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The situation in Palestine: Where has the ICC erred?

Building of the International Criminal Court [Wikipedia]
Building of the International Criminal Court, in Hague on 23 December 2019 [Wikipedia]

At the General Assembly's 67th session held on 29 November 2012, and with the vote of 138 countries, a resolution accepting Palestine as a non-member observer state of the United Nations (UN) was adopted. It enabled Palestine to participate in the work of the UN and to join international organisations and treaties.

One of the important agreements that the State of Palestine joined was the Rome Statute of the International Criminal Court (ICC). On 1 January 2015, the State of Palestine submitted a declaration to the ICC accepting the court's jurisdiction in the crimes committed in Palestine from 13 June 2014, and beyond. On 2 January 2020, the State of Palestine took another step by ratifying the Rome Statute, which came into force on 1 April 2015.

On 16 January 2015, the Office of the Prosecutor (OTP) of the ICC decided to open a preliminary examination into the crimes committed, based on the declaration of the State of Palestine, in which it accepted the court's jurisdiction. This investigation continued for almost five years.

On 20 December 2019, the Public Prosecutor's Office determined that all the statutory criteria under the Rome Statute for the opening of an investigation into the situation in Palestine had been met. However, the opening of a formal investigation was suspended for the need to submit a request to the Pre-trial Chamber, relying on Article 19(3) to determine the scope of the territorial jurisdiction in question. The request is still being reviewed by the Pre-trial Chamber.

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The OTP did not object to considering Palestine as a state based on various UN resolutions, particularly the decision on the Palestinian people's right to self-determination. However, it opened the door for discussion on the status and borders of Palestine.

The complex situation, according to the general prosecution, was due to the agreements signed between the Palestine Liberation Organisation (PLO) and Israel, which divided the areas into A, B, and C and gave privileges to the occupation at the expense of the Palestinians.

Netanyahu vows action against PA over ICC bid – Cartoon [Cartoon Latuff/MiddleEastMonitor]

The OTP has erred in its reliance on Article 19 since the article and its interpretations do not apply to the Palestine case, because the territorial scope, which is the crime scene listed in Article 5 of the Rome Statute, is specific and clear once the state concerned is a party to the Rome Statute. Otherwise, the opening of a preliminary investigation should not have been done if there has been a legal impediment which would have appeared when declaring the acceptance of jurisdiction and accession by the State of Palestine to the Rome Statute.

In 1989, the Swiss Depository of the Geneva Conventions refused the PLO accession to the Geneva Conventions because it is only for states. Should there have been any objection to the State of Palestine being party to the Rome Statute, the Swiss Depository, who is the secretary-general of the UN and the registrar of the court, would have raised the matter.

The agreements signed between Israel and the PLO are not obligatory to the OTP, as its contents and interpretations on the ground by Israel violate the imperative rules of international law, including the 1949 Geneva Conventions.

The OTP has violated the existing rules of international law, based on a prohibition stressed by the Rome Statute in Article 10. The ICC and the OTP are not competent in defining the borders of any state party to the Rome Statute. The borders of the State of Palestine are those of 4 June 1967, according to international law and the UN resolutions.

The borders are defined by maps preserved by the UN and ratified by clear resolutions. The most important of which is the right of the Palestinian people to self-determination on their territory by the General Assembly's repeated Resolution 3236 of 22 November 1974, and Security Council Resolution 2334 of 23 December 2016, which reiterated the demand for Israel to stop immediately, and in full, all settlement activities. The resolutions also cited that any changes to the borders of 4 June 1967, will not be recognised.

The OTP – which prolonged the preliminary investigation – could have asked the UN's competent body for an interpretation of the resolutions regarding the borders of the State of Palestine and its capital. Prolonging investigations for all this period is a clear exhaustion of the speedy justice principle.

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The State of Palestine is a unique case in the international community since it is a "state under occupation", but this matter is not incomprehensible. These complexities are the results of states favouring Israel and encouraging it to continue this occupation, which expands into colonialism. However, there is no doubt that Palestine has all the elements of the state, and the General Assembly confirms this, although it does not give it full membership.

The valid question that the OTP should ask is: if a state party had been subjected to aggression and occupation of all its territory or parts of it, and crimes were committed in the occupied parts, would the OTP ask the Pre-trial Chamber to determine the territorial scope of the jurisdiction? Of course not.

Moreover, the ICC is investigating crimes committed in Libya. A country that is still unstable, with two armies, two governments, each controlling a geographical area, and the OTP has not asked the Pre-trial Chamber to determine the scope for territorial jurisdiction.

What is more confusing, is that once the OTP asked the chamber before the court, the chamber set a timetable for those who wish to submit comments on the subject. Many reports were submitted including reports stating that Palestine is not a state and that the court is not competent, and these are, of course, supporters of Israel. Others argued on the competency of the territorial jurisdiction of the court, given that Palestine is a state. However, it is noteworthy that no one commented on the serious error made by the OTP, which was followed by the court.

Logically, and according to international law and all legal rules, the Pre-trial Chamber should have rejected the request of the OTP and obliged it to initiate a formal investigation, as the issue of the territorial scope has been resolved since the court's jurisdiction was accepted and the State of Palestine joined the Rome Statute.

Again, the court plunged itself into another problem. Following President Abbas' announcement on the dissolution of the agreements with the Israeli-US government on 19 May 2020, the court inquired about the matter, implying that it might affect the court's decision.

This inquiry should not have been sent by the court, since the whole matter does not fall under its jurisdiction, and these bilateral agreements between the PLO and Israel do not commit the court to anything.

It is signed in the name of the PLO and not in the name of the State of Palestine, and before the PLO disintegrated from it, Israel had disintegrated on the ground with the expansion of the settlement. The only thing that remained active in these agreements, is the security cooperation which Israel maintained because it serves its interests. However, after years of deception and control, Israel revealed its intention to annex settlements and the Jordan Valley.

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The Oslo Accords  – given its national and international legal controversies  – do not bind the Palestinian people to anything, especially after years of Israel's use of these agreements to undermine the right of the Palestinian people to self-determination, and the establishment of an independent state.

The Oslo Accords' zoning of A, B and C areas should not be the focus of a debate to determine the scope of the court's territorial jurisdiction. These zones would have disappeared if it were applied in good faith, but today, we have a state with the borders of 4 June 1967.

Oslo Accords, the 25th Anniversary – Cartoon [Sabaaneh/MiddleEastMonitor]

To obtain the status of a state, although incomplete at the UN, it was not the outcome of the Oslo Accords, but the sacrifices of a people's will to determine their own destiny, to establish their own state, and to exercise their rights under international law.

The court has exceeded its jurisdiction and slipped to consider political cases, due to failure of the work of the OTP and the lack of a clear body to challenge its decisions.

The OTP and the court's mission is to investigate the criminal case submitted before it, in order to achieve justice for the victims. All questions about Palestine and its borders are resolved in international law and Article 19(3) – on which the OTP relied – they are irrelevant, and should not have been applied to the territorial jurisdiction of Palestine.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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