The Situation in Palestine

[Michael Kearney is an LSE Fellow in the Law Department of the London School of Economics]

Michael Kearney guest blogs with us to share his knowledge of the Palestinian situation as an external consultant for the Palestinian human rights NGO Al-Haq

“I heard from the Americans,” Abbas reports. “They said, ‘If you will have your state, you will go to the ICC. We don’t want you to go the ICC.'”

In a striking decision, issued shortly before he is due to step down in June 2012, Prosecutor Moreno-Ocampo of the International Criminal Court  has contrived to reject the existence of the state of Palestine. Writing in 2009 on behalf of Al-Haq, and advocating that the Prosecutor accept the Palestinian declaration, the point was made that while the existence of the state of Palestine was indeed moot for the purpose of international law and international relations generally speaking, there was adequate factual and legal justification for the ICC to accept Palestine’s article 12.3 declaration. It was suggested that ‘a determination by the Court that Palestine is a state that can engage with the Court would be valid and in line with the Court and the Statute’s statutory requirements.’

During the intervening years, Palestinian independence has increasingly been smothered, while Palestinian statehood has been increasingly consolidated. In the past month a collection of essays was published by Asser Press under the title Is There a Court for Gaza? A Test Bench for International Justice. In the foreword William Schabas asserts: ‘This volume asks: ‘Is There a Court for Gaza?’ The answer is a resounding yes. Indeed, there are at least two courts capable of addressing the armed conflict in Gaza that took place in December 2008 and January 2009: the International Court of Justice and the International Criminal Court. But neither of them has jurisdiction prima facie. The challenge, then, is to resolve the difficulties in establishing jurisdiction.’

That challenge took an unexpected twist yesterday with the publication by the ICC’s Prosecutor of a brief note which softly yet tortuously rejected the existence of the state of Palestine. The denial was cast as a sort of possibility, merely stating that ‘The Office could in the future consider allegations of crimes committed in Palestine’.

Perhaps the first point to recall is that the concluding paragraph in the note reminds us that there is indeed no procedure to block future Palestinian efforts at attempting to submit either another article 12.3 declaration or to work towards becoming a full state party to the Rome Statute. Indeed this should be an endeavor immediately acted upon by the Palestinian representatives. And as Kevin Jon Heller has pointed out there may still be a possibility for the Pre-Trial Chamber to review the Prosecutor’s decision.

Before returning to comment on the substance and nature of the Prosecutor’s note, it is maybe useful, for those who may not have followed the process from the January 2009 submission of the declaration to the Prosecutor’s decision, to reflect on the nature of that process.

After the Article 12.3 Declaration

At meetings with the ngo Coalition for the ICC in autumn 2009 the Prosecutor suggested that if Palestine could answer two questions in the positive, then he should be able to satisfactorily accept Palestine as sufficiently a state such as to accept the declaration. These questions related to the ability of Palestine to enter into international agreements, and the ability of Palestine to exercise criminal jurisdiction over Israeli citizens. Not your textbook Montevideo criteria for sure, but since these were what had been suggested Al-Haq and others proceeded to provide reasonably strong answers in response. To the best of my knowledge there was no significant critique of the affirmative response. Nor have such criteria surfaced again as determinative factors.

Around the same time the Report of the UN Fact-Finding Mission of the Gaza Conflict was released to global attention. One of the Report’s central conclusions was that what occurred in Palestine just over three weeks at the end of 2008 and beginning of 2009 ‘was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.” (para 1690)

The Mission recommended that the Human Rights Council formally submit the report to the ICC’s Prosecutor, and that without any good faith investigations the Security Council should refer the situation in ‘Gaza’ to the Prosecutor. Addressing the Prosecutor directly, the Report noted Palestine’s article 12.3 declaration, recommending ‘that accountability for victims and the interests of peace and justice in the region require that the legal determination should be made by the Prosecutor as expeditiously as possible.’ (paras 1765-7)

Despite politricks by the Palestinian Authority, who had sought to have the Report removed from the Council’s agenda at the behest of the US and Israel, the Report was endorsed by the Council and General Assembly. To date none of its recommendations have been implemented.

In September 2010 the inaugural issue of an online journal published by UCLA in association with the Office of the Prosecutor provided an opportunity for various legal commentators to discuss the ‘Gaza Jurisdiction Question’. This was in some ways a follow up to the various analyses submitted to the Prosecutor over the previous year, many of which, including by scholars such as Alain Pellet, John Quigley, and Malcolm Shaw had been published on his website.

In May 2011 Palestinian President Mahmoud Abbas penned an op-ed in the New York Times that was to set the tone for the autumn’s diplomatic march on the UN.  Abbas spoke of the strategy Palestine was to pursue: ‘Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.’ No mention of the International Criminal Court.

When Abbas arrived in New York in September 2011 he gave a proper oration to the General Assembly. The general theme being that the time had come for the state of Palestine to be recognised by the Security Council and admitted as a UN member state. Perhaps Abbas could have ridden the wave and put the recognition of the state of Palestine to the General Assembly and in all likelihood won a large majority vote and ensured Palestine’s status as a ‘non-member state’. Granted, Palestine would have been opposed by the usual supporters of Israeli occupation such as Australia, Canada, Israel, Marshall Islands, Federated States of Micronesia, Nauru, Palau, and the US. Nonetheless, such a declaration by the General Assembly would have been significant and his choice to go before the Security Council – which would stonewall any application – demonstrates either a profound naivety or a slavish devotion to faith in the US as the troubled but ultimately honourable broker. As things stand it is clear that Abbas was aiming for full UN membership as a political maneuver without any strategic interest in the ICC process.

Before turning to the Prosecutor’s rejection brief of 3 April 2012, it is necessary to address several developments since the Palestinian declaration was first submitted which would appear to have signally altered the ‘moot’ nature of the existence of the state of Palestine. The curt denial of Palestinian statehood has to be placed in the context of the significant momentum that has gathered around affirmation of the existence and recognition of the state of Palestine.

In the first instance there has been a successful Palestinian diplomatic campaign that has seen a significant number of bilateral recognition agreements with states from Iceland to Brazil. Second, in September 2011 Abbas handed the Secretary-General a formal application for Palestine’s membership of the UN. Third, the status of Palestine as an actually existing state was affirmed conclusively on 31 October 2011 when a majority of states members of UNESCO voted to approve the state of Palestine’s membership to that UN agency. The vote was carried 107 votes in favouring admission, 14 votes against, and 52 abstentions, with UNESCO’s Director-General, noting that ‘The admission of a new Member State is a mark of respect and confidence.’

William Schabas responded to the UNESCO vote by noting that Palestine should now accede to the Rome Statute, asking ‘how could the Secretary-General refuse the accession by ‘a state’ that has already been recognized as ‘a state’ pursuant to the Constitution of UNESCO?’

Reflecting on Rejection

Finally, to the Prosecutor’s brief. At paragraph 6 the Prosecutor makes the assessment ‘that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1)’ reasoning that the same practice must be followed with respect to article 12.3.

What follows in paragraph 7 is a somewhat astounding piece of text. This paragraph can be considered by reference to three points.

In the first instance it notes that ‘The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies.’ I’m sure the Office was informed of a myriad of facts, claims, details, and interpretations with respect to the issue at hand, but why choose to note these particular elements? They are presented as immaterial gap-filler, as meaningless tit bits, devoid of context and unworthy of comment. Was the Office not ‘informed’ about the state of Palestine’s UNESCO membership, and does it not consider that an issue worthy of addressing? Is recognition by 130 states of any relevance or not? There is no analysis.

The second point is the statement that ‘the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State”.’ Fair enough, but for the fact that ‘observer’ is an umbrella term that covers both non-member states, specifically the Holy See, and entities, specifically Palestine (excluding for our purposes international organisations). Thus the correct statement that the Prosecutor could have included at this point should have been along the lines that ‘the current status granted to Palestine by the General Assembly is that of ‘entity’, not as a ‘non-member State’.  Is this a pedantic and pointless criticism? Does what the Prosecutor says even matter anyway? I’m not too sure at this stage, but I do know that it is a statement that I would require a student to clarify, and would have pointed them in the direction of the UN’s website which is quite clear on the matter. As noted above, Abbas could have met this requirement had he put the request to the General Assembly, and the Prosecutor must have been conscious of this political reality.

The final point in paragraph 7 concerns the Security Council and Palestine’s membership application. Having already informed us that it is for the relevant bodies at the UN to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute, the Office notes its understanding that ‘on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4(2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard.’ Surely this is quite a crucial matter since if the Prosecutor has assessed that it is not for him to determine whether Palestine qualifies as a state, but rather a task within the competence of a body such as the Security Council, then how can he justify making the legal determination that Palestine does not qualify as a state, even while acknowledging that the very question remains under consideration by the Council and thus the UN itself?

This riptide of assertions beggars belief. And to consolidate the incongruity of the overall document is the statement that while the process underway at the Security Council ‘has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12.’ The only interpretation that this claim allows for is along the lines that ‘since the Security Council has not yet decided on the Palestinian bid for membership of the UN, then the Office of the Prosecutor must reject Palestine’s article 12.3 declaration, not that any of this is connected anyway.’

To conclude then, this decision from the Prosecutor is a shoddy and wholly unnecessary declaration. Why not continue to sit on the Palestinian declaration and leave it in the intray for the successor Prosecutor to consider in light of developments underway at the UN? After more than three years considering these ‘complex legal issues’ such a strange statement inevitably raises more questions than it can answer. Moreno-Ocampo is well aware that there is a process underway that will most likely end up with Palestine getting non-member state status at the UN within the short-term. Indeed, why not accept that the state of Palestine is considered to exist by the majority of the General Assembly and UNESCO, and accept the declaration, allowing the Pre-Trial Chamber to subsequently review the propriety of such a move? At least to have taken that decision would have being in keeping with the Court’s aim of extending its jurisdiction as far as is possible, of seriously and properly considering all invitations to do the same, and to work towards creating an framework that denies impunity to war criminals.

The ICC process has taken something of a battering over the past few years, largely on account of the many ill conceived decisions of the Prosecutor. Accusations of bias, prejudice and favouritism are inevitably going to be cast at international criminal tribunals, but the nature of the Prosecutor’s record is such that few can deny that this decision on Palestine denotes an utter abuse of the standards and of the independence that the Office of the Prosecutor is bound to uphold.

Come June Moreno-Ocampo will have left office but the ICC will still be here. So will Palestine, and I sincerely hope that the Palestinian representatives seek to reengage with the Court. This should not be considered as just a technocratic process aimed at confirming borders or a political move for garnering recognition. Rather it should develop on the basis that within a people’s right to self-determination lies the notion that any individual responsible for the commission of war crimes or crimes against humanity must not be rewarded with impunity but must be held individually criminally responsible.