Britain says every state should join the ICC

apart from Palestine

It is British policy to extend the jurisdiction of the International Criminal Court (ICC) to every corner of the earth, except the Palestinian territories occupied by Israel since 1967, that is, the West Bank, including East Jerusalem, and Gaza.

And it is not as if the Occupying Power isn’t committing acts that Britain regards as illegal in these territories, in particular, settlement building. British policy on this issue as stated on the FCO website is as follows:

“Our position on Israeli settlements in the Occupied Palestinian Territories is clear: they are illegal under international law, an obstacle to peace and make a two-state solution harder to achieve.” [1]

Settlement building is a war crime

Though the British Government never says so explicitly, settlement building is a war crime under the Rome Statute which defines the offences that can be prosecuted by the ICC. It is a war crime because it involves the Occupying Power transferring some of its own civilian population to the territory it occupies. And under Article 8.2(b)(viii) of the Rome Statute

“the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” [2]

is a war crime.

Since there is no doubt that Israel has transferred well over 500,000 Israeli civilians into territory it occupies, and that the process is still going on, there is a prima facie case that Israelis responsible for the settlement building programme, including the present Prime Minister Benyamin Netanyahu, are guilty of war crimes. It may be that Americans and others who fund settlement building are guilty of aiding and abetting war crimes.

Yet the British Government is opposed to Palestine becoming a party to the Rome Statute so that it is possible that Israelis responsible for settlement building will be brought to account for what the British Government itself regards as illegal actions.

Challenging impunity around the world

In July last year, the British Foreign Office launched an ICC strategy paper [3], which expressed Britain’s enthusiastic support for international systems of justice in general and the ICC in particular.

A key element of British policy set out in the paper is the extension of the jurisdiction of the ICC by encouraging states that are not party to the Rome Statute of the ICC to join, with the objective of the ICC eventually acquiring universal jurisdiction. The paper explains that the British Government intends to:

“Work with other States Parties to encourage more states to ratify and accede to the Rome Statute and to fully implement its provisions in domestic law. …

“Urge States not party to the Rome Statute to consider ratifying or acceding to the Treaty …”

The paper explains:

“Widening the reach of the Court beyond the current 122 States Parties will increase accountability and help challenge impunity.”

Inappropriate to challenge Israeli impunity

This enthusiasm for extending ICC jurisdiction was sadly missing when Foreign Minister William Hague spoke in the House of Commons a few months later on 28 November 2012. Then, he offered UK support for a UN General Assembly resolution granting Palestine statehood, providing Palestinian leaders promised, amongst other things, that if Palestine acquired statehood it would not become a party to the Rome Statute.

Here’s what he told the House of Commons:

“Our country is a strong supporter, across all parties, of international justice and the International Criminal Court. We would ultimately like to see a Palestinian state represented throughout all the organs of the United Nations. However, we judge that if the Palestinians were to build on this resolution by pursuing ICC jurisdiction over the occupied territories at this stage, it could make a return to negotiations impossible.” [4]

Yes, believe it or believe it not, it is British policy to extend the jurisdiction of the ICC to every corner of the earth, except the Palestinian territories occupied by Israel since 1967. There it is apparently inappropriate for Britain to challenge impunity.

Two days later, when in retaliation for the UN granting statehood to Palestine, Israel announced plans for yet more building in settlements, William Hague reacted as follows:

“I am extremely concerned by reports that the Israeli Cabinet plans to approve the building of 3000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law and undermine trust between the parties.” [5]

Dare I suggest that, if settlements are illegal under international law, then, if at all possible, those responsible should be tried in an international court and, if found guilty, punished appropriately? Dare I suggest that, to this end, Palestine should be encouraged to accept the jurisdiction of the ICC?

Palestinian Authority tried to grant the ICC jurisdiction

In January 2009, the Palestinian Authority tried to grant the ICC jurisdiction over the occupied territories so that it would be possible for Israelis to be prosecuted by it for actions against Gaza during Operation Cast Lead.

The ICC can prosecute individuals for genocide, war crimes or crimes against humanity, as defined in the Rome Statute of the Court [2]. It acquires jurisdiction in respect of these crimes by states granting it jurisdiction under Article 12 of the Statute. A state can grant jurisdiction to the Court

(a) by becoming a Party to the Statute (Article 12(1)) or

(b) by making an ad hoc declaration accepting the Court’s jurisdiction (Article 12(3)).

The ICC can try individuals for genocide, war crimes or crimes against humanity, committed in the territories of states (or by its nationals anywhere) that have granted the Court jurisdiction.

On 21 January 2009, the Palestinian Authority made an ad hoc declaration to the Court under Article 12(3) in the following terms:

“In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging the authors and accomplices of acts committed in the territory of Palestine since 1 July 2002” [6].

It took the ICC Prosecutor over three years (until April 2012) to decide that the Court couldn’t accept the jurisdiction offered. This decision hung on whether or not Palestine was a “state” within the meaning of Article 12(3), which says that a “State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question”.

Strangely, the Prosecutor concluded that it wasn’t up to him to decide whether or not Palestine was a “state”, within the meaning of Article 12(3), saying that “competence for determining the term “state” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly” [7].

However, now that the UN General Assembly passed resolution A/RES/67/19 [8] accepting Palestine as a state, there is little doubt that Palestine can simply become a Party to the Statute under Article 12(1). Given that Palestine has been accepted as a state by the UN, it is almost certain that the answer would be YES.

During a public discussion held at the Academie Diplomatique Internationale in Paris on 20 March 2013, Fatou Bensouda, the Prosecutor of the International Criminal Court, said that it was clear that ICC membership for the State of Palestine was Palestine's for the asking (see John Whitbeck, Palestine and the ICC, Al Jazeera, 16 April 2013 [9]).

Whitbeck also reported Fatou Bensouda’s view on the issue of retroactivity, that is, whether individuals could be prosecuted for past crimes committed before Palestine becomes a party to the Rome Statute. She said that she did not think that retroactivity could extend back to the birth of the court in 2002 and if any retroactivity was permitted, it would not be earlier than 29 November 2012, when the UN General Assembly recognised Palestine as a state.

Palestine to join other UN bodies?

A year has passed since Palestine was granted statehood by the UN General Assembly. It was generally expected that, having achieved that, the Palestinian Authority would press ahead to join other bodies associated with the UN, of which there are about 20, including the ICC.

There is little doubt that, had it done so, it would have been admitted to all of them. Remember that in October 2011, a year before it achieved statehood and in the teeth of fierce opposition from the US and Israel, it was admitted to full membership of UNESCO by 107 votes to 14 with 52 abstentions.

But, it hasn’t done so, because there has been fierce pressure on it not to do so, especially from the US. And, it has now promised the US that it will not apply for membership of any of these bodies until April 2014 during the 9 month period of “negotiations” with Israel, brokered by the US Secretary of State, John Kerry.

It is absolutely outrageous that the US, with the support of Britain and others, has pressurised Palestinians into forgoing a possible legal means of redress against the illegal actions by the power that has held them under military occupation for almost 50 years.

Comoros asks ICC to prosecute Israelis re Mavi Marmara

On a brighter note, there is a possibility that Israelis may be arraigned before the ICC for the Israeli military assault on the Mavi Marmara on 31 May 2010. This took place in international waters, when it was part of a humanitarian aid convoy to Gaza, and resulted in the deaths of 9 civilian passengers.

This is possible because the Mavi Marmara was registered in the Comoros Islands and the Union of the Comoros is a state party to the Rome Statute. Under Article 12(2)(a) of the Rome Statute, the ICC has jurisdiction in respect of crimes committed, not only in the territory of a state party, but also on ships or aircraft registered in a state party. On 14 May 2013, the Union of the Comoros requested that the ICC mount an investigation into the Mavi Marmara assault.

This request has been made under Article 14 of the Rome Statute which states:

“A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.” [2]

On 14 May 2013, lawyers representing the Union of the Comoros presented a document to the ICC prosecutor, under Article 14, requesting her “to initiate an investigation into the crimes committed within the Court’s jurisdiction, arising from [the Mavi Marmara] raid’’ [10]. The document sought to make a case that Israeli military personnel committed war crimes (for example, ‘wilful killing’ under Article 8(2)(a)(i) of the Rome Statute) and crimes against humanity under Article 7.

The prosecutor has to conduct a preliminary examination in order to establish whether the ICC’s criteria for opening an investigation are met. That examination is ongoing at the time of writing.

David Morrison

18 December 2013

References:

[1] www.gov.uk/government/policies/working-for-peace-and-long-term-stability-in-the-middle-east-and-north-africa/supporting-pages/making-progress-on-the-middle-east-peace-process

[2] www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

[3] www.gov.uk/government/uploads/system/uploads/attachment_data/file/223702/ICC_Strategy_Final.pdf

[4] www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121128/debtext/121128-0001.htm

[5] www.gov.uk/government/news/foreign-secretary-extremely-concerned-at-proposed-new-housing-settlements-in-the-west-bank-and-east-jerusalem

[6] www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf

[7] www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf

[8] unispal.un.org/unispal.nsf/47d4e277b48d9d3685256ddc00612265/181c72112f4d0e0685257ac500515c6c

[9] www.aljazeera.com/indepth/opinion/2013/04/201341561759725150.html

[10] www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/

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