Palestine and the ICC: A long road
Editor’s note: This is part one of a two-part article. Read part two here.
On 2 January, Palestinian Authority President Mahmoud Abbas submitted an instrument of accession to the Rome Statute along with an ad-hoc declaration accepting the jurisdiction of the International Criminal Court (ICC) with respect to events that occurred since 13 June 2014, thus including the July-August Israeli assault on Gaza.
In order to fully understand and appreciate the meaning of
|Two UN follow-up reports found that the Israeli system lacked structural and institutional independence.
this move, which only 5 years ago would have been unimaginable, it is necessary to consider this legal saga from its beginnings.
On 21 January 2009, just after the end of what is now known as the first Gaza war – an Israeli military assault that was dubbed ‘Operation Cast Lead’ – the Palestinian Authority (PA) issued a prior ad-hoc declaration recognising the jurisdiction of the ICC in accordance with Article 12(3) of the Rome Statute.
The provision allows a State that is not party to the Rome Statute to accept the jurisdiction of the Court on an ad hoc basis in a situation where war crimes, crimes against humanity, and/or genocide are alleged to have been committed. Unlike accession to the Rome Statute which only gives the ICC jurisdiction over crimes committed after the date the state joined the treaty, a declaration under Article 12(3) can give the ICC temporal jurisdiction for events dating back to July 2002, when the Rome Statute entered into force and the ICC began its operations.
At that time, the move was quite unexpected. No one thought the ICC would be able to exercise its jurisdiction over the situation in Palestine unless Israel also joined. If it could, furthermore, it was not clear whether the PA was competent to make such a declaration, since this avenue is reserved to states. It was up to the ICC Prosecutor to decide, and all awaited his decision.
A few months later, the UN’s Human Rights Council established one of its first ever fact-finding missions, which was to headed by Judge Richard Goldstone. The mission was mandated to investigate all violations of international humanitarian law and international human rights law committed during Operation Cast Lead.
The eventual ‘Goldstone Report’ was released in September 2009. It presented prima facie evidence of war crimes and crimes against humanity. It was also the first international report to address the issue of domestic investigations of war crimes allegations, finding that Israeli military investigations did not comply with international standards.
Two UN follow-up reports found that the Israeli system lacked the structural and institutional independence required for a proper investigation and that the investigations were neither sufficiently transparent nor prompt. Furthermore, the reports criticized Israel for not investigating those who had designed, planned, ordered, or overseen the alleged crimes.
At the time when the Goldstone Report and the two UN follow-up reports were released, the ICC Prosecutor’s decision was still pending. This is why the effectiveness of Israeli domestic investigations into war crimes allegations, in light of the complementary principle, became so significant: if jurisdiction were established, the ICC would need to decide on admissibility, i.e., whether Israel was ‘unwilling’ or ‘unable’ genuinely to undertake investigations and prosecutions of allegations of international crimes. Only under these circumstances would the ICC Prosecutor open an investigation.
Israel was well aware of these legal developments. Thus, it was no coincidence that the Türkel Commission established in June 2010 by the Israeli government in the aftermath of the Gaza Flotilla incident, was also mandated to examine whether Israel’s investigation mechanisms were consistent with international law. In fact, this mandate was a direct outcome of the Goldstone Report, which has been seen as too easily ‘buried’, after the famous April 2011 op-ed of Judge Goldstone in the Washington Post, in which he retracted one specific finding of the report. The report issued by the Türkel committee eventually presented 18 recommendations for the improvement of the Israeli system investigation.
Only on April 2012, after three years of deliberations, and just prior to the end of his mandate, did the ICC Prosecutor finally release his decision, and announced that he was not in fact competent to decide on the matter of Palestine’s status as a State, deferring instead to the UN.
A few months later in November 2012, Abbas finally obtained what he needed: the UN General Assembly accorded to Palestine non-member observer State status in the United Nations. From that date, Palestine could join international treaties including the Rome Statute.
In April 2014, Palestine ratified 22 treaties including the Geneva Conventions, but not the Rome Statue. That was retained as the ultimate “nuclear option” as part of its on-going diplomatic efforts.
In summer 2014, another Israeli military operation took place in Gaza. This one lasted twice as long as the 2009 war, resulted in more devastation, both in the number of deaths and injuries of children and civilians and in the destruction of homes and civilian infrastructure. According to B’Tselem “40% of Palestinians killed in the operation were minors, women, and people over the age of 60. In addition, thousands of homes were destroyed and hundreds of thousands of people were uprooted from homes that no longer exist”.
During the hostilities, on the 23 July 2014, another UN fact-finding mission into the 2014 Gaza conflict was established, headed by Professor William Schabas. The Commission was mandated “to investigate all violations … particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014”. It is scheduled to release its report in March 2015.
A few days after the end of military operations, the ICC Prosecutor published an op-ed in the Guardian confirming that “Palestine could now join the Rome Statute,” and unofficially made clear that any ad hoc declaration could be made only since November 2012 – the date of the UN General Assembly vote that recognized Palestine as a non-member observer State at the United Nations.
Palestine did both things on the last day of 2014: it submitted its instrument of accession to the Rome Statute and lodged a second ad hoc declaration recognizing the jurisdiction of the ICC since 13 June 2014 (which, aligns with the beginning of the mandate of the Schabas UN Fact Finding mission). This time though, unlike 2009, the preconditions to exercise ICC jurisdiction are met.
This is part one of a two-part article jointly published with Orient XXI. Read part two here.