A little legal restraint on Israel at last?
Palestine defies the US/EU and joins the ICC
For many years, Britain
has regarded Israel’s
colonisation of Palestinian territory in the West Bank, including East Jerusalem, as illegal under international law and an
obstacle to bringing about a “two-state solution”, which is the stated
objective of British policy. Here is a
summary of that policy from the Foreign and Commonwealth Office website:
“We want to see a stable, prosperous
Middle East with a sovereign and viable Palestinian
State living in peace alongside a
secure Israel
at the heart of it.
“We are concerned by developments
that threaten the viability of the two-state solution. Changing circumstances,
in particular the construction of settlements on occupied land in the West Bank
and East Jerusalem, mean that the two-state
solution is slipping away.
“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. We consistently urge the Israeli
authorities, including at the highest levels, to cease all settlement building,
revoke previous announcements and to remove illegal outposts, as required under
international law.”
But over many years, Israel
has simply ignored the repeated urging of Britain (and of the EU and various
UN organisations) that it “cease all settlement building”.
Israel has not even been prepared to cease settlement
building temporarily during negotiations with Palestinians, even though, under
the Roadmap
for negotiations that it accepted in April 2003, it was supposed to “freeze all
settlement activity, including natural growth” before the start of negotiations.
It has been clear for many years that Israel is not
going to “cease all settlement building” without serious and sustained pressure
being applied to it – and without a halt to this colonisation project the
stated objective of British policy, a two-state solution, is a dead letter.
UN enables Palestine
to join the ICC
In November 2012, the UN General Assembly voted
by an overwhelming majority – 138 in favour to 9 against – to grant Palestine observer
rights at the UN as a "non-member state", despite fierce
opposition from Israel and
the US.
From then on, Palestine was
in a position to become a party to the Rome Statute of the International Criminal
Court (ICC) and accept the Court’s jurisdiction in Palestinian territories,
that is, in the West Bank, including East Jerusalem, and Gaza.
In that event there would have been a peaceful legal means of applying
pressure on Israel
to cease its colonisation of Palestinian territory.
This is because 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”
is defined
to be a war crime. The Rome Statute defines the offences – war crimes,
crimes against humanity and genocide – for which individuals can be prosecuted
by the ICC if it has jurisdiction.
Since Israel
has transferred nearly 600,000 Israeli civilians into territory it occupies, there
is little doubt that war crimes have been committed by agents of the Israeli
state over many years, and are still being committed. There is a prima facie case therefore that the
Israelis responsible,
including the present Prime Minister, are guilty of war crimes and it may be
that Americans and others who contribute funds for settlement building are
guilty of aiding and abetting war crimes.
Britain (and the
EU) oppose Palestine
joining ICC
The Palestinian leadership wanted to join the ICC as soon as possible
after November 2012 in the hope of having Israelis prosecuted for settlement
building and other illegal activity in Palestinian territories.
But they were under great pressure not to do so from Israel and its American protector, as you might
expect, but also from Britain
(and the EU). Given their utter failure
over many years to persuade Israel
to “cease all
settlement building”, one might have
thought that Britain (and
the EU) would have welcomed a little legal pressure on Israel to do so.
Britain opposed Palestine taking this step, despite the fact that (a) it
is a party to the ICC (unlike Israel and
the US) and (b) making the ICC universal, that is, extending the jurisdiction
of the ICC to every state on earth, is a stated objective of British foreign policy. As Foreign Minister William Hague said in a speech
in The Hague on
9 July 2012:
“Our challenge … is to strive to
universalise the Rome Statute … and to make irreversible the progress that has
been made in ending the culture of impunity for the worst crimes.”
Striving to universalise the Rome Statute and end the culture of
impunity was not in evidence a few months later on 28 November 2012 when the UN
General Assembly was about to vote on Palestinian statehood. Then, William Hague offered
UK support for the UN General Assembly resolution granting statehood to Palestine,
providing Palestinian leaders promised (amongst other things) that Palestine
would NOT become a party to the Rome Statute if it acquired statehood.
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 seek
to end the culture of impunity.
The justification given by William Hague for this extraordinary
exception was that if the Palestinians were to pursue “ICC jurisdiction over
the occupied territories at this stage, it could make a return to negotiations
impossible”, as if twenty years of sporadic negotiations had curtailed Israeli
colonisation one whit or brought the creation of a Palestinian state any
closer.
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.”
What
sense does it make to decry illegal actions by Israel,
while pressurising Palestine
into not giving jurisdiction to a court that might convict those responsible
and by so doing restrain future illegality?
In
the two years since Palestine achieved statehood,
Britain continued to oppose Palestine accepting ICC
jurisdiction.
And
so did the EU, despite also being a fervent supporter of ICC universality. This stance was formalised in a common
foreign policy position, adopted by the EU Council on 21 March 2011, the
purpose of which was stated to be “to advance universal support for the Rome
Statute”. In it, the EU and its member
states agreed to “make every effort to further this process by raising the
issue of the widest possible ratification, acceptance, approval or accession to
the Rome Statute and the implementation of the Rome Statute in negotiations”. It’s not obvious that the EU “made every
effort to further this process” in its relations with Palestine in recent years.
Palestine defies US/EU
On 2 January 2015, Palestine defied the US/EU and its UN ambassador, Riyad Mansour, deposited
with the UN Secretary General Ban Ki-moon the documents required
to join the ICC. On 6 January, Ban
Ki-moon announced
that it will take effect on 1 April.
The
Palestinian leadership is to be congratulated for having the courage to take
this step in defiance of the US/EU, on whom they rely for financial support,
and in the sure and certain knowledge that Israel was sure to punish them for
doing so. For the first time since 1967,
when Israel’s military occupation
began, there is a possibility of some legal restraint on Israel’s
actions in the territories it occupies.
It is
no thanks to Britain
or the EU that this has come about. As entities that purport to believe in the rule of
law and ICC universality, Britain
(and the EU) should have encouraged Palestine
to join the ICC from the moment that the option was available in November
2012. But they did the opposite.
Thanks to Britain
and the EU, two years have wasted, two years during which Israel has continued its colonisation of Palestinian
territory – and continued to ignore pleas from Britain and the EU (and others) to
cease – and in which the possibility of a viable Palestinian state being
established has been further reduced.
A final point: if Palestine
had joined the ICC two years ago, as the Palestinian leadership wished, the ICC would have had jurisdiction over Gaza since then. That might very well have been sufficient to
deter Israel from mounting a military assault on Gaza last summer, lest its
military personnel be indicted by the ICC, and might have saved well over two
thousand lives.
David Morrison
20 January 2015