Palestinians and ICC: What’s Next?

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With the United Nations (UN) General Assembly voting overwhelmingly last week to recognize Palestine as a “non-member observer state,” legal institutions once closed to the territories may soon be within its reach, including the International Criminal Court (ICC) in The Hague.

“You need ‘state’ status to open doors,” says international humanitarian lawyer Liesbeth Zegveld. “Statehood is an important pillar in international law. For Palestinian rights, this recognition is a positive step forward.”

Long process
Indeed in 2009, representatives of the Palestinian National Authority submitted a declaration to the ICC saying it recognised its authority retroactively to the start of the court on July 1, 2002. The court is not allowed to investigate crimes committed before that date.

But it took until this past spring, a full three years and many legal submissions and meetings later, for the then ICC prosecutor Luis Moreno-Ocampo to defer the situation to the UN and the member states of the court, saying he lacked the authority to rule if Palestine was a state and thereby a candidate for the ICC. 

International lawyers
Zegveld was one of about 20 international lawyers who in August sent a petition to ICC prosecutors asking them to seek the help of the court’s member states to consider the Palestinian request or refer the matter to the General Assembly. 

“That is now a moot point,” says Zegveld. “Because Palestine has state status by a clear majority of the General Assembly, it is sufficient for the ICC to re-consider the Palestinians’ request  regarding crimes committed during” the recent wars.

Legal implications
ICC prosecutors say they “will consider the legal implications of this resolution.” A state doesn’t have to be a UN member to become party to the court.

Back in September, current ICC prosecutor Fatou Bensouda said that just such a General Assembly vote could make the difference for the Palestinians. "What we have also done is to leave the door open and to say that if Palestine is able to pass that (statehood) hurdle at the General Assembly, then we will revisit what the ICC can do." 

The ICC was established to hold individuals accountable for the worst crimes committed by those in power: crimes against humanity, war crimes, aggression and genocide. Under its statute, specific crimes resulting from Israel’s occupation of Gaza and the West Bank could include apartheid, persecution, forced displacement, and extensive destruction and appropriation of property not justified by military necessity.

121 countries are members of the court and therefore fall under its jurisdiction. But Israel—and other big players like Russia, China and the United States—are not among them.

But if Palestine is able to become a state party to the ICC, the court will have jurisdiction over crimes committed on its territory—even if Israel isn’t a member. Similarly, any Palestinian could be held liable for crimes committed anywhere in the world, even in countries, such as Israel, that aren’t party to the court.

Prosecutors will now consider whether the Palestinian Authority’s 2009 instrument of succession is valid to start the process of it becoming a court member or if the Palestinian authorities need to file a new one.

If Palestine does become a party to the court, it will still have to be determined just how far back its jurisdiction will go, with hearings before judges on the issue likely. Palestinians are trying to hold Israeli officials accountable for actions in the 2008-2009 Gaza war against Hamas.

"Legal or diplomatic intifada"
The Palestinians have said they long planned to use non-membership statehood at the UN as a way to enter the ICC. One Palestinian negotiator, in talks with the International Crisis Group, called the strategy a "legal or diplomatic intifada" against Israel.

The International Court of Justice (ICJ), the UN’s highest judicial body that rules on disputes between states, ruled eight years ago that the Israeli-built barrier in the Palestinian territories is illegal, saying in an advisory opinion that construction should be halted and Israel should pay reparations for any damages.

While building settlements is not in itself illegal, it is if criminal means are used to achieve them, such as the destruction of property or the transferring of large numbers of people. In reaction to the UN General Assembly’s vote, Israel announced the following day that it would build 3,000 additional homes on occupied land near East Jerusalem, a move that was condemned by the United Nations, the US and the UK as threatening any hopes for a lasting peace.