23 June 2015

Africa: Out of Africa? the Palestinian Referral to the ICC

analysis

On 16 January this year, International Criminal Court (ICC) Prosecutor Fatou Bensouda opened a preliminary examination into the situation in Palestine.

Palestine, now a state party to the Rome Statute of the ICC, also made a declaration under article 12(3) of that statute, accepting jurisdiction of the ICC over alleged crimes committed in the occupied Palestinian territories, including East Jerusalem, since 13 June 2014.

All this is momentous history, but there are some preceding facts that should not be forgotten. This is not the first time the Palestinian situation, and Israel's alleged crimes, have come into the ICC's orbit.

In response to crimes allegedly committed during Operation Cast Lead (Israel's invasion of Gaza in December 2008), the Palestinian Authority (PA) lodged a declaration with the ICC on 22 January 2009 to encourage an ICC investigation.

At that time, however, the PA only had 'observer entity' status at the United Nations (UN) and was not, in UN parlance, a 'non-member state'. On this basis the ICC's previous prosecutor, Luis Moreno Ocampo, concluded that Palestine could not join the Rome Statute or ask the court to investigate a situation. The law - at least as interpreted by Ocampo - had rendered the PA stateless and status-less before the ICC.

Palestine has forced the world, and its organisations, to recognise its claim to statehood

Things began to change when, on 29 November 2012, the UN General Assembly adopted resolution 67/19 granting Palestine the status of a 'non-member observer state' at the UN, with 138 states voting in favour. In January 2015, Palestine acceded to the Rome Statute and was officially welcomed as a state party in April - three months after the date of accession, as required under the statute.

In dealing with Palestine's ICC move, five legal implications are worth considering. The first is that Palestine is now a 'state', certainly for purposes of the ICC. This view is shared amongst most legal scholars and has been confirmed by treaty practice since resolution 67/19.

This recognition is supported by the UN Secretary-General's acceptance of Palestine's accession to the Rome Statute, Palestine's accession to a host of other treaties since the beginning of this year and Palestine's declaration accepting the ICC's jurisdiction, which was accepted by the registrar of the ICC and forwarded to the prosecutor.

Through pushing for recognition as a state - at least for purposes of the ICC - the Palestinians have moved a decisive step closer to having the ICC investigate crimes committed in the occupied Palestinian territories. As a political move, Palestine has forced the world, and its organisations, to recognise its claim to statehood.

The third element is geography: in which territory may the ICC investigate crimes?

The second factor is timing. How far back has Palestine afforded the ICC potential power to investigate crimes committed in the occupied Palestinian territories? The answer lies in Palestine's decision to first make a declaration accepting the court's jurisdiction before it acceded to the statute. When Palestine became a state party to the Rome Statute, it afforded the ICC competence to investigate crimes committed after the entry into force of the treaty for that state - which for Palestine is 1 April 2015. Palestine needs a means to look into the past.

The Rome Statute envisages that a state may, in addition to becoming a party, lodge an ad hoc declaration, which Palestine did on 1 January 2015.

The declaration recognises the jurisdiction of the Court for Palestine for crimes allegedly committed in the occupied Palestinian territories from 13 June 2014 - the date that the UN Human Rights Council adopted a resolution to establish a fact-finding mission into the origins of last year's hostilities in Gaza. Palestine's declaration grants the ICC jurisdiction to investigate crimes committed since 13 June 2014.

The third element is geography: in which territory may the ICC investigate crimes? Of course, the exact geographical scope of Palestine is highly contested. What is largely accepted is that Israel is the occupying power in the occupied Palestinian territories.

This was confirmed on 17 December 2014 at the conference of the High Contracting Parties to the Fourth Geneva Convention - where Israel was affirmed as the occupying power in the West Bank and Gaza. Assuming that Palestine's territory consists of land occupied by Israel since June 1967, the Rome Statute will be applicable in East Jerusalem, the West Bank and the Gaza Strip. The actions of the occupiers will then come under scrutiny in the territory they occupy.

Its focus, to date, on African situations has left the ICC with a severe legitimacy problem

Then the fourth issue - what crimes? It seems clear that Bensouda will be able to initiate a preliminary investigation into crimes committed during hostilities in Gaza after June last year, including the 50-day conflict in July and August under Operation Protective Edge.

Here she has made it clear that she will be even-handed in considering crimes (depending on the evidence and subject to the gravity) committed by Israel in Gaza and by Hamas and Palestinian Groups in firing rockets into Israel. The ICC prosecutor will also be faced with allegations that Israel's decades-old settlement policy constitutes a war crime, among other things, by an occupying power given that it has transferred its population into occupied territory.

Lastly, there is the question of complementarity. The ICC is a court of last resort - cases before it are only admissible if a state that would otherwise have jurisdiction in respect of the alleged crimes is unwilling or unable to investigate.

The principle of complementarity means that the ICC Prosecutor will have to consider whether there are domestic investigations and prosecutions of alleged offenders, and if not, whether this is because of unwillingness or inability (or both) of the state or states that would otherwise have the duty to ensure that justice is done.

Taking these five legal features of the Palestinian referral as examples, one begins to see the possibilities and challenges of accountability for ICC crimes in Palestine. For Africans, of course, the important point is that the court has been asked to open a preliminary examination outside of Africa.

All who are concerned for the court are well aware that its exclusive focus to date on African situations has left the ICC with a severe legitimacy problem on the continent, and confirms the skewed and unequal nature of international criminal justice. The Palestinian referral is then not only a great moment in the history of the Palestinian people: it comes at a vital juncture in the court's history.

Max Du Plessis, Professor of Law, University of KwaZulu-Natal and senior research associate, Transnational Threats and International Crime Division, ISS Pretoria

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