“The establishment of the Court is a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law,” said former United Nations Secretary General Kofi Annan as he signed the treaty establishing the world’s first permanent international tribunal, the International Criminal Court (ICC).
Last week two Palestinian human rights groups travelled to the home of the ICC, The Hague, in a call for the Court to investigate the commission of crimes in the Occupied Palestinian Territories.
Al-Haq and the Palestinian Center for Human Rights (PCHR) met with Fatou Bensouda, the Prosecutor of the ICC, to present a legal opinion arguing that despite Palestine not having ratified the Rome Statute, the treaty which established the court, the ICC could still launch an investigation into the commission of crimes.
“It is now incumbent on the Office of the Prosecutor to confront the temporal and territorial ‘black hole’ in which the people of the state of Palestine have been locked for the past several decades,” read the legal opinion.
The legal opinion argues that the ICC can exercise its jurisdiction over the situation in Palestinian on the basis of a declaration submitted by the Palestinian leadership in 2009 accepting the jurisdiction of the court.
It is unlikely any party of the US brokered peace talks currently underway between Palestine and Israel will be supportive of the move; Israel and the US, both of which are not States Parties to the Rome Statute, have constantly reiterated their objection to the ICC path, whilst Palestinian leader Mahmoud Abbas seems to have frozen earlier efforts in light of the renewed negotiations.
Palestine’s 2009 declaration was originally rejected on the basis of questions regarding Palestinian statehood, a prerequisite for the ICC to extend its jurisdiction. The then Prosecutor Luis Moreno-Ocampo stated that it was not the role of his office, or the role of the Court to determine statehood, but maintained that, “The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.”
As Israel is also not a State Party to the Rome Statute, the Court can only exercise jurisdiction in a limited number of ways. One, if the United Nations Security Council (UNSC) refers the situation to the Prosecutor, which remains highly unlikely as the US would almost certainly block such action by using its veto power as a permanent member. Alternatively, if Palestine was to become a State Party to the Rome Statute, the Court could exercise jurisdiction over crimes committed on Palestinian territory. Finally, Palestine’s 2009 declaration accepting the jurisdiction of the Court could open up the situation in Palestine to ICC scrutiny.
Since the Prosecutors statement, the United Nation General Assembly voted by an overwhelming majority to upgrade the status of Palestine from “observer entity” to “non-member observer state.” After steadfast refusal to acknowledge Palestine’s UN bid, Israel’s Prime Minister Benjamin Netanyahu made a last ditch attempt to ensure that if the bid was successful Palestine would be unable to seek membership to the ICC.
The Palestine Liberation Organisation’s (PLO) spokeswomen commented on the threats Israel made to pressure Palestine ahead of and following the UN vote, “When we know where we are heading, we will respond, if Israel isn’t guilty of war crimes, than it has no need to fear the ICC.”
Despite the current Prosecutor claiming “the ball is now in the court of Palestine,” the Palestinian leadership has failed to follow up on the ICC path. The legal opinion argues that even without renewed action by the Palestinian Authority, the Court can still exercise jurisdiction.
Following the meeting with the Prosecutor, General Director of Al-Haq, Shawan Jabarin, stated, “With this opinion we are putting forward our position that the rights of Palestinian victims are not subject to compromise. Any negotiated agreement that sidelines the pursuit of justice through the ICC, is an agreement that lacks the representative support of Palestinian civil society.”
“Our role as Palestinian human rights organizations is to pursue justice and accountability regardless of negotiations and we condemn any pressure exerted to the contrary. This is especially important in light of the fact that violations of international law continue unabated despite ongoing negotiations.”
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