Palestine Joins ICC: Yay…or..Nay? – an informal note

Something is troubling my mind: Palestine is joining the International Criminal Court. What?!

The Palestinian Permanent Observer to the United Nations, Riyad H. Mansour, confirmed on Friday, 2nd of January 2015, that their government has submitted application to join the ICC to the UN Secretary General; alongside with other treaties application, including Geneva Conventions and its Additional Protocols, which are crucial instruments in preparation to the Rome Statute accession.

This is a fathomable move as a cry to convince the Security Council to vote on putting three-years-deadline to end Israel’s occupation on territories it conquered in 1967 fails after voted against by the United States and Australia; despite 22 supports from Arab states and 8 supports from the chairs of the 15 members of the Security Council.

Nevertheless, a question lingers in my head: is it a right move for Palestine to join ICC now?

They have been waited, yes, for more than 5 years – wait I think it’s more than 5 years but you know what I meant…The point is, I am not literally convinced that this is the right formula for Palestine.

In 2009 they made declaration accepting ICC jurisdiction over “acts committed in the Palestine territory since 1 July 2002” and filed it to the Registrar of the ICC. This is an ad hoc jurisdiction permissible by virtue of article 12.3 of the Rome Statute. Three years after such filing, the Prosecutor at time, Louis Moreno Ocampo, declined jurisdiction on the ground that the statehood of Palestine need to be resolved first. The Assembly of States Parties of the ICC had not determined this statehood issue and thus the relevant bodies, according to Mr. Ocampo, are the UN Secretary General, Security Council or General Assembly.

This situation came into fruition for Palestine when in 2012 the General Assembly, with support of more than 130 states, recognized Palestine statehood. This momentous result came out after the Security Council refused Palestinian request to join the UN. But not only that, broader support was gained elsewhere: French, Spanish, Irish and European Parliaments as well as Sweden and Iceland (individually) declared their recognition of the Palestine’s statehood.

So basically, Palestine has met Moreno Ocampo’s requirement to join the ICC? Straight and simple answer to that, yes. But to add, not only formal recognition from the General Assembly, but now Palestine has unity government between the PA and Hamas and they have decided to join the ICC.

I am a supporter of Palestine for freedom and equality but in question of whether Palestine is a state I think they need more than just formal recognition from the General Assembly. Of course it will be difficult now for the current Prosecutor to raise the statehood issue of Palestine. It will be Bensouda versus the world if she chose so. But lest we forget, in 1995 the Palestine and Israel government signed an “Interim Agreement on the West Bank and the Gaza Strip”, commonly known as Oslo II Accord or Taba Agreement.

By the virtue of this Agreement, West Bank was divided into areas A (full Palestinian control), B (Palestinian civil control and joint Palestinian-Israeli security control) and C (full Israeli civil and security control). This agreement is also called an interim agreement because it was supposed to be the basis for subsequent negotiations (note: several additional agreements were concluded following this Agreement but negotiations did not produce a final peace agreement between Palestine and Israel).

The most relevant part of this interim agreement is its Annex IV, which governs Legal Affairs including Criminal Jurisdiction (see here to review the interim agreement). Article 1.2 Annex IV of the agreement reads as follows: “Israel has sole criminal jurisdiction over the following offenses: a. offenses committed outside the Territory…b. offenses committed in the Territory by the Israelis”. Oh and by the way, in reading this article, please refer to West Bank and Gaza Strip for “Territory”.

My interpretation of the article is that Palestine has jurisdiction over Palestinians and non-Isralis in areas A and B and Israel has full criminal jurisdiction in area C and other areas outside the Territory.

So basically, offenses in area C of the Territory (West Bank and Gaza Strip) and the whole Palestinian territory are the rights of Israel to investigate. Not the Palestine. This is one dilemmatic situation that may relate to the discussion of the ICC and Palestine.

Another situation is that the United States, which is a great ally of Israel, has always been consistent in their position to against the idea that ICC could prosecute conduct by nationals of non-member states (Israel for example). Path for the Palestinian to seek justice by bringing Israelis criminal to the ICC may be burdensome by this position of the United States.

Hence, the question I may raise at this point is that, how the principle of complementarity of the ICC be implemented if the Palestine has no jurisdiction whatsoever under Oslo II?

Again, it is important to reinstate that Oslo II is an interim agreement, that is subject for future negotiations. So if the majority of countries now acknowledge Palestine as a state, what about lines and borders of the Palestine territory? Oslo II still stands until today unless final peace agreement was negotiated and concluded..right??

Another troubling issue for Palestine is that as member of the ICC, Palestine, if finally someday triggered ICC jurisdiction as member state, could not refer specific crimes to the Court, for example: crimes committed by Israelis in area X of Palestine territory in the period of June 2014. Rome Statute regulates that member state can only refer the “entire situation”, leaving it to the Prosecutor and its Office to investigate whatever crimes have been committed and who committed them. This is a double-edged sword, as both side of the Palestine and Israel will be under the scrutiny of the ICC Prosecutor. It is indeed problematic as Hamas leaders could face charges for war crimes of indiscriminate attacks on civilians. Here, one point of importance is that, unlike Israel that has consistently denied any allegations of it intentionally targeting civilians, Hamas and Islamic Jihad straightforwardly announced that they were targeting Israel cities (Please see point No. 32, 34 and 36 of the UN High Commissioner on human Rights’ Report No. A/HRC/22/35/Add.I dated 6 March 2013 here).

Another issue may also take our focus of attention: the applicability of article 17 of the Rome Statute (read it here). According to article 17 of the Rome Statute, the ICC can only step in to investigate if a state is unwilling or unable to investigate and prosecute on its own. So if the Palestine does not have jurisdiction under Oslo II, will it constitute “unable” under article 17? Or say for example, Hamas leaders were indicted and a trial was held. Unfortunately, tension arose as the trial was lead by the Palestinian Authority (PA). Following that, friction within the Palestinian government inevitably staged and, subsequently, for the sake of political stability, the PA and Hamas re-conciliated. Will this constitute “unwillingness” under article 17?

I know these examples might be too exaggerated, but the point is, Palestine should really calculate the applicability of article 17 of the Rome Statute before deciding to join the ICC.

I applauded Palestinians struggle for its rights and freedom. But I’m not really convinced that joining the ICC, without thorough and comprehensive preparation, is a good move for them at this moment.

I quote Fatou Bensouda reponse to this development: “my mandate as prosecutor is nonetheless clear, to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality”.

Now stand back a little and read again Bensouda’s comment. What do you think?

Also, I feel a bit sympathetic, as I know the ICC is struggling a lot. 2014 was a black pill for ICC as it provides two major setbacks: The Prosecutor had to close the Kenya case against President Uhuru Kenyatta for lack of evidence; and at the same time, the Prosecutor has now put investigation towards President Omar Hassan Al Bashir of Sudan into a deep freeze because of lack of any Security Council support.

The ICC was created and envisioned a long time ago for the purpose of impartial justice. But the collapse of Kenya and Darfur case are fueling a debate about the ICC’s effectiveness and relevancy. Some already speculated: “should the ICC continue to exist?”

Situation in Palestine is a high profile yet politically sensitive at the same time. It may open the Prosecutor’s move into a backlash. It might also drain the energy and all of the ICC resources to indict leaders from either Israel and Palestine.

From the bottom of my heart, I wish you strong both Palestinian people and the ICC. I hope every country as well as every international institution can make a potential use of what the international system has to offer.

*Ambassador Mansour delivering docs relating to the accession of 16 international conventions and treaties, including the Rome Statute of the ICC


About FJM

I am an eternal learner. Learn by reading and writing. I have two sites, this one which I will mostly write in Indonesian and which I wrote in English
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