Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
A Little Legal Restraint on Israel at
Palestine Defies the US-EU and Joins the ICC
Al-Jazeerah, CCUN, January 28, 2015
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
“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
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
“the transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian population into the territory
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
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.
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
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
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
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
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.
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.
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.
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
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.
Palestine joins the ICC
By David Morrison
On 2 January 2015, Palestine’s UN ambassador,
deposited with the UN Secretary General, Ban Ki-moon, documents
necessary for Palestine to become a party to the Rome Statute of the
International Criminal Court (ICC). The Palestinian leadership took
this step despite enormous pressure being put on them not to do so by the US
and the EU (and by Israel).
On 6 January 2015, Ban Ki-moon,
announced that the Rome Statute “will enter into force for the State of
Palestine on April 1, 2015”, making Palestine the 123rd state party to the
Rome Statute. From then on (and perhaps earlier – see below), the ICC
will have jurisdiction in Palestinian territories, that is, in the West
Bank, including East Jerusalem, and Gaza.
Rome Statute defines offences – war crimes, crimes against humanity and
genocide – for which individuals can be prosecuted by the ICC.
Individuals of any nationality who commit one of these offences in
Palestinian territories can be charged, tried and punished by the ICC, as
can Palestinian nationals who commit these offences anywhere in the world.
In order to try an indicted individual, the ICC has to acquire custody
of him/her. Israel is not a party to the Rome Statute and therefore
has no obligation to hand over an indicted individual to the ICC, so it is
unlikely that any indicted Israelis will ever be tried. However, 122
other states in the world, including all 28 EU members, are parties to the
Rome Statute, so indicted individuals (like the President of Sudan, Omar
Hassan al-Bashir, who was indicted by the ICC in 2008) have to be careful
about their travel arrangements.
From what date can
offences be prosecuted?
A key question is: will the ICC be able to prosecute individuals for past
offences or only for those committed after the Rome Statute enters into
force for Palestine on 1 April 2015. Article 11.2 of the Statute says
that for states joining today
“the Court may exercise its
jurisdiction only with respect to crimes committed after the entry into
force of this Statute for that State”
On the face of it, this means
that the ICC can only prosecute individuals for offences committed in
Palestinian territories on or after 1 April 2015 – and therefore, for
example, Israeli military personnel can not be prosecuted for offences
committed during Israel’s military offensive against Gaza in July and August
However, Article 11.2 contains the rider: “unless that
State has made a declaration under article 12, paragraph 3”. A
declaration of this kind is a mechanism whereby a state which is not a party
to the Rome Statute can accept the ICC’s jurisdiction on a limited basis.
The Palestinian authorities have sought to take advantage of this rider by
making such a declaration on 1 January 2015 “declaring Palestine's
acceptance of the jurisdiction of the ICC since 13 June 2014” (see
ICC press release, 5 January 2015).
This is not the first time
that the Palestinian authorities have attempted to grant the ICC
jurisdiction by means of a declaration of this kind. In January 2009,
during Operation Cast Lead, the first of Israel’s three major military
assaults on Gaza, they made a similar
declaration seeking to grant the ICC jurisdiction from 1 July 2002, when
the Rome Statute came into force. It took the ICC Prosecutor over
three year to
decide that the Court could not accept the jurisdiction offered.
The decision hung on whether or not Palestine was a “state” within the
meaning of Article 12.3. In April 2012, the Prosecutor concluded that
he hadn’t the competence to make that decision, which was a matter for the
Since then, however, the situation has changed
dramatically – on 29 November 2012, the UN General Assembly voted by 138
votes to 9 to grant Palestine observer rights at the UN as a "non-member
state". As a result, the current Prosecutor, Mrs Fatou Bensouda, has
decided that Palestine is now a “state” within the meaning of Article 12.3
and the Court can accept its offer of jurisdiction. That being so, she
has “opened a preliminary examination into the situation in Palestine” (see
ICC press release, 16 January 2015).
release went on to explain:
“A preliminary examination is
not an investigation but a process of examining the information available in
order to reach a fully informed determination on whether there is a
reasonable basis to proceed with an investigation …”
and there is no
deadline for reaching such a determination. Rather:
on the facts and circumstances of each situation, the Office will decide
whether to continue to collect information to establish a sufficient factual
and legal basis to render a determination; initiate an investigation,
subject to judicial review as appropriate; or decline to initiate an
An essential first step has been taken, which may
lead to an investigation and eventually to the indictment of individuals –
but that may be years away.
A further point: the
Palestinian declaration accepted ICC jurisdiction from 13 June 2014, the
date that Israel began a massive crackdown in the West Bank after three
Israeli teenagers went missing and were subsequently found murdered.
By backdating the acceptance of ICC jurisdiction to this date, the
Palestinian authorities hope that it will be possible for the ICC to indict
Israeli security personnel for actions on or after that date, including
during Israel’s military assault on Gaza in July and August.
is by no means certain that the Court will accept this backdating. As
we saw above, when a state accedes to the Rome Statute, under Article 11.2
of the Statute the Court cannot try individuals for offences committed
before the date of accession. In other words, no backdating is
permitted when a state grants the Court jurisdiction by accession.
This makes it far from certain that backdating will be permitted when a
state grants the Court jurisdiction by a declaration. If not, the
Court will only be able to prosecute individuals for actions on or after 1
January 2015, when the declaration was made.
actions constitute a crime against humanity/war crime?
Article 7 of the Rome Statute lists the actions that constitute a crime
against humanity. A key feature of such a crime is that it is an act
“committed as part of a widespread or systematic attack directed against any
civilian population”. Such acts include murder extermination
deportation or forcible transfer of population
torture the crime of
Article 8 of the Rome Statute lists the actions that
constitute “a war crime”. They include wilful killing torture or
inhuman treatment extensive destruction and appropriation of property, not
justified by military necessity unlawful deportation or transfer or unlawful
confinement taking of hostages intentionally directing attacks against the
civilian population as such or against individual civilians not taking
direct part in hostilities intentionally directing attacks against civilian
objects, that is, objects which are not military objectives and many, many
Transfer of civilian population into occupied territory One
of the latter, in Article 8.2(b)(viii), is “the transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian population
into the territory it occupies”.
Obviously, this is of particular
relevance in this case because since 1967 Israel has transferred nearly
600,000 of its own citizens into territory it occupies east of the Green
Line in the West Bank, including East Jerusalem.
Of course, Israel
maintains that it is not “occupying” this territory. In this, it is
flying in the face of the opinion of the UN Security Council and other UN
organisations, including the International Court of Justice (which is, in
the words of the UN Charter, “the principal judicial organ of the United
Nations”). In its July 2004 Advisory Opinion
consequences of the construction of a wall in the Occupied Palestinian
Territory it left no doubt that Israel was the Occupying Power in this
territory under international law:
“The territories situated between
the Green Line … and the former eastern boundary of Palestine under the
Mandate were occupied by Israel in 1967 during the armed conflict between
Israel and Jordan. Under customary international law, these were therefore
occupied territories in which Israel had the status of occupying Power.
Subsequent events in these territories … have done nothing to alter this
situation. All these territories (including East Jerusalem) remain occupied
territories and Israel has continued to have the status of occupying Power.”
Since successive Israeli governments have authorised
the transfer of large numbers of Israeli citizens into territory east of the
Green Line, there is very little doubt that war crimes, as defined by the
Rome Statute, have been committed – and will continue to be committed for
the foreseeable future, since it is inconceivable that any future Israeli
government will cease this colonisation project voluntarily or that
sufficient international pressure will be applied to make it cease.
In the light of this, there is a prima facie case that Israelis responsible
for this colonisation project, including the present Prime Minister, are
guilty of war crimes and it may be that Americans and others who provide
funds for the project could be prosecuted for aiding and abetting their war
How does an ICC investigation/prosecution come about?
Under Article 14 of the Rome Statute, 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” with a request that the
Prosecutor begin an investigation.
(A “situation” of this kind may
also be referred to the Prosecutor by the Security Council passing a
resolution under Chapter VII of the UN Charter, as was done in respect of
Darfur in Sudan in 2005 and of Libya in 2011 – and could have been done in
respect of Palestine at any time since the Rome Statute came into force on 1
No doubt, Palestine is preparing to refer to the
Prosecutor Israel’s colonisation project and actions by Israeli military
personnel in Gaza last summer, along with vast amounts of supporting
documentation. But it is up to Prosecutor and the Court to decide
whether to decide whether to initiate an investigation.
The Mavi Marmara referral
It is worth noting here that in May 2013, the Union of the Comoros, which
is a state party to the Rome Statute, referred the Israeli military assault
on the Mavi Marmara ship on 31 May 2010 to the Prosecutor. This
assault 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. The Mavi Marmara was registered in the Comoros Islands and
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.
2014, without opening an investigation the Prosecutor
concluded that “there is a reasonable basis to believe that war crimes
under the jurisdiction of the International Criminal Court … were committed
on one of the vessels, the Mavi Marmara, when Israeli Defense Forces
intercepted the ‘Gaza Freedom Flotilla’ on 31 May 2010”. Nevertheless,
she decided that “the potential case(s) likely arising from an investigation
into this incident would not be of ‘sufficient gravity’ to justify further
action by the ICC”.
It is true that Article 17.1(d) of the Rome
Statute requires a case to be “of sufficient gravity to justify further
action by the Court”, but one is left wondering if the Prosecutor would have
come to a different conclusion if the object of the complaint had been
nationals of a powerless African state. It was the first time that a
referral by a state party to the Prosecutor was
rejected without an investigation being initiated.
Can an ICC investigation/prosecution be aborted/delayed?
Could the ICC Prosecutor decide that the cases likely to arise from an
investigation into Israel’s colonisation project would not be of “sufficient
gravity” to justify the ICC pursuing them? It seems unlikely, since
the project is of enormous significance and isn’t going to cease any time
soon – and there doesn’t seem to be any measures that Israel can take to
block an investigation.
However, it may be possible for Israel to
thwart, or at least delay, ICC investigations into actions by Israeli
military personnel. This arises from Article 17 of the Rome Statute,
which expresses the fundamental principle of the ICC that it may only
exercise jurisdiction where national legal systems fail to do so. Thus,
for example, Article 17.1(a) states that a case is “inadmissible” as far as
the ICC is concerned if it “is being investigated or prosecuted by a State
which has jurisdiction over it”. This means that it may be possible
for Israel to thwart, or at least delay, ICC investigations into actions by
Israeli military personnel by starting its own investigations – and not
being in a hurry to bring them to a conclusion.
procedure would not be possible with regard to ICC cases related to Israel’s
colonisation project, since it would be impossible for Israel to pretend
that it was investigating individuals who are putting state policy into
There is another way in which an ICC investigation or
prosecution can be deferred and that is by the Security Council passing a
resolution to that effect. This is provided for under Article 16 of
the Rome Statute, which states:
“No investigation or prosecution may
be commenced or proceeded with under this Statute for a period of 12 months
after the Security Council, in a resolution adopted under Chapter VII of the
Charter of the United Nations, has requested the Court to that effect; that
request may be renewed by the Council under the same conditions.”
So, indefinite deferral is theoretically possible, but it is unlikely that
such a resolution would pass even once, since it needs at least nine votes
in favour and no votes against from any of the five permanent members of the
It was no surprise that Israel condemned Palestine’s decision to accept
the jurisdiction of the ICC and it is imposing the usual punishment on
Palestinians for doing so – it is
refusing to hand over $127 million of tax revenue to the Palestinian
Authority, revenue that it has collected on behalf of Palestine under the
Paris Economic Protocols it signed in 1994 after the Oslo Agreement.
Chief Palestinian negotiator, Saeb Erekat,
delivered a perfect response to Israel’s complaints, saying that “those
who are concerned about courts should stop committing crimes”.
was no surprise either that the US criticised the Palestine’s decision, a
State Department spokesman
saying that the Palestinian action was “counterproductive”, that it
“does nothing to further the aspirations of the Palestinian people for a
sovereign and independent state” and “badly damages the atmosphere with the
very people with whom they ultimately need to make peace”.
people may think that the non-violent Palestinian act of according
jurisdiction to an international court is a good deal less damaging to the
atmosphere between Israel and Palestine than Israel’s military assault on
Gaza last summer during which 2,131 Palestinians including 501 children were
OCHA report of 4 September 2014) – and the US didn’t utter a word of
criticism about that.
At the time of writing, the US has not
declared any intention to punish Palestine for its action, by, for example,
reducing US aid, which currently stands at $440 million a year.
However, at a briefing on 5 January 2015 a State Department spokeswoman
said “obviously there could be implications on assistance”.
Surprisingly, the US has criticised Israel for withholding Palestinian
funds: when asked at the same briefing if the US opposed this, the
spokeswoman replied that “we’re opposed to any actions that raise tensions,
and obviously, this is one that raises tensions”.
The EU has
refrained from criticising Palestine for joining the ICC in the face of EU
statement from the EU foreign policy chief, Federica Mogherini, on 6
January 2015 merely said enigmatically:
“Recent steps taken by
Palestinians and Israelis could aggravate the already tense situation on the
ground and bring them further away from a negotiated solution.”
“recent steps” were Palestine’s ICC application and Israel’s withholding of
Palestinian revenues in response. The statement goes on to criticise
the latter, noting that Israel’s actions “runs counter to Israel's
obligations under the Paris Protocol”.
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