestinian activism. It has been totally irresponsible to pretend there is no legal merit to the charges of genocide being leveled against Israel; its behavior at the United Nations has damaged international law and the character of self-righteous liberal democracies.

The ICC prosecutor is also deserving of criticism. There is no proper equivalence between the one-off attack of October 7, despite its atrocities, and the seven-month Israeli campaign of death and devastation in Gaza.

Over time I suspect that the failure to address “genocide” will be regarded as the most shocking weakness in the prosecutor’s formal statement.

At the very least ICC Prosecutor Karim Khan should have explained why it would have been legally premature to include this most serious and widespread allegation against Israel among the grounds for recommending that the ICC issue arrest warrants for Netanyahu and Gallant. By evading any mention of genocide, Khan can justly be accused of ignoring the elephant in the room.

Meanwhile, we should hope that the panel of judges will accept the prosecutors’s recommendation and issue warrants against Israeli and Hamas leaders—while also doing their best to erase the impression of equivalence. If the ICC sticks to its underlying principled position, it will enhance its reputation as a dimension of global governance not tainted by partisan geopolitics.

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Can the ICC Finally Gain Credibility

13 May

[Prefatory Note: A quite different version of this opinion piece was published in Middle East Eye on May 7, 2024. Nothing substantive has happened in the intervening weeks, but I wanted to call more explicit attention to the crude efforts by Netanyahu to call openly for the exertion of pressure on the ICC by the United States and other ‘democracies,’ seeking to induce the ICC rejection of this Global South attempt to criminalize Israel’s use of force, purporting to a defensive operation justifiably seeking the destruction of Hamas and the release of hostages seized in the Hamas attack on October 7. Neither apologists nor critics have yet acknowledged the possibility that the genocidal fury of Israel’s response was partly motivated by the Greater Israel vision of the extremist coalition government headed by Netanyahu that has been governing Israel since the start of 2023, or more than nine months before the Hamas attack. This construction of the events does not seem to alter its criminal character one way or the other, but it does affect its political and moral interpretation, thereby helping us understand why Israel embarked on such an alienating course of action ignoring several alternatives if restored security was truly its dominated motivation.]

Taking the ICC Seriously: Who Would Have Thought Netanyahu Would Lead the Way

A Shaky Start for the ICC

Since its establishment in 2002 the International Criminal Court has struggled to find a path to legitimacy. Its establishment was a triumph for the Global South in extending the potential reach of international criminal law, although it was limited from the outset by its existence being situated outside the formal UN framework and by the failure of the geopolitical ‘big three’ of the US, China, and Russia to join, and in relation to present concerns, by Israel’s refusal. The ICC does have 124 members including the liberal democracies in Western Europe, all states in South America, most in Africa, and  many in Asia. Despite this wide representation it has struggled throughout its existence for recognition, influence, respect, and legitimacy.

In its early years it was blamed for focusing its activities on the alleged wrongdoing of sub-Saharan African leaders, suggesting a racialist bias. Then later on, in relation to US and Israel’s alleged crimes in Afghanistan and Occupied Palestine, the ICC prosecutor sat on the files containing abundant evidence justifying at the very least, diligent investigations to determine whether indictments and prosecution were legally warranted, and by doing nothing, an impression formed that the ICC was so weak that it could not hope to resist geopolitical, Western backdoor manipulations. ICC inaction in this instance was partly attributed to the radical ultra-nationalism of the Trump presidency that had the temerity to impose personalized sanction on the prosecutor of the ICC should the tribunal open a case against either the US or Israel.

The story goes on, but with new twists. When Russia attacked Ukraine in early 2022, the ICJ was called upon by the NATO West to act with unaccustomed haste. It obliged by expediting its procedures to move forward on an emergency basis a determination as to whether Putin and others should be immediately indictment for war crimes. This unusual request for haste again appeared to serve the interests of the West, again somewhat racialized by the fact that ICC activism was on behalf of a white, Christian victim of alleged war crimes, and had never before been so enlisted. The ICC obliged, including issuing arrest warrants for Putin and a close assistant, confirming the suspicion that it could be bullied by even non-parties to the Rome Statute that state adhered to if seeking status as parties. Such haste with respect to Russia has not evident with regard to the far greater urgency, given the magnitude and severity of the unfolding humanitarian catastrophe in Gaza in the context of controversial happenings during the last several months. To date the ICC has withheld a response to the legal initiative of Chile and Mexico to enforce the Genocide Convention on the Prevention and Punishment of the Crime of Genocide.

These governments were seeking an ICC investigation and appropriate responses to Israel’s apparent gross violations of the Genocide Convention committed in the course of carrying out its retaliatory attack on Gaza after October 7. Israel’s disproportionate response seemed designed from its outset to ignore the civilian innocence of the Palestinian people in Gaza in a prolonged orgy of collective punishment, itself a violation of Article 33 of the 4th Geneva Convention.  This difference between the ICC response times in relation to Ukraine and Gaza reinforced the impression of double standards in the tribunal’s treatment of allegations of international crimes. In this instance, it was inevitable that the ICC politicized reputation would be contrasted with the laudable efforts of ICJ to do what it could do by way of declaring the relevant law, although hampered by its inability to coerce compliance by Israel or enforcement by the UN.

The ICJ and ICC: A Performative Comparison

Against this background, it was inevitable that the ICC would be widely viewed as a weak institution, above all by not initially obtaining participation or cooperation of such important states as the US, Russia, China, and of course, Israel. In this regard, the ICC was most unfavorably compared to the International Court of Justice (ICJ) to which all members of the UN were automatically parties. The ICJ was widely respect for maintaining a high degree of professionalism in assessing the merits of legal disputes referred to it for adjudication, consistently cautious about encroaching upon sovereign rights of international states.

This positive reputation of the ICJ was greatly enhanced by its near unanimous Interim Orders of January and March 2024 granting several Provisional Measures requested by South Africa to impede Israel’s behavior that seemed to lay a plausible basis for concluding that Israel would in the future be found guilty of ‘genocide’ in Gaza. Israel was also legally ordered to allow humanitarian aid to reach Palestinian civilians without interference given the emergency conditions that existed. Such order would apply at least until a final judgment on the merits of the genocide contention was reached by the ICJ after responding to further oral and written pleadings by the parties. This process was expected to last for several years, reducing the existential relevance of the ICJ judgment as the killing would have stopped long before the Court had time to rule. The decision would still have jurisprudential value as an authoritative interpretation of the crime of genocide despite geopolitical support given to Israel by important UN Member States. A belated ICJ judgment  might also be widely welcomed internationally as giving rise to preventive and early response mechanisms in anticipation of future genocides.  

Despite the cautious legal professionalism of the ICJ a nearly unanimous panel of the seventeen judges found Israel sufficiently responsible for action that made it ‘plausible’ to fear genocide sufficiently to grant Provisional Measures in response to South Africa’s request. [Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel, ICJ Orders, 192, 20240126 & 192 20240328, ProvMeasures)]; [see also the less jurisprudentially inhibited systematic assessment of Special Rapporteur on Occupied Palestine for the UN Human Rights Council, Francesca Albanese, ‘Anatomy of a Genocide,’ A/HRC/55/73, 25 March 2024].

These orders legally required Israel to take a variety of steps to stop engaging in what was plausibly viewed by the ICJ as genocidal behavior including interference with efforts to deliver food and medicine to starving and desperate Palestinians huddled together in dangerously crowded collective misery throughout Gaza, and not only in the small city of Rafah on the Egyptian border. The prospect of bloody extensions of genocide continue at this point to be daily pledged by Israeli leaders poised to attack Rafah and put the finishing touches on an assault defiantly directed against the moral sensibilities of humanity as well as the life prospects of Palestinians. In the process of proceeding with its Rafah attack, Israel so far more openly refused US overt and covert pressures than did the ICC, which in the past and perhaps will again in the present bend to the will of the Global West.

A Redemptive Moment for the ICC?

If asked even a week ago, I would have said that Bibi Netanyahu would have been the very last person on the planet to come to the institutional rescue of the ICC, although in indirectly doing so he chose a backhanded way. Netanyahu leaped to denounce the ICC after leaked rumors suggested that the Court was on the verge of issuing arrest warrants naming Netanyahu, the Minister of Defense, Yoav Gallant, and Army Chief of Staff Herzl Halevi. Somehow this prospect so disturbed Netanyahu that he chose to go on the offensive in advance of any formal action. His five-minute video tirade against the ICC is worth watching by everyone—

 https://x.com/netanyahu/status/1785362914519519597?s  1-–if only to get a sense of just how potentially formidable the ICC might become if it performs as it should. If it takes Netanyahu to shame the ICC into finally doing its job, so be it.

At the same time Netanyahu’s gross distortions of what was happening in Gaza were extreme enough to provide valuable material to late night TV humorists if their purpose was to whitewash over six months of unprecedented humanitarian catastrophe imperiling the survival of the long much abused civilian population of Gaza.  Israeli behavior is so macabre as to beyond the realm of good-natured, apolitical comedy, or even political satire. It offer more of an occasion for weeping and mourning the lost and ravaged lives, and devasted cities, hospitals, places of worship, schools, and UN facilities.

It is within this setting that the ICC seems to have been given an opportunity to act finally in accordance with its mandate, redeem its reputation for spinelessness, and strike a symbolic blow in the increasingly worldwide struggle to stop Israel’s genocide in Gaza. It is technically possible and undoubtedly politically tempting for the prosecutor to disappoint these expectations by limiting ICC action against Israeli and Hamas leaders to their alleged pre-October 7 crimes. Such an evasion would be within scope of the 2015 initiative of Palestine, a party to the Rome Statute, which was initiated in such a manner that any crime after 2014 was potentially indictable. Such an evasion would be a double disappointment for those seeking to increase pressure on Israel to accept a ceasefire followed by a series of restorative acts that could include redress, reparations, accountability, and reconstruction punitive directives.

We are left with the puzzle of why Israel’s reaction to the ICC, in view of its low institutional esteem, was seen as so much more threatening to the Israeli leadership than the more focused directives of the far more established ICJ. Could it be that the criminal character of the ICC and the personal nature of arrest warrants pose more of a threat than the prospect of a mere legal ruling? It is of course relevant to note that the ICJ is not a criminal tribunal and possesses authority only to assess legal disputes between sovereign states and to give legal ‘advice’ in response to requests by organs of the UN.

Netanyahu phrased his key argument against the arrest warrants as posing a mortal threat to the right of democracies to defend themselves against their terrorist enemies, whether regime or non-state actor, singling out Iran.  Such a view, reverses the perceptions of peoples throughout the world excepting those governments and right-wing elements that support Israel in the Global West and the hardest core overseas Zionist zealots. Increasingly, even in the strongholds of Zionist influence, softer versions of Zionism and more independent Jewish voices are siding with the pro-Palestine protesters, reacting against the stark reality of genocide.

A Concluding Remark

We should all know by now that Israel has no intention of complying with international law no matter what the source of authority. In this sense, the importance of the ICJ and potentially, the ICC, is to strengthen the growing tide of pro-Palestinian sentiment around the world, and an emerging consensus to strengthen civil society solidarity initiatives of the kind that contributed to the American defeat in Vietnam despite total battlefield military superiority and that later doomed the South African apartheid regime. In this regard, the utterances of the most influential international institutions entrusted with interpreting international law have more of a behavioral impact in high profile political situations such as exist in Gaza, than does do either the ICJ or ICC, and for that matter, than even the UNSC. Governments may defy legal authority, while civil society is mobilized to implement its conclusions if they seem to reinforce moral and political convictions.

Once again if the Palestine people ever do finally realize their basic rights, it will be thanks to the resistance of those victimized as reinforced by the civil society activism of people everywhere.  It may be in launching his vitriolic attack on the ICC, Netanyahu was subconsciously delivering a mendacious sermon to the aroused peoples of the world who are refusing to heed such self-serving hyperbole. 

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Palestine Horizons: Winning the Long Game

21 Mar

Palestinian Balance Sheet: Normative Victories, Geopolitical Disappointments

Winning the Long Game

In recent weeks the Palestinian people have scored major victories that would havedire consequences for Israel if law and morality governed political destiny. Instead, these successes are offset by adverse geopolitical developments as a result of the Biden presidency embracing some of the worst features of Trump’s hyper-partisanship with respect to Israel/Palestine. Law and morality alter reputations, bear on the legitimacy of contested policies, while geopolitics bear more directly on behavior, the difference is best understood as separating symbolic and substantive politics.

Yet, legitimacy gains should not be dismissed just because nothing that matters on the ground seems to change, and sometimes vindictively changes for the worse. In the long game of social and political change, especially in the course of the last 75 years, the winner of the Legitimacy War waged for the high legal moral ground and competition for intensity of political commitment has much more often than not eventually controlled the outcome of a struggle for national self-determination and sovereign independence, overcoming geopolitical obstructions and military superiority along the way. The anti-colonial wars, it should not be forgotten, were won by the weaker side militarily, although quite often enduring an ordeal of desecration along the way. So far, Israeli leadership, although worried by its setbacks on the battlefields of the Legitimacy War have not departed from the American game plan of devising security through a combination of military capabilities and regional activity, allying against Iran, while subverting the unity and stability of potential hostile neighboring States. 

Relevant is the great unlearnable lesson of the last century that the U.S. dominated the military dimensions of the Vietnam War and yet managed to lose the war. Why unlearnable? Because if learned, the case for a permanent wartime military budget would disappear, and the stubborn mythic belief that ‘our military keeps us safe’ would lose much of its credibility.

With Biden as president, reviving alliance-based confrontational geopolitics, the prospect is for a dangerous and costly worsening of relations among major centers of global wealth and military power, avoiding the kind of reallocation of resources urgently requires to meet the challenges of the Anthropocene. We can bemoan the dysfunctionality of global militarism, but how can we gain the political traction to challenge it? This is the question we should be asking of our politicians without distracting them from addressing the urgencies of the domestic agenda bearing on health, economic recovery, and assaults upon voting rights. 

The Palestinian struggle continues, and offers the template of a colonial war carried on in a post-colonial era, in which a huge national oppressive regime backed by geopolitical support is required to enable Israel to swim against the strong liberation tides of history. Israel has proved to be a resourceful settler colonial state that has carried to completion the Zionist Project by stages, and with the vital help of geopolitical muscle, and has only recently begun to lose control of the normative discourse that earlier had been controlled by dramatizing the saga of persecuted Jews in Europe who deserved sanctuary accompanied by the denialist dismissal of Palestinian national claims to be secure in their own homeland. The Palestinians, having no significant relationship to the history of antisemitism were made to pay some of the humanitarian costs inflicted on Jews by the Holocaust while the liberal West looked on in stony silence. This one-sided discourse was reinforced by claiming the benefits of modernity, an insistence that the replacement of dirty backward Arab stagnancy in Palestine by a dynamic modern and flourishing Jewish hegemony, which later was also valued as a Western foothold in a region coveted for its energy reserves and more recently feared because of its anti-Western extremism and Islamic resurgence. The conflict over the land and the ideological identity of the emergent state, unfolding over a century, has had many phases, and has been affected, almost always adversely, by developments within the region and by geopolitical intervention from outside.

As with other anti-colonial struggles, the fate of the Palestinians will eventually turn on whether the struggles of the victimized people can outlast the combined power of the repressive state when, as here, it is linked to the regional and global strategic interests of geopolitical actors. Can the Palestinian people secure their basic rights through their own struggles wages against a combination of internal/external forces, relying on Palestinian resistance from within, global solidarity campaigns from without? This is the nature of the Palestinian Long Game, and at present its trajectory is hidden among the mystifications and contradictions of unfolding national, regional, and global history.

Palestinian Normative Victories

Five years ago no sensible person would have anticipated that Israel’s most respected human rights NGO, B’tselem, would issues a report declaring that Israel had established a unified apartheid state that governed from the Jordan River to the Mediterranean Sea, that is, encompassing not only Occupied Palestine but Israel itself. [This is Apartheid: A regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea, B’Tselem: The Israeli Information Center for Human Rights in Occupied Territory, 12 Jan 2021] With careful analysis the report showed that Israeli policies and practices with respect to immigration, land rights, residency, and mobility were administered in accordance within an overriding framework of Jewish supremacy, and by this logic, Palestinian (more accurately non-Jewish, including Druze and non-Arabic Christians) subjugation. Such a discriminatory and exploitative political arrangement is descriptive of apartheid, as initially established in South Africa and then generalized as an international crime in the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. This idea of apartheid criminality was carried forward in the Rome Statute that provides the framework within which the International Criminal Court (ICC) in The Hague carries on its activities. Article 7 of the Rome Statute, a treaty of the parties, governing the ICC enumerates the various Crimes Against Humanity over which the ICC asserts its jurisdictional authority. Apartheid is classified as such a crime in Article 7(j), although without any accompanying definition, and no investigation by the ICC of apartheid allegations involving Israeli perpetrators has ever occurred. It is notable that regarding ‘apartheid’ as a crime against humanity would reduce the burden of proof as compared to allegations of ‘genocide.’

Only weeks after the B’Tselem Report came the much anticipated decision of the Pre-Trial Chamber of the ICC on February 6, 2021. By a 2-1 vote the Chamber’s decision affirmed the authority of Fatou Bensouda, the ICC Prosecutor, to proceed with an investigation of war crimes committed in the Occupied Palestinian territories since 2014, as geographically defined by its provisional 1967 borders. To reach this outcome the decision had to make two important pronouncements: first, that Palestine, although lacking many of the attributes of statehood as define by international law, did qualify as a State for purposes of this ICC proceeding, having been accepted as a Party to the Rome Statute in 2014 after being recognized by the General Assembly on November 29, 2012 as a ‘non-member Observer State.’; and secondly, that the jurisdiction of ICC to investigate crimes committed on the territory of Palestine was authoritatively identified as the West Bank, East Jerusalem, and Gaza, that is, the territories occupied by Israel during the 1967 War. In a decision that sought to convey impressions of judicial self-restraint it was pointed out that these legal positions were limited to the facts and claims under consideration, and did not purport to prejudge the statehood or territorial claims of either Israel or Palestine in other contexts. The lengthy dissent rejected this reasoning, relying heavily on the continuing relevance of the agreements concluded in accord with Oslo diplomacy that allegedly altered the status of the occupation, and took precedence, concluding that the Prosecutor lacked the legal competence to proceed with the investigation. [As the present Prosecutor’s term expires in June 2021, and a new Prosecutor takes over, Karim Khan, the future of these legal proceeding is uncertain.] 

It should be observed that this Pre-Trial proceeding had attracted unusually widespread interest in the world both because of the identity of the parties and the intriguing character of the issues. Jurists have long been intrigued by defining statehood in relation to different legal settings and by settling jurisdictional disputes addressing issues arising in territories that lack permanently established international borders and clear lines of sovereign authority. An unprecedented number of amicus curiae briefs were submitted to the ICC, including by prominent figures on both sides of the controversy. [I submitted an amicus brief with the collaborative help of the Al Haq researcher, Pearce Clancy. ‘The Situation in Palestine,’ amicus curiae Submissions Pursuant to Rule 103, ICC-01/18, 16 March 2020] Israel was not a Party to the Rome Statute, and declined to participate in the proceedings directly, but its views were well articulated by several of the amicus briefs. [e.g. by Dennis Ross who led the Clinton Era peace negotiations between Israel and Palestine. ‘Observations on Issues Raised by Prosecution for a ruling on the Court’s territorial jurisdiction in Palestine,’ ICC-01/18, 16 March 2020].

This decision was promising from a Palestinian point of view as an exhaustive Preliminary Investigation conducted by the Prosecutor over the prior six years had already concluded that there was ample reason to believe that crimes had been committed by Israel and by Hamas in Palestine, specifically referencing three settings: (1) the massive IDF military operation of 2014 in Gaza, known as Protective Edge; (2) the disproportionate uses of force by the IDF in responding to the Right of Return protests during 2018; (3) settlement activity in the West Bank and East Jerusalem.

The Prosecutor can now go forward has been legally established, including with the identification of individual perpetrators who could be charged and held accountable.

Whether this will happen now depends on the approach adopted by Mr. Khan when heassumes the role of Prosecutor in June, which remains a mystery despite speculation.

A further Palestinian victory is the defection of highly respected and well known liberal Zionists who have, so to speak, not seen the light, but speak openly about it, and command access to mainstream media. Peter Beinert is the most relevant example in an American context, but his announced disbelief in Israeli willingness to reach accommodation with the Palestinians on any reasonable basis is one more victory in the domain of symbolic politics. 

Geopolitical Disappointments

It was reasonable for Palestine and Palestinians to hope that a more moderate Biden presidency would reverse the most damaging moves taken by Trump that seemed to undermine still further Palestinian bargaining power as well as significantly encroached on Palestinian basic rights, and did so in a manner that rejected both the authority of the UN and international law. The Biden Secretary of State, Antony Blinken, sent signals on the most significant issues that seemed to affirm and ratify rather than reverse or modify the Trump diplomacy. Blinken affirmed, what Biden had implied, with respect to shifting the U.S. Embassy from Tel Aviv to Jerusalem, and thus joining Trump in defying a UNGA Resolution in 2017 that declared such a move as ‘void’ and without legal effect. Blinken has also indicated support for Israel’s territorial incorporation of the Golan Heights, which again defied international law and the UN, which had stood by a firm principle, earlier endorsed with respect to Israel’s occupation of Palestinian territories after the 1967 War in iconic Security Resolution 242. This text confirmed that foreign territory could not be

acquired by force, and anticipated Israeli withdrawal to 1967 borders (as modified by negotiations about minor border adjustments agreed to between the parties).

And above all, Blinken endorsed the normalization agreements between Israel and four Islamic States (U.A.E., Bahrain, Sudan, Morocco) achieved by bullying tactics of Trump

and the pursuit of self-interest. These were mainly symbolic victories for Israel having to do with regional acceptance and legitimacy credentials as well as regional containment and pushback alignment contra Iran. In many respects they extend prior de facto developments with a minimal impact of Israeli/Palestine dynamics.

Assessing Gains and Losses

So far Israeli fury directed at the ICC outweighs Palestinian geopolitical disappointments, the latter being likely tempered by apparent lingering hopes for a marginally improved relationship between the PA the U.S. and EU countries. And there have been some proper adjustments, including the announced willingness to reopen of PLO information centers in the U.S. and resumed diplomatic contact by Washington with the Palestinian Authority, and some language suggesting a return to diplomacy between in contrast with the Trump effort to dictate the terms of an Israeli victory put forth as ‘the deal of the century.’ Yet Biden’s early efforts in less controversial policy spheres to undo as much of Trump international mischief as possible, from rejoining Paris Climate Change Agreement, the WHO and UN Human Rights Council to expressing the intention to stress global cooperation and a revived internationalism, contrast with leaving as is the worst elements of the Trumpist effort to shatter Palestinian hopes. Whether this can be explained by the strength of bipartisan U.S. support of the Israeli unconditional relationship or by regional strategic factors is a matter of conjecture. Perhaps, the most plausible explanation is Biden’s own pro-Israeli past combined with his proclaimed commitment to unify America, working with Republicans to the extent possible. His totemic slogan seems to be ‘together we can do anything,’ which so far has not

had much encouragement from the other side of the aisle.

What might make the Palestinians somewhat more hopeful is the degree to which these two developments were battleground sites for those defending Israel by all means possible. Even Jimmy Carter was demeaned as an ‘anti-Semite’ because his 2007 book merely suggested in its title that Israel needed to make peace with the Palestinians or risk becoming an apartheid state. Recall that John Kerry’s rather mundane observation that Israel had two years left within the Oslo framework to make peace with Israel to avoid an apartheid future for itself encountered such a hostile reaction that he was led to apologize for the remarks, more or less repudiating what seemed so plausible when articulated.

As recently as 2017 an academic study sponsored by the UN, which I wrote together with Virginia Tilley, confirming apartheid allegations was denounced in the Security Council as a defamatory text unfit to be associated with the UN. The critical statements were accompanied by veiled American threats to withhold funds from the UN unless our report was repudiated, and it was dutifully removed from the UN website by order of the Secretary General. Even most Zionist militants at this point prefer silence in global settings rather than mounting attacks on B’Tselem once most beloved by liberal Zionists as tangible proof that Israel was ‘the only democracy in the Middle East.’

The reaction by Israel to the ICC decision rises to apoplectic levels of intensity. The fuming response of Netanyahu was echoed across the whole spectrum of Israeli politicians. In Netanyahu’s outrageous calumny against the ICC: “When the ICC investigates Israel for fake war crimes, this is pure anti-Semitism.” He added, “We will fight this perversion of justice with all our might.” Intemperate as are these remarks, they do show that Israel cares deeply about legitimacy issues, and rightly so. International law and morality can be defied as Israel has done repeatedly over the years but it is deeply mistaken to suppose that the Israeli leadership does not care. It seems to me that Israeli leaders understand that South African racism collapsed largely because it lost the Legitimacy War. Maybe some Israeli leaders are beginning to grasp the writing on the wall. The ICC decision may turn out to be a turning point not unlike the Sharpeville Massacre of 1965. This may be so even, as is likely, not a single Israeli is ever brought to justice before the ICC.  

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Rogue States Sanction the International Criminal Court  

26 Jun

[Prefatory Note: This post is a slightly modified version of an editorial contribution to TMS (Transcend Media Service), June 22-28, 2020).]

 

Sanctioning the International Criminal Court

 

Even Orwell would be at a loss to make sense of some of the recent anticsof leading governments. We would expect Orwell to be out-satirized by the American actions to impose penalties and sanctions on officials of the International Criminal Court, not because they are accused of acting improperly or seem guilty of some kind of corruption or malfeasance, but because they were doing their appointed jobs carefully, yet fearlessly and in accord with their proper role. Their supposed wrongdoing was to accept the request for an investigation into allegations of war crimes committed in Afghanistan by military personnel and intelligence experts of the U.S. armed forces, the Taliban, and the Afghan military. It seemed beyond reasonable doubt that frequent war crimes and crimes against humanity have occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous combat amid a hostile population.

 

It should be noted that Israel is equally infuriated that the ICC has affirmed the authority of its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed in the Occupied Palestinian Territories (OPT) of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements in the OPT as well as administrative structures and practices that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and  on ‘the Jewish people’s right to live in Israel,’ a ridiculous contention on its face. The Israeli Prime Minister seems to be contending that Israel as a sovereign state has the right to defend itself as it wishes, and should not be impeded by any obligation to respect international criminal law, or for that matter, any external source of authority, including the United Nations. Such a defiant claim, and the abusive practices and policies that have followed over many years, amounts to a crass affirmation of what I have elsewhere called ‘gangster geopolitics.’

 

Of course, Israel or the United States would be given broad latitude to make arguments in support of their innocence or their jurisdictional claims that the ICC lacked authority to prosecute, but these U.S. and Israel objections are not complaining about encroachments by the ICC on their right to mount legal defenses, but rather on the far more radical idea involving a total denial of international legal accountability. These two  rogue states refuse to accept even the authority of the ICC to determine whether or not it has jurisdiction to consider the criminal charges. This kind of repudiation of an international institution that has been acting responsibly, well within their legal framework set forth in the Rome Statute, an international treaty, represents an unprecedented and extreme expression of anti-internationalism.

 

The angry American pushback did not bother contesting the substantive allegations, but denied only the jurisdictional authority of the ICC, and attacked the audacity of this international entity for supposing that it could investigate, much less prosecute and punish the representatives of such a mighty state that, by implication, should never, no matter what, be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court dared ever so gingerly to treat equals equally in accord with its own legal framework—the Rome Statute of 2000—it had in Washington’s and Tel Aviv’s eyes so overstepped its unspoken limits as to itself become a wrongdoer, and by this outlandish logic, making the institution and its officials legitimate targets for sanctions. What this kind of unprecedented punitive pushback against ICC officials amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude geopolitical reminder to international institutions that ‘impunity’ and ‘double standards’ remain an operational principal norm of world order.

 

Speaking for the U.S. Government the response of the American Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the American global brand well before Donald Trump disgraced the country and harmed the peoples of the world during his tenure as president. Pompeo’s reaction to the unanimous approval of the Prosecutor’s request to investigate war crimes in Afghanistan was little other than seizing the occasion to insult the ICC by describing it as “little more than a political tool employed by unaccountable international elites.” Such a statement crosses the borders of absurdity given the abundant documentation of numerous U.S. crimes in Afghanistan (the subject-matter of Chelsea Manning’s WikiLeaks 2010 disclosures that landed her in jail) and in view of the several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites running the U.S. and Israeli governments.

 

The Pompeo dismissal of the ICC initiative was a prelude to the issuance by Trump on June 11th of an Executive Order that extended the prior denial of a U.S. visa to Bensouda, and threatened a variety of sanctioning moves directed at anyone connected with the ICC and its undertakings, including freezing assets and withholding visas, not only of ICC employees, but also of their families, on the laughable pretext that the prospective ICC investigation was creating for the United States a ‘national emergency’ in the form of an “unusual and extraordinary threat to the national security and foreign policy of the United States.” Long before the present crisis, Trump had told the UN in a 2018 speech at the General Assembly that “..the ICC has no jurisdiction, no legitimacy, and no authority..We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”

 

As crude as are the words and deeds of the Trump crowd, there were almost equally defiant precursors, especially during the presidency of George W. Bush, an anti-ICC campaign led by none other than John Bolton who was to become Trump’s notorious National Security Advisor, and has suddenly become his antagonist-in-chief as a result of his book depicting Trump’s array of impeachable offenses. Remember that it was Bush who ‘un-signed’ the Rome Statute that Bill Clinton had signed on behalf of the U.S. on the last day of his presidency, but even he did so with the proviso that the treaty should not be submitted to the Senate for ratification and hence not be applicable, until the ICC had proved itself a responsible actor in Washington’s judgmental and biased eyes. Congress and the State Department stepped in to make sure that American military personnel would not be charged with international crimes both by threatening preventive action and entering into over 100 agreements with other countries to ensure immunity of American soldiers and officials from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to agree to such a law-defying arrangement. Hillary Clinton also put her oar in the bloody water some years ago, insisting that since the U.S. was more of a global presence than other countries, it was important to be sure that its military personnel would never be brought before the ICC, no matter what their alleged offenses. The global military reach of the U.S. by way of hundreds of overseas bases, special forces covert operations, and naval patrols around the globe should enjoy immunity on a individual level, as impunity on a collective level of state responsibility. The impulse is understandable given the degree to which U.S. global security activities are so often conducted in ways that violate the most basic prohibitions of international criminal law.

 

In other words, non-accountability and double standards have deeper political roots in the bipartisan soil of American security politics than the extreme anti-internationalism of Trump. These tactics of self-exemption from legal accountability can be usefully traced back at least as far as the ‘victors’ justice’ approach to war crimes during the second world war where only the crimes of the defeated countries were subjected to accountability at Nuremberg and Tokyo, a step hailed in the West as a great advance despite its flaws. It was deeply flawed considering that arguably the most horrifying and least forgivable act during the four years of hostilities were the atomic bombs dropped on Japanese cities. Is there any serious doubt that if Germany or Japan had struck cities of the Allies with the bomb, and yet lost the war, those responsible for the decisions would have been held accountable, and harshly punished?

 

In some ways as bad from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest advisors for their state crimes, although the 2003 Iraq War arose from acts of aggression by the United States and UK, and subsequent crimes during the prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous accountability for those leaders of countries defeated in war by the United States. Such ‘exceptionalism’ affront the conscience of anyone who shares the view that ideas of fairness and equality should be affirmed as core values in the application of international criminal law.   

 

As might be expected, mainstream NGOs and liberal Democrats are not happy with such an insulting and gratuitous slap in the face of international institutions that have previously proved mainly useful in going after the wrongdoing of non-Western leaders, especially in Africa. It should be remembered that African countries and their leaders were the almost exclusive targets of ICC initiatives during its first ten years, and it was from Africa that one formerly heard complaints and threats of withdrawal from the treaty, but I doubt that ideas of sanctioning the ICC ever entered the imaginary of the understandable African displeasure at an implicit ethos of ‘white crimes don’t matter’!

 

David Sheffer, the American diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve American geopolitical interests in the process, expressed the liberal opposition to Trump’s arrogant style of pushback with these words: “The [Trump] Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.” There is an element of hypocrisy present in such a denunciation due to withholding the pre-Trump record of one-sided imposition of international criminal law.  True enough, it was the prior Republican president that had locked horns with the ICC some years ago, but the ambivalence of Congress and the Clintons is part of a consistent American insistence of what I would label as ‘negative exceptionalism,’ that is, the right to act internationally without accountability while taking a hard line on holding others accountable; impunity for the powerful, accountability for the weak. It used to be that American exceptionalism was associated with a commitment to decency, human rights, the rule of law, and a visionary approach to world order that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification, which was never deserved or appropriate, has long since been forfeited at the altar of global geopolitics, whose players make up the rules as they go along, while showing contempt for the legal constraints that are deemed suitable for the regulation of their adversaries.

 

Finally, it should be appreciated that while geopolitical actors can get away with murder, their rogue behavior is a precedent for all states, and weakens and undermines what fragile procedures exist to uphold the most basic norms of international law.

 

 

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Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

 

[Prefatory Note: What is posted below is an Amicus Brief submitted to the International Criminal Court in The Hague on 16 March 2020 in the jurisdictional phase of a proceeding in which to initiate such a legal proceeding and whether the ICC has jurisdiction, that is, legal authority to investigate and possibly prosecute such alleged. As the Prosecutor indicated, the facts at her disposal indicate a basis for accepting Palestine’s request forPearce  an investigation of alleged Israeli criminal conduct on three clusters of issues: (1) military operations in Gaza in 2014, (2) unlawful aspects of Israeli settlements, aand (3) use of excessive force against protesters at the Gaza border in The Great March of Return. The focus of this procedural phase is whether Palestine is ‘a State’ in relation also suggest evidence of criminal behavior by Hamas that she believes within her jurisdictional orbit. The ICC has deferred further proceedings in view of the COVIS-19 pandemic, which has led to protests from concerned NGO groups and activists. The brief was prepared with major research assistance from Pearce Clancy and Susan Power of Al Haq for which I am extremely grateful. In the background is the undisguised and bitter hostility of the Government of Israel and its political leaders to Palestine for seeking an international assessment of their contention of Israeli criminality almost as if a legal challenge to Israeli impunity is itself immoral. The United States vents its fury and threats in an analogous manner at the ICC because it had the temerity to agree to investigate charges of U.S, war crimes in Afghanistan. There will be no global rule of law so long as geopolitical actors are made the beneficiaries of double standards in the application and implementation of international law. Earlier the ICC was almost solely preoccupied with allegations involving Africa, and there was an understandable African complaint that its countries were being singled out, while criminality of the West was not even investigated. While this turn by the ICC angering Israel and the United States delegitimizes the ICC for the hegemonic West, it lends the ICC much needed legitimacy among many non-Western States and most human rights NGOs.]   

 

 

Original: English

No.: ICC-01/18
Date: 16 March 2020

Before:

Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

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Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

No. ICC-01/18 1/29 16 March 2020

Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

  • ·
  • ·
  • ···
  • ····
  • ·

Professor John Quigley
Guernica 37 International Justice Chambers
The European Centre for Law and Justice
Professor Hatem Bazian
The Touro Institute on Human Rights and the Holocaust
The Czech Republic
The Israel Bar Association
Professor Richard Falk
The Organization of Islamic Cooperation
The Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs
MyAQSA Foundation
Professor Eyal Benvenisti
The Federal Republic of Germany Australia
UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
The Palestinian Bar Association
Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond- Barak, Prof.

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No. ICC-01/18

2/29

16 March 2020

Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker The International Association of Jewish Lawyers and Jurists

Professor Asem Khalil and Assistant Professor Halla Shoaibi
Shurat Hadin – Israel Law Center Todd F. Buchwald and Stephen J. Rapp

Intellectum Scientific Society
The International Commission of Jurists
Dr. Robert Heinsch and Dr. Giulia Pinzauti
The Republic of Austria
The International Association of Democratic Lawyers
The Office of Public Counsel for the Defence
The Honourable Professor Robert Badinter, the Honourable Professor Irwin Cotler, Professor David Crane, Professor Jean-François Gaudreault- DesBiens, Lord David Pannick and Professor Guglielmo Verdirame
The Palestinian Center for Human Rights, Al-Haq Law in the Service of Mankind, Al- Mezan Center for Human Rights and Aldameer Association for Human Rights
The Federative Republic of Brazil Professor Malcolm N Shaw
Hungary
Ambassador Dennis Ross
The International Federation for Human Rights, No Peace Without Justice, Women’s Initiatives for Gender Justice and REDRESS Professor William Schabas International-Lawyers.org
The League of Arab States
Me Yael Vias Gvirsman
The Popular Conference for Palestinians Abroad
The Israel Forever Foundation
Dr. Frank Romano
Dr. Uri Weiss
The Republic of Uganda

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No. ICC-01/18 3/29

16 March 2020

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Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

No. ICC-01/18 4/29 16 March 2020

  1. Introduction
  1. Following the submission of an application for leave to submit as part of the present proceedings,1 and its subsequent acceptance by this Chamber,2 this amicus curiae submission will address the question directed to the Chamber, namely that of the territorial jurisdiction of the Court in a future investigation into the Situation in Palestine.3
  2. Mindful of the fact that a pronouncement by the Chamber on the question of jurisdiction at this stage is controversial,4 this amicus argues that should a ruling be made at this stage, it must recognise the jurisdiction of the State of Palestine as pertaining to the entirety of the occupied Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip. The legal argument will be presented in two stages. Section II will deal with the underlying question of Palestinian statehood under international law, noted as a prerequisite for invoking the jurisdiction of this Court by the State of Palestine, arguing that the Court should be satisfied that Palestine’s status as a State for the purposes of the Court’s statutory framework allows exercise of such authority, and that the principles of interpretation by which the Court operates mandates such a conclusion. Section III will regard the question of statehood as resolved, and address the territorial jurisdiction of each component of

1 Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence (13 February 2020) ICC-01/18-24.

2 ICC, Decision on Applications for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence (20 February 2020) ICC-01/18, para 55, 56.

3 See ICC, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (22 January 2020) ICC-1/18-12 (henceforth the “Request”) at para 220.

4 ICC, Request Under Regulation 46(3) of the Regulations of the Court: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (6 September 2018) ICC-RoC46(3)-01/18, para 27; ICC, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut (6 September 2018) ICC- RoC46(3)-01/18-37-Anx; see, however, Anthony Abato, ‘False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC (9 March 2020), available at: https://www.ejiltalk.org/false- positives-false-negatives-and-prosecutorial-discretion-regarding-the-jurisdiction-of-the-icc/: “When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.”

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No. ICC-01/18 5/29 16 March 2020

occupied Palestinian territory, arguing that the Court’s jurisdiction extends to the West Bank, East Jerusalem, and the Gaza Strip.

  1. The Issue of Statehood
  1. While recognising the scope set by the Pre-Trial Chamber (PTC) within which amici curiae have been requested to abide, I concur with the recognition by the Prosecutor that the Court’s territorial jurisdiction over the territory belonging to the State of Palestine is contingent upon the legitimacy of that State’s claim to statehood.5 Accordingly, and as outlined in the Request for Leave pursuant to Rule 103 of the Rules of Procedure and Evidence,6 this section will provide a brief analysis of the question of Palestinian statehood within the framework of the Rome Statute.7
  2. It is submitted that as a matter of substantive international law, Palestinian statehood has been resolved. While not indicative of statehood in and of itself,8 the recognition thereof by the United Nations (UN) General Assembly in Resolution 67/19 of 4 December 20129 is indicative of widespread academic opinion and State practice.10 Also highly relevant, the

5 Request at para 7; see also Article 12, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (henceforth the “Rome Statute”).

6 ICC, Rules of Evidence and Procedure (2nd edn, 2013).
7 See Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and

Evidence (13 February 2020) ICC-01/18-24, at para 4.

8 Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A comment on Ambos’ ‘Palestine, ‘Non- Member Observer’ Status and ICC Jurisdiction’’ (27 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status- and-icc-jurisdiction/#more-10954; it has been compellingly argued that the modern Palestinian State long pre- dates recognition by the General Assembly, see, inter alia, Victor Kattan, ‘Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I’ (9 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/09/muddying-the-waters-a-reply-to-kay-and-kern-on-the-statehood-of-palestine- and-the-icc-part-i/; Victor Kattan, ‘Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern’ (20 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/20/muddying-the-waters-still- further-a-response-to-steven-kay-and-joshua-kern/.

9 UN General Assembly Resolution 67/19 (4 December 2012) UN Doc. A/RES/67/19 at para 2: “[d]ecides to accord to Palestine non-member observer State status” (emphasis added).

10 See, inter alia, John Quigley, ‘ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC’ (5 February 2020) Opinio Juris, available at: https://opiniojuris.org/2020/02/05/icc-and-palestine-symposium-general-assembly-resolution-67-19-and- palestine-as-a-state-before-the-icc/, arguing that Resolution 67/19 was conclusive; also John Quigley, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016).

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State of Palestine has been diplomatically recognised by a reported 140 States,11 has been afforded full membership of the UN Educational, Scientific and Cultural Organization (UNESCO),12 inducted into the Court’s Assembly of States Parties (ASP),13 recognised and been reviewed by UN human rights treaty bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) in July 201814, the UN Committee for the Elimination of Racial Discrimination (CERD) in August 201915, the UN Committee on the Rights of the Child (CRC) in January 202016, and soon the UN Committee Against Torture (CAT)17, as being capable of conferring jurisdiction under the relevant international human rights treaties, while it has further acceded to myriad international

11 As reported in UN General Assembly, Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (4 August 2019) UN Doc A/74/35, para 17.

12 UNESCO, General Conference admits Palestine as UNESCO Member (31 October 2011), available at:

http://www.unesco.org/new/en/media-services/single- view/news/general_conference_admits_palestine_as_unesco_member/; UNESCO, Records of the General Conference, 36th session (25 October-10 November 2011) VI General Resolutions, at para 76; note also that considerable weigh has been put on Palestine’s status as a UNESCO member, see Jure Vidmar, ‘Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state’ (22 November 2018) available at: https://www.ejiltalk.org/palestine-v-united-states-why-the-icj-does-not-need-to-decide-whether-palestine-is- a-state/; William Schabas, ‘Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute’ (3 November 2011) PhD studies in human rights, available at: http://humanrightsdoctorate.blogspot.com/2011/11/relevant-depositary-practice-of.html; Michael Kearney, ‘The Situation in Palestine’ (5 April 2012) Opinio Juris, available at: http://opiniojuris.org/2012/04/05/the-situation- in-palestine/.

13 ICC, Welcoming ceremony for a new State Party: State of Palestine (1 April 2015).

14 See Article 25, Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) 1249 UNTS 13: “The present Convention shall be open for signature by all States”; see also CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1.

15 See Article 17(1), International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 UNTS 195 (henceforth “ICERD”): “This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention”; CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2; see also decision at CERD, Inter-State communication submitted by the State of Palestine against Israel (12 December 2019) UN Doc CERD/C/100/5 (henceforth the “CERD Decision”).

16 See Article 46, Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3: “The present Convention shall be open for signature by all States”; see also CRC, Concluding Observations: State of Palestine (6 March 2020) UN Doc CRC/C/PSE/CO/1.

17 Article 25, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85: “This Convention is open for signature by all States”; see also Palestine’s State Report: State of Palestine, Initial report submitted by the State of Palestine under article 19 of the Convention, due in 2015(26 August 2019) UN Doc CAT/C/PSE/1.

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treaties and human rights instruments, including the Apartheid Convention18, Rome Statute,

the four Geneva Conventions and their Additional Protocols.19

  1. Nonetheless, an analysis as to statehood appears to be necessary, given the prerequisite

found in Article 12, as well as the corpus of argumentation outlined in amici applications in preparation of the current proceedings. That said, it is submitted that the PTC is bound to consider this issue as a matter of procedural, as opposed to substantive law. I agree with the Prosecutor in her opinion that the determination to be made by the Court is not whether Palestine constitutes a State as a matter of general international law, but solely for the purposes of the Court’s jurisdiction under the Rome Statute.20

  1. The PTC therefore need not consider what have been dubbed the “Montevideo Criteria”21 of statehood.22 Instead, the PTC need only consider whether the referral submitted by the State of Palestine23 is consistent with the terms of Article 12(2)(a) of the Rome Statute, having reference to the accepted rules of interpretation outlined in the Vienna Convention

18 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entry into force 18 July 1976) UN General Assembly Resolution A/RES/3068(XXVIII).

19 Request, para 127; note also Victor Kattan, ‘The Implications of Joining the ICC after Operation Protective Edge’ (2014) 44(1) Journal of Palestine Studies 63: “The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood.”

20 Request, para 42, 111; Alain Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ (2010) 6, available at: https://iccforum.com/media/background/gaza/2010-02-18_Pellet- Memo_(English_Translation).pdf.

21 Article 1, Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934): “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

22 In any case, the Montevideo Criteria should not be viewed as a rigid yardstick with which to judge statehood, on this, and the context in which the Convention was drafted, see Quigley op cit (2020); see also James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2007) at 437: “… the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even hackneyed.”

23 State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 May 2018).

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on the Law of Treaties,24 and the object and purpose of the Rome Statute, namely to end

impunity for international crimes.25

  1. As the Prosecutor has compellingly argued, the status of a “State” within the context of

Articles 12(1), 12(2), and 125(3) of the Rome Statute, being consistent throughout, has been concretely achieved by the deposit of Palestine’s instrument of accession with the UN Secretary-General.26 The so-called “all States” formula embedded in the framework of the Rome Statute27 necessarily links the eligibility criteria for accession to determinations of the General Assembly.28 Thus, accession to the Rome Statute contains an implicit “statehood check”, whereby the Secretary-General confirms whether the entity attempting to accede constitutes a State under international law. While deference to the pronouncements of the General Assembly is controversial to some observers, it must be stressed that this approach is consistent with previous Court practice regarding Palestine,29 and is desirable to avoid a situation in which the final pronouncement on statehood for the purposes of a given instrument falls entirely on the Secretary-General.30

  1. The question, therefore, is not whether Palestine constitutes a State as such, but whether, through its accession to the Rome Statute, as well as other instruments and fora, it has

24 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (henceforth the “VCLT”).

25 Request, para 29: “to end impunity and ensure that the Court’s jurisdiction is triggered responsibly and lawfully”; ICC, Separate Opinion of Judge Péter Kovács (27 January 2016) ICC-01/15-12-Anx-Corr, para 65: “a policy running against the basic philosophy of the ICC, namely to end impunity”; Preamble, Rome Statute: “the most serious crimes of concern to the international community as a whole must not go unpunished”; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) 77: “… its role is also geared towards preventing or deterring future atrocities”; interestingly it is worth noting Vidmar’s contention, op cit, in the context of the International Court of Justice: “… regulating an entity’s legal status is clearly not the object and purpose of the treaty” (emphasis added).

26 Request, para 103.
27 Article 125(3), Rome Statute.

28 See Treaty Section, UN Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999) UN Doc. ST/LEG/7/Rev.1, paras 81-83.

29 While the former Prosecutor refrained from opening an investigation due to concerns of jurisdiction, his analysis suggests that his Office’s position would have been different had the General Assembly passed Resolution 67/19 by that time, see Office of the Prosecutor, Situation in Palestine (3 April 2012) at paras 5, 7, available at: https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A- FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.

30 Request, para 109.

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9.

attained the full suite of rights and obligations found therein; here, the answer should be in the affirmative, given Palestine’s acceptance as both a State Party and functional member of the international community. This approach, referred to as the “functionalist approach” has a strong basis elsewhere in the field of international law,31 and has been widely endorsed, explicitly or otherwise, by commentators as the appropriate lens for the Court.32 This was appreciated recently by CERD in its jurisdictional finding on the Inter-State Complaint submitted by Palestine, which did find it necessary to extend its analysis beyond Palestine’s status, and functional capacity to act, as a State Party to ICERD.33

Moreover, it should be stressed that this approach is not merely consistent with the object and purpose of the Rome Statute, but is arguably mandated by the “General Rule” of interpretation.34 As previously affirmed by the Court, this judicial body is not permitted to decline to draw on a particular element of the “General Rule”,35 and should interpret all sources of law in light of the object and purpose of the Rome Statute,36 while doing what is necessary to avoid results that are unreasonable, or produce absurdities and unjust results.37 The Rome Statute thus requires its interpretation to be carried out in light of internationally

31 While not directly applicable to the Rome Statute framework, the best example of this is the so-called “Vienna Formula”, stemming from Article 81, VCLT, see: Schabas op cit; on the prevalence of functionalism elsewhere, see Pellet op cit, para 9.

32 See, inter alia: Valentina Azarova and Triestino Mariniello, ‘Why the ICC Needs a ‘Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context’ (2017) 11(1) Diritti Umani e Diritto Internazionale (Human Rights and International Law) 152-154; Pellet op cit; Kai Ambos, ‘Palestine, UN Non-Member Observer Status and ICC Jurisdiction’ (6 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/; Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016) 31-35; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen’ (2010) 8 Journal of International Criminal Justice 329; Al-Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under Article 12(3) of the Rome Statute (14 December 2009).

33 CERD Decision, para 3.9. 34 Article 31(1), VCLT.

35 ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga: Judgement pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, para 44.

36 Ibid., 47.
37 ICC, Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo (21

March 2016) ICC-01/05-01/18, paras 80-81.

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recognised human rights norms,38 which must necessarily include the long recognised right of the Palestinian people to self-determination, a jus cogens norm,39 which gives rise to obligations erga omnes, binding on all States.40 As certain acts by the State of Israel in the occupied Palestinian territory create obligations of such a character,41 this must be considered in the PTC’s interpretative calculus. The Prosecutor alludes to this in her Request, wherein she notes that “[i]t would appear contrary to the principle of effectiveness42 and good faith to allow an entity to join the ICC but then to deny the rights and obligations of accession … the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.”43

  1. It is useful to dwell on the implications of a negative determination of Palestine’s standing as a State Party before the Court: “[w]ould a referral and the deposit of the instrument of accession … be deemed invalid? Would that State Party be expelled from the Court? Or would it become a sui generis State Party which can still participate and vote in the ASP … even though the Court may not have jurisdiction over such a State?”44 If such a perverse approach were adopted, Palestine would be rendered as akin to a “legal black hole”, despite its accession.45

38 Article 21(3), Rome Statute.

39 Antonio Cassese, International Law (2nd edn, Oxford University Press, 2005) 65; Malcolm N Shaw, International Law (6th edn, Cambridge University Press, 2008) 808; James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (25 January 2012) para 26, available at: https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.

40 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 (Advisory Opinion) (1971) para 29 (henceforth the “Namibia Opinion”).

41 ICJ, Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) para 155-156 (henceforth the “Wall Opinion”).

42 Defined in ICC, Joint Concurring Opinion of Judges Eboe-Osuji,Morrison, Hofmanski and Bossa (6 May 2019) ICC-02/05-01/09-397-Anx1 at para 419: “a principle which gives preference to that interpretation of a treaty which best promotes its major purposes”, quoting Myers McDougal and Richard Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 261.

43 Request, para 114. 44 Ibid.
45 Shany, op cit, 337.

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  1. It would therefore appear that, in any event, a negative determination by the PTC at this stage would be manifestly incompatible with the object and purpose of the Rome Statute and the inclusive goals of the Court. As such, attempting to deviate from the functionalist approach, outlined above and adopted by CERD, and to apply the so-called “Montevideo criteria”, would seem an ultra vires act by the Court, as well as being an overly rigid and ill-advised step inconsistent with “the basic philosophy” of the Court which “might result in an increase in the impunity gap.”46

III. The Issue of Territorial Jurisdiction

  1. The issue of statehood so resolved, the amicus observations now turn to the territorial scope of a potential future investigation.47 It is submitted that the same principles and rules of interpretation that guide the Chamber in its determination on the issue of Palestinian statehood should also apply here. With due regard for the “General Rule”, the principle of effectiveness, and due regard for internationally recognised norms of human rights, particularly the collective right of self-determination, it is clear that to provide a meaningful method with which to end impunity for international crimes, the scope of a future investigation by the Prosecutor should encompass the entirety of the occupied Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip. Moreover, as noted by the Prosecutor, it is appropriate to stress that a determination as to jurisdictional scope here should not be conflated with a delineation of the Palestinian territorial claim as such.48
  2. While an extended analysis of the events leading to the beginning of the occupation of the occupied Palestinian territory in 1967 does not require reiterating here,49 and will

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

49 For helpful narration, see Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44(1) Harvard International Law Journal 69-85; for events prior to 1948, see also Victor

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doubtlessly be provided in detail by other amici, it is useful at this stage to recall the status of the occupied Palestinian territory as occupied since 1967, as it represents the current Palestinian State’s territorial claim.50 This claim has been bolstered51 by the territorial nature of the Palestinian right to self-determination, including permanent sovereignty over natural wealth and resources, as repeatedly recognised by, inter alia, the UN General Assembly,52 the Human Rights Council,53 and the ICJ.54 Accordingly, just as the Chamber is bound to consider this right in its interpretation on the issue of statehood, it should be considered during its analysis as to the extent of its jurisdiction.

  1. Moreover, the legal importance of the maintenance of the character of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, as a single territorial unit, has been repeatedly recognised by the international community, including by the UN Security Council,55 and General Assembly.56 It is further

Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891- 1949 (Pluto Press, 2009).

50 See ICJ, Written Statement Submitted by Palestine (30 January 2004) para 547; State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 Mary 2018), fn 4.

51 On this see Request, para 194, fn. 612, quoting Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol. 1, Peace: Parts 2 to 4 (Longman, 1996) para 274: “[i]t is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. State and territory are, in the traditional law, complementary terms. Normally only a state can possess a territory, yet that possession of a territory is the essence of the definition of state. The infusion of the concept of the rights of a ‘people’ into this legal scheme is therefore a change which is more fundamental than at first appears”; see also Crawford op cit, para 29: “In light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. As such, Israel does not acquire a legal right to or interest in land in the West Bank purely on the basis of its status as an occupier.”

52 See, inter alia, UN General Assembly Resolutions: 2649 (XXV) (30 November 1970) para 5; 67/19 (4 December 2012) UN Doc A/RES/67/19, para 1,4; 70/15 (4 December 2015) UN Doc A/RES/70/15, para 21(b); 71/23 (15 December 2016) UN Doc A/RES/71/23, para 22(b); 72/14 (7 December 2017) UN Doc A/RES/72/14, para 24(b); 793/96 (18 December 2018), preamble; 73/19 (5 December 2018) UN Doc A/RES/73/19, para 22(b); 73/255 (15 January 2019) UN Doc A/RES/73/255 para 1; 73/158 (9 January 2019) UN Doc A/RES/73/158.

53 Most recently, UN Human Rights Council Resolution 40/24 (17 April 2019) UN Doc A/HRC/RES/40/24. 54 Wall Opinion, para 122.

55 The Security Council declared any attempts to alter the “physical character, demographic composition, institutional structure, or status” of the oPt as being of “no legal validity” and “a flagrant violation of the Fourth Geneva Convention … and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace”, UN Security Council Resolution 465 (1 March 1980) UN Doc S/RES/465, para 5; see also Resolution 2334 (23 December 2016) UN Doc S/RES/2334, para 3.

56 UN General Assembly Resolutions: 70/15 (4 December 2015) UN Doc A/RES/70/15, para 11; 71/23 (15 December 2016) UN Doc A/RES/71/23 para 12; 72/14 (7 December 2017) UN Doc A/RES/72/14 para 13; 73/19 (5 December 2018) UN Doc A/RES/73/19 para 13; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8.

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necessary to clarify that Palestine’s claim to its territory, or indeed that of any State, is not contingent on having “defined and settled boundaries”57 or the exclusive authority to exercise jurisdiction, of any kind, therein.

  1. Nonetheless, due to the idiosyncratic legal complexities imposed by Israel upon each of the three geographic domains of the occupied Palestinian territory (the West Bank, including East Jerusalem, and the Gaza Strip), as part of the former’s campaign of strategic fragmentation imposed upon the Palestinian people as a whole,58 it is worth considering each territorial domain so as to clarify their specific relationship to the overall territorial claims of the State of Palestine, and as such to the scope of the Court’s jurisdiction.
  2. West Bank
  3. As noted above, the West Bank has been under belligerent Israeli military occupation since the 1967 War,59 which triggered the applicability of the Fourth Geneva Convention60 and Hague Regulations61 throughout the occupied Palestinian territory. Later, in 1993, a process began whereby the Palestine Liberation Organisation (PLO) and the State of Israel produced what became known as the Oslo Accords, which divided the West Bank into Areas A, B, and C.62 For the purposes of this analysis, it should be noted that a core aspect of these

57 Shaw, quoted in Request, fn. 608.

58 On this, see throughout UN ESCWA, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue No. 1, (2017) UN Doc E/ESCWA/ECRI/2017/1; see also, Al-Haq, et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports (10 November 2019), available at: http://www.alhaq.org/cached_uploads/download/2019/11/12/joint-parallel-report-to-cerd-on-israel-s-17th-19th- periodic-reports-10-november-2019-final-1573563352.pdf.

59 Wall Opinion, para 73, 101.
60 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,

entry into force 21 October 1950) 75 UNTS 287 (henceforth the “Fourth Geneva Convention”).

61 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land) (adopted 18 October 1907, entry into force 26 January 1910) (henceforth the “Hague Regulations”).

62 See Request, para 68.
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agreements is the exclusion of all Israelis in the occupied Palestinian territory from

Palestinian criminal jurisdiction.63

  1. A key component of the occupation’s machinery has been the construction and maintenance

of illegal Israeli settlements in the West Bank, including East Jerusalem.64 These settlements have largely been constructed on appropriated Palestinian land, which is typically seized under the pretext of “military necessity”, or through its designation, by the Israeli occupying authorities, as “State” or abandoned land65, and are predominantly located in Area C, which the Oslo Accords identify as being subject to Israeli jurisdictional control.

  1. It is submitted, in line with the analysis put forward by the Prosecutor, that the Oslo process, constitutive of “Oslo I” and “Oslo II”, does not create a legal barrier or challenge to the territorial jurisdiction of the State of Palestine, and therefore the Court.66 First, the Oslo Accords constitute a “special agreement” for the purposes of the Fourth Geneva Convention, and as such cannot deprive the Palestinian people of their inalienable rights and protections under international law and the Fourth Geneva Convention.67 Accordingly, the fact that the PLO has entered into such agreements with the State of Israel may not be interpreted as having relinquished the right of self-determination and permanent sovereignty over natural resources inherent to the Palestinian people, nor can it be interpreted as constituting a renunciation of any other rights conferred upon the protected population.

63 Ibid., para 70.

64 For a timeline of the Israeli settler enterprise, see UN Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East-Jerusalem (7 February 2013) UN Doc A/HRC/22/63, para 24-30.

65 Ibid., 20.
66 See Request, para 183.

67 Articles 7, Fourth Geneva Convention; Request, para 186; see also Basheer AlZoughbi, ‘The Operation of the Oslo Treaties and the Pacific Mechanisms of Conflict Resolution under Public International Law’ (2013) 45(2) Peace Research 39-40: “The transfer of power that was introduced in the aftermath of the Oslo Accords as a result of the agreements concluded between the PLO and Israel changed neither the status of the Occupied Palestinian Territory nor that of protected persons who were being deprived of the benefits of the 1949 Fourth Geneva Convention on a continuous basis … Thus, according to the Fourth Geneva Convention, Israel has legal obligations to honour the rights and ensure the welfare of those under occupation.”

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  1. Moreover, as also recognised by the Prosecutor, the provisions of Oslo II regarding the regulation of the jurisdiction of the Palestinian National Authority (PNA) relates solely to enforcement, as opposed to prescriptive jurisdiction, i.e. the ability to enforce, as opposed to create, law.68 Stahn, referenced extensively by the Prosecutor,69 draws this distinction most clearly: noting the separation of jurisdiction into these two categories, he contends that “[a]ny other conception would have detrimental consequences for international law. It would imply that a state that is unable to exercise jurisdiction over specific parts of its territory would lose its ability to investigate or prosecute offenders or to seize an international jurisdiction with the power to try offenders. This would create significant accountability gaps” (emphasis added).70 Crucially, the ability to confer jurisdiction on the Court is a matter of prescriptive jurisdiction.71

20.Stahn further observes that “[b]ilateral immunity agreements that award exclusive jurisdiction over specific categories of persons to another state do not extinguish the general capacity of the contracting state to allocate jurisdiction to another entity. If anything, such agreements demonstrate the inherent or pre-existing competence of the State to exercise such jurisdiction.”72 As such, the inability of the PNA to punish, prosecute, or otherwise enforce its laws against Israelis does not preclude the Court from investigating, charging,

68 Request, para 184; see also Ambos op cit: “Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction”.

69 See, in particular, Request, fn. 581-582.

70 Carsten Stahn, ‘Response: The ICC: Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Neo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) 49(2) Vanderbilt Journal of Transnational Law 450.

71 Ambos op cit: “… pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.”

72 Stahn op cit, 451, also 451-452: “If a state has conferred jurisdiction to the ICC, despite a previous bilateral treaty arrangement limiting domestic jurisdiction, the resolution of conflicting obligations becomes an issue of complementarity and cooperation. The ICC is not bound by the agreement of the State Party. It does therefore not have to apply the rule lex specialis derrogat lex generalis. It will instead have to assess whether there are any domestic investigations or not. In case of inaction, the ICC is generally competent to proceed with its own investigations and prosecution.”

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or prosecuting such individuals for international crimes committed within the occupied

Palestinian territory, including in Area C in the occupied West Bank.

  1. Alternatively, Al-Haq, a Palestinian human rights organisation, outlines the argument73 that grave breaches of international humanitarian law, such as the construction and maintenance of Israeli settlements, which have been recognised by the ICJ as amounting to violations of jus cogens norms giving rise to obligations erga omnes,74 create obligations on all States to take positive action to try or extradite those suspected of grave breaches of the Geneva Conventions.75 This obligation, it is argued, has been recognised as binding the PNA, without prejudice to the existence, or supposed non-existence, of a State of Palestine. As such, the purported inability of the PNA to fulfil this duty as a result of a strict interpretation of Oslo II, whether through the Court or otherwise, would amount to undermining recognised principles of international law; “[b]y this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international

humanitarian law, is on a par with proper states.”76

  1. Regardless of which approach the Court finds most compelling, Kearney is doubtless

correct in stressing that similar restrictions imposed by the Oslo Accords, such as the capacity to engage in international relations,77 are not reflected in State practice, by either third States or Palestine itself, nor is it conducive to the experience of international organisations and human rights bodies.78 The UN Commission of Inquiry addressing the 2018 protests in the occupied Palestinian territory (Commission of Inquiry) affirmatively

73 Originating in Al-Haq, Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (14 December 2009).

74 Wall Opinion, 88, 156.

75 See Article 146(2), Fourth Geneva Convention.

76 See Kearney op cit, 34-35.

77 See Request, para 71.

78 Kearney op cit: “It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people”.

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found that the PNA has obligations, under both international human rights and humanitarian law,79 applicable to “the entire OPT” (emphasis added),80 without distinction as to the Areas delineated in the Oslo Accords. This is further corroborated by, inter alia, CEDAW81, CERD82, and the CRC.83 As such, the Oslo Accords should not be deemed to be a barrier to the full exertion of the Court’s jurisdiction over the occupied West Bank as a whole.

  1. Finally, it has been argued that the Court’s jurisdiction may not be extended to, or would be of questionable authority, with respect to illegal Israeli settlements in the occupied West Bank.84 It is respectfully submitted that this argument represents the perfect opportunity to illustrate why Article 21(3) should be applied in interpreting the Court’s jurisdiction in Palestine. The construction and maintenance of illegal Israeli settlements in the West Bank, as well as East Jerusalem, has been well established to be in violation of internationally recognised principles of human rights law,85 including jus cogens norms, which give rise to obligations erga omnes. Accordingly, interpreting the Court’s, and indirectly the Prosecutor’s, jurisdiction as limited due to the presence of the settlements would be fundamentally incompatible with the Chamber’s obligation to interpret the relevant law in light of principles of human rights.
  2. East Jerusalem

79 UN Human Rights Council, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (25 February 2019) UN Doc A/HRC/40/74, para 708 (henceforth “Commission of Inquiry Report”).

80 Ibid., para 759.
81 CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1, PARA

82 CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2, para 3.

83 CRC, Concluding Observations: State of Palestine (13 February 2020) UN Doc CRC/C/PSE/CO/1, para 4.

84 For this argument, see Stephen Kay and Joshua Kern, ‘The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction’ (5 July 2019) Opinio Juris, available at: https://opiniojuris.org/2019/07/05/the- statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/.

85 See throughout, Human Rights Council op cit (7 February 2013); see also Committee for Economic, Social and Cultural Rights, Concluding Observations: Israel (12 November 2019) UN Doc E/C.12/ISR/CO/4, para 11, 16, 46.

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  1. East Jerusalem, or those portions of the city which lie beyond the Green Line, has been repeatedly affirmed and reaffirmed to be a part of the occupied Palestinian territory in countless UN General Assembly,86 Security Council,87 and Human Rights Council88 resolutions, as well as in the Wall Opinion issued by the ICJ.89 Moreover, actions which “purport to have altered the character, status or demographic composition of the Holy City of Jerusalem” have been deemed by the international community to “have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council”.90 While many proposals relating to the status of Jerusalem have been suggested,91 including the so-called corpus separatum proposed in the UN partition plan92, the territorial claim of Palestine to Jerusalem has never been refuted; tellingly, the importance of determining this issue with respect to the right of the Palestinian people to self-determination, including permanent sovereignty, was reiterated on the occasion of Israel’s induction into the UN.93
  2. While it is respectfully submitted that this should be sufficient to satisfy the Court as to its jurisdiction over East Jerusalem, given the importance of the city, both spiritually and as an

86 See, inter alia, UN General Assembly Resolutions: 36/120(D) (10 December 1981), para 5; 36/120(F) (10 December 1981), para 2; 72/15 (7 December 2017) UN Doc A/RES/72/15, preamble; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8, 12.

87 UN Security Council Resolutions: 465 (1 March 1980) UN Doc S/RES/465, para 5; 476 (30 June 1980) UN Doc S/RES/476, para 1; 478 (20 August 1980) UN Doc S/RES/478, para 3.

88 Most recently in UN Human Rights Council Resolution 40/23 (22 March 2019) UN Doc A/RES/40/23, para 15.

89 See, Wall Opinion para 119: “… the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem)”, also para 120: “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

90 UN General Assembly Resolution ES-10/19 (22 December 2017) UN Doc A/RES/ES-10/19, para 1, see also UN Security Council Resolutions: 252 (21 May 1968) UN Doc S/RES/252, para 2; 267 (3 July 1969) UN Doc S/RES/267, para 4; 298 (25 September 1971) UN Doc S/RES/1971, para 3.

91 See, for example, John V Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’ (1996) 45(3) Catholic University Law Review 781.

92 See Part III, UN General Assembly Resolution 181(II) (29 November 1947) UN Doc A/RES/181(II).
93 UN General Assembly Resolution 273(III) (11 May 1949) UN Doc A/RES/273(III), preamble, “[r]ecalling its

resolutions of 29 November 1947 and 11 December 1948”.

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integral component of the territory of Palestine, its status as occupied territory94, as well as the gravity of the situation on the ground, this section will provide further analysis as to the sovereignty and right to self-determination of the Palestinian people in the city, and its continuity ever since the British Mandate was established.

  1. During the British Mandate period, which commenced after the fall of the Ottoman Empire as a result of the peace diplomacy at Versailles, Palestine was categorised, under British rule, as a “Class A” mandate, along with others such as Iraq, Syria, and Lebanon. The ICJ declared that “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” as a “sacred trust” that pre-existed the creation of the Mandate system, and “continued to apply to League of Nations mandated territories”.95 Thus, the Palestinian people were recognised as having an inherent right to self-determination, even while under Mandate rule.96 The continuity of this right, which encompassed Jerusalem, the capital of Palestine during the Mandate, remained unbroken, including through the 1948 War. The Jewish Agency declared the establishment of the State of Israel following the seizure of the western part of the city of Jerusalem, and after a protracted campaign of ethnic cleansing directed towards the indigenous Palestinian people,97 the newly-established State of Israel immediately declared Jerusalem to be “Israel-occupied territory.”98 Nonetheless, a few

94 Wall Opinion, para 78.
95 Namibia Opinion, para 52; see also ICJ, International Status of South West Africa (Advisory Opinion) (11 July

1950).

96 On this, see Al-Haq, ‘Al-Haq Briefing Paper – 70 Years On: Palestinians Retain Sovereignty Over East and West Jerusalem’ (2018), available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/images/stories/PDF/Jerusalem_20%20Oct_final.pdf ; see also John Quigley, ‘Sovereignty in Jerusalem’ (1996) 45(3) Catholic University Law Review 778: Palestinians “had a right to sovereignty based on its connection to the territory, and on the principle of self- determination”.

97 See Henry Cattan, Jerusalem (St Martins’ Press, 1981) 48; also, generally, Ilan Pappe, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6; Ilan Pappe, The Ethnic Cleansing of Palestine (One World, 2006).

98 Israel Ministry of Foreign Affairs, 2 Jerusalem Declared Israel-Occupied City- Government Proclamation, available at: https://mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/2%20jerusalem%20declared%20israel- occupied%20city-%20governm.aspx.

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months later, in February 1949, Israel abolished military rule and instituted its own civil

administration in the city, amounting to de facto annexation.99
27. East Jerusalem was among the Palestinian territories occupied by Israel during the 1967

War. As noted by the UN Secretary-General in 1967, “[t]he Israel authorities … stated … that the municipality of West Jerusalem began operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the agent of the Military Government, but from 29 June municipal processes started to function according to Israel law.”100 The extension of annexation from the western to the eastern part of the city, as well as neighbouring Palestinian villages101, made it clear that “Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before 1967.”102 The annexationist extension of Israeli authority over East Jerusalem and the surrounding area through the shifting and redrawing of municipal boundaries adheres to the so-called “Jerusalem 2020 Master Plan”, designed to achieve “spatial segregation”103 within the city, instituted with the ultimate aim of the strategic fragmentation of the Palestinian people104, and the demographic manipulation of the city, restricting the Palestinian presence to 30 percent of the population.105

99 Israel Ministry of Foreign Affairs, 4 Jerusalem-s Military Government Abolished- Government Proclamation, available at: http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/4%20Jerusalem- s%20Military%20Government%20Abolished-%20Gover.aspx.

100 UN Security Council, Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating to Jerusalem (12 September 1967) UN Doc S/8146, para 28.

101 See B’Tselem, East Jerusalem (11 November 2017, last updated 27 January 2019), available at: https://www.btselem.org/jerusalem.

102 Ibid., para 33.

103 Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004), section 7: “… spatial segregation of the various populations groups in the city is a real advantage … It is appropriate, therefore, to direct a planning policy that encourages the continuation of spatial segregation with a substantial amount of tolerance and consideration”, available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/en/wp- content/uploads/2018/03/LocalOutlinePlanJerusalem2000.pdf.

104 See UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk (13 January 2014) UN Doc A/HRC/25/67, para 23.

105 Jerusalem Municipality, op cit, section 7: “Demographic Balance ‘According to Governmental Decisions’ – This goal, as presented by the municipality and adopted in governmental discussions regarding the matter, seeks to maintain a ratio of 70% Jews and 30% Arabs.”

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  1. The annexation of East Jerusalem, made effective in 1967, was formalised in Israeli law in 1980 with the passing of the “Basic Law: Jerusalem, Capital of Israel,” of constitutional status, envisaging “Jerusalem, complete and united [as] the capital of Israel.”106 This formalisation was condemned as “null and void” by the UN Security Council.107 The culmination of Israel’s annexationist policies to alter the demographic character of the city occurred with the erection of the Annexation Wall, which cemented Israel’s acquisition,108 and illegal annexation,109 of Jerusalem by military force and the coercive displacement of the indigenous Palestinian population, in direct contravention of international law110. As the acquisition of territory by force, as extended by occupation or annexation, cannot vest sovereignty in a belligerent or occupier, the actions taken by Israel in 1948, 1967, and 1980 are ineffectual in vesting Israel with sovereignty over Jerusalem, in particular occupied East Jerusalem.
  2. It is pertinent to give consideration to the Palestinian residents of East Jerusalem, who are not treated in accordance with human dignity, but rather as a demographic challenge by the Israeli authorities. While the State of Palestine is unable to confer citizenship upon residents, Israel refuses to extend similar rights upon Palestinian East Jerusalemites, and instead subjects them to a precarious “permanent residency” status, which may be revoked at any time.111 Moreover, such status may be, and often is, revoked punitively, as part of

106 Knesset, Basic Law: Jerusalem, Capital of Israel, translation available at: https://www.knesset.gov.il/laws/special/eng/basic10_eng.htm.

107 UN Security Council Resolution 478 (20 August 1980) UN Doc S/RES/478.

108 Article 2(4), Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI.; see also Wall Opinion, para 1; UN Security Council Resolution 2334 (23 December 2014) UN Doc S/RES/2334, preamble.

109 Article 47, Fourth Geneva Convention.

110 See Wall Opinion, para 122: “…the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council … There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.”

111 This was introduced by Knesset, Entry into Israel Law (5710/1950), available at: https://www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/40-Entry-into- Israel-Law-1952.pdf.

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unlawful campaigns of collective punishment, under the vague pretext of a “breach of

allegiance” to the State of Israel.112

  1. Israel’s framework of control over East Jerusalem does not, in any way, provide for the

Palestinian pursuit of political, social, and cultural development, nor the vindication of their inalienable rights under international law, and thus is incompatible with their inherent right of self-determination.113 This manifest and prolonged breach of the collective right of Palestinian East Jerusalemites must be used as a basis, in line with Article 21(3) of the Rome Statute, in interpreting the extent of ICC jurisdiction; it is the Israeli authorities who exercise control over the annexed city and are responsible for the ongoing campaign of rights violations and alleged international crimes. Any move to exclude East Jerusalem from Palestinian jurisdiction would improperly contribute to unending Israeli impunity.

  1. Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.
  1. The Gaza Strip
  2. As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

112 See Al-Haq, Punitive Residency Revocation: the Most Recent Tool of Forcible Transfer (17 March 2018), available at: http://www.alhaq.org/advocacy/6257.html.

113 Reference re: Secession of Quebec [1998] 2 R.C.S, at para 126.

114 See The Israeli-Palestinian Interim Agreement (Oslo II) (28 September 1995), available at: http://www.acpr.org.il/publications/books/44-Zero-isr-pal-interim-agreement.pdf, Article XI(1): “The two sides view the West Bank and the Gaza Strip as a single territorial unit”, and Article XVII(1): “In accordance with the DOP, the jurisdiction will cover West Bank and Gaza Strip territory as a single territorial unit …”; see also UN Security Council Resolution 1860 (8 January 2009) UN Doc S/RES/1860, preamble: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state”.

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claim, nor has it suspended obligations under international law to uphold the human rights

of Palestinians in Gaza.
33. The lack of control directly enjoyed by the PNA in Gaza has been well documented by the

Prosecutor,115 and while Israel argues that Gaza is no longer occupied, or has attained a sui generis status,116 the prevailing expert and UN view is that the territory remains occupied by Israel, despite the so-called removal of its illegal settlements from the Strip in 2005.117 As noted by Professor John Dugard in 2007, during his tenure as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, “[s]tatements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate … In effect, following Israel’s withdrawal, Gaza became a sealed off, imprisoned and occupied territory.”118 Thus, the ability of the PNA to control Gaza is hampered in part by the ongoing closure and measures of collective punishment imposed by Israel with the ultimate goal of rendering Gaza uninhabitable119; as noted by Darcy and Reynolds, “[w]hile events in Gaza have departed from traditional conceptions of warfare and occupation … sufficient clarity is retained when it comes to the effective control exercised by Israel over the Gaza Strip in order to categorize the territory as occupied.”120 As such, it is incorrect to view Gaza as unoccupied territory; the so-called ‘disengagement’ by Israeli forces in 2005 facilitated a new means of Israel’s domination and control,

115 See Request, para 80.
116 See, for example, Elizabeth Samson, ‘Is Gaza Occupied?: Redefining the Status of Gaza under International

Law’ (2010) 25(5) American University Law Review 915.

117 George E Bisharat et al, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38(1) Denver Journal of International Law & Policy 47-51; Shane Darcy and John Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15(2) Journal of Conflict & Security Law 223-242; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2009) 851-862.

118 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (29 January 2007) UN Doc A/HRC/4/17, para 6.

119 See UN, Gaza “Unliveable”, UN Special Rapporteur for the Situation of Human Rights in the OPT Tells Third Committee (24 October 2018), available at: https://www.un.org/unispal/document/gaza-unliveable-un- special-rapporteur-for-the-situation-of-human-rights-in-the-opt-tells-third-committee-press-release-excerpts/.

120 Darcy and Reynolds, op cit, 243.
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effectively amounting to a “reployment” of military capabilities exercising control of land

borders, airspace, and naval frontiers.121
34. It must be stressed that the partial control, hampered by continued Israeli occupation,

exercised by Hamas within Gaza does not produce a sui generis, quasi-state status; Hamas itself views Gaza as integral to Palestine,122 and rejects any suggestion that its administrative role in Gaza compromises Palestinian territorial integrity. Moreover, regardless of de facto control by Hamas, the PLO has been treated as the “sole legitimate representatives” of the Palestinian people by the League of Arab States,123 Israel,124 the UN General Assembly,125 and a United States federal appeals court.126 This may be observed in practice through the accepted claim by the PNA, controlled by the PLO, over Gaza’s territorial waters, in line with the Convention on the Law of the Sea127, asserting sovereignty over the “territorial sea, its airspace, and its bed and subsoil”.128 Thus, the link between the sovereign claim by the State of Palestine in the West Bank, including East Jerusalem, is fundamentally linked and congruent to that of the Gaza Strip.

121 Bisharat, op cit, 49.
122 See Hamas, Hamas warns against holding Palestinian elections separately (23 October 2019), available at:

https://hamas.ps/en/post/2382/hamas-warns-against-holding-palestinian-elections-separately.

123 League of Arab States, PLO sole legitimate representative of the Palestinian people – LAS Rabat Summit (28 October 1974), available on UN website at: https://www.un.org/unispal/document/auto-insert-194621/; see also Issa Al-Shuaibi, ‘The Development of Palestinian Entity-Consciousness: Part III’ (1980) 9(3) Journal of Palestine Studies 100.

124 Israel Ministry of Foreign Affairs, Israel-PLO Recognition: Exchange of Letters between PM Rabin and Chairman Arafat, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel- plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx.

125 The Assembly altered the designation of “Palestine Liberation Organization” given to the PLO to simply “Palestine”, thereby essentially conflating the two, see UN General Assembly Resolution 43/177 (15 December 1988) UN Doc A/RES.43/177, para 3; note, however, that this does not indicate that the PLO has become synonymous with Palestine as such, but rather is its internationally recognised conduit, see Azarov and Meloni op cit.

126 Universal Cable Productions LLC v Atlantic Speciality Insurance Company (12 July 2019) 9th Circuit, at 29: “Here, the Palestinian Authority is the de jure government”, available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/17-56672.pdf.

127 Convention on the Law of the Sea (adopted 10 December 1982, entry into force 16 November 1994).

128 State of Palestine Ministry of Foreign Affairs and Expatriates, Declaration of the State of Palestine regarding its maritime boundaries in accordance with the United Nations Convention on Law of the Sea, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PSE_Deposit_09-2019.pdf.

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  1. The PNA’s de jure jurisdictional claim over the Gaza Strip is further strengthened by the direct applicability of international human rights treaties acceded to by the State of Palestine therein. This has been affirmed by the Commission of Inquiry,129 and was seemingly taken as self-evident by CERD in its December 2019 jurisdictional decision.130 This has been further confirmed by other bodies such as CEDAW131 and CRC132. Indeed, the Commission of Inquiry “consider[ed] Hamas to be obligated to respect, protect and fulfil human rights” based on the accessions to various treaties by the State of Palestine,133 indicating that Hamas, as the de facto authorities in Gaza, are bound by obligations of the State of Palestine. Thus, there does not appear to be any general bar to the imposition of international statutory obligations upon either the Gaza Strip, or Hamas; instead, the State of Palestine is demonstrably capable of imposing such obligations.
  2. Moreover, within the specific framework of the Rome Statute, there does not appear to be any prohibition on the extension of the Court’s jurisdiction to the Gaza Strip, despite de facto control by Hamas. In the context of the occupied Georgian territory, referred to as South Ossetia, the PTC ruled that regardless of the lack of effective control by Georgia over that territory, “South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State.”134 In light of this decision, in a context wherein a separate State, although its legitimacy is questionable, had been declared, it would be inconsistent for the Court to deny the applicability of its jurisdictional reach due to the lack of de facto control over Gaza by the State of Palestine. Gaza is not the subject of an adverse separatist

129 See Commission of Inquiry Report, para 759, 768. 130 See throughout, CERD Decision.
131 CEDAW, op cit, para 9.
132 CRC, op cit, para 4.

133 Commission of Inquiry Report, para 759.

134 ICC, Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation (27 January 2016) ICC-01/15, para 6.

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claim, but rather functions and has been recognised as an integral component of the

occupied Palestinian territory.
37. Similarly, as the Court has previously made implicit designations on the competing claims

to legitimacy of opposing authorities,135 it is respectfully submitted that the Court should be satisfied with the State of Palestine’s internationally recognised de jure status as the competent authority over the entirety of the occupied Palestinian territory, and should not be deterred by its lack of de facto control. The Court’s sole consideration vis-à-vis the competency of Palestinian authorities to submit jurisdiction to the Court begins and ends with positions “clearly designated by the [de jure] State.”136 The implications of an alternative ruling would be a consolidation of the fragmentation of the Palestinian people; should the Gaza Strip be excluded from the remit of the Prosecutor’s investigation, the Court would further entrench the arbitrary fragmentation, imposed by Israel’s occupation machinery137, facilitating the creation and maintenance of a regime of impunity shielding accountability for the commission of international crimes.

  1. Conclusion
  2. Should the Court deem it necessary to make a jurisdictional ruling, under the auspices of Article 19(3), at this stage, it is respectfully submitted that it should rule that the entirety of the occupied Palestinian territory constitutes the legitimate territory of the State of Palestine, and is subject to the Court’s jurisdiction. While I am mindful of the importance and sensitivity of the issues presently before the Court to the objections of a sovereign State, however in this instance it has become abundantly clear that the broader legal considerations of extending legal accountability for international crimes should be given priority.

135 See ICC, Situation in Libya in the Case of the Prosecutor v Said Al-Islam Gaddafi: Decision on the Prosecutor’s “Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami AL-ATIRI, Commander of the Abu0Bakr Al Siddiq Battalion in Zintan, Libya” (21 November 2016) ICC-01/11-1/11, para 15.

136 Ibid., para 16.
137 See Richard Falk, ‘Israel’s Politics of Fragmentation’ (10 October 2010) Global Justice in the 21st Century,

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
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  1. Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
  2. The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
  3. If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

138 John Quigley, Situation in the State of Palestine: Submissions Pursuant to Rule 103 (John Quigley) (3 March 2020) ICC-01/18, para 59.

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context of the Rome Statute, and has the authority and competence to provide the Court with jurisdiction over the entirety of its territory, defined as the West Bank, including East Jerusalem, and the Gaza Strip, in line with the provisions of Article 12(3).

Professor Richard Falk

Dated this 16th day of March, 2020 At Istanbul, Turkey

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Should the Palestinians Seek Justice NOW at the International Criminal Court?

23 Feb

Should the Palestinians Seek Justice NOW at the International Criminal Court?

 

[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]

 

 

Weakening the Two-State Consensus

 There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.

 

With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.

 

An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.

 

In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.

 

Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”

 

It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.

 

Recourse to the ICC: Pros and Cons

 

The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.

 

The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.

 

There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.

 

Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.

 

There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.

 

Conclusion

 

In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.

 

The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.

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