Could Palestine Self-Refer Only the Situation in the West Bank?

by Kevin Jon Heller

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

http://opiniojuris.org/2012/12/22/could-palestine-self-refer-only-the-situation-in-the-west-bank/

4 Responses

  1. It seems also, based on the bold-ed language that even an attempt at limiting the self-referral to acts by the Israeli government in the West Bank may demand the OTP examine the events in Gaza.
    Specifically, “it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for [an individual] occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the [state party].” As a general principle of the operation of judicial proceedings, it is the responsibility and authority of the particular court to determine the scope of its jusridiction in the absence of specific limiting language.
    So it would seem inconsistent with basic principles of the Court to even allow the referring Palestinian state party to direct the court as to what does and does not fall within the “context” of the “ongoing situation of crisis”, i.e., actions taken in the West Bank especially when the Israeli government operates under a national defense strategy that likely recognizes that actions in Gaza impact what occurs in the West Bank and vice versa.

  2. Another problem with limiting a referral to the West Bank is that that is where the Palestinian capital is, and presumably where central decision making takes place. “Hamas” is often discussed as if it were a different entity from the PA, but to my (limited) understanding, it is simply that political party that was elected in the  Gaza portion of PA territory  just as Fatah controls the West Bank. Abbas, however, is the President of the entire PA. Thus he (and the PA government in general) may have some responsibility to control conduct in Gaza. 
    Decisions about trying, or not trying, to prevent war crimes from Gaza, were presumably made in Ramallah, and would fall within the Court’s jurisdiction. Especially given the PA’s earlier referral was specifically for Gaza, it would be hard for it to now say it has nothing to do with Gaza. 
     

  3. Looking at the situation more broadly, we all want peace, and yet, after more than a century of conflict, the struggle between these two related nations remains more intractable than ever. Why?
     
    Because each side is entrenched in its own narrative, to the exclusion of the other’s.
     
    Its faults notwithstanding, one must admit that Israel has taken some steps since the Oslo Accords toward acknowledging the Palestinian suffering. These steps are reflected in school books, in the media, and through other informational outlets. The Arabs of the West Bank and Gaza, for instance, are now referred to as “Palestinians,” and most Israelis would like to see a Palestinian state emerge. The fact that Israeli voters don’t reflect these wishes has to do with fears of surface-to-air missiles two miles from Ben-Gurion International Airport, and scarred memories of blown-up buses and pizzerias.
     
    The Palestinians, unfortunately, have done little to allay Israeli fears. While Palestinians clamor for the removal of onerous checkpoints and barriers, militant attempts to penetrate these barriers and attack Israeli civilians have not ceased at all since the second Intifada. Similarly, school books and speeches, in Arabic, have grown radical, to the point of portraying Israel’s very existence as a crime. Little has been done to acknowledge the Jewish roots in Palestine.
     
    The fact is that the Jewish presence in Palestine goes much farther back than most Palestinians, as well as Arabs and Muslims in general, would be willing to admit.
     
    Before 1948, Palestine was ruled by a series of empires. Before that Palestine was Judaea—a Jewish country. Jews have lived in Palestine continuously for more than 3,300 years. “Palestine” was the name given to the Jewish homeland in the second century by the Romans, in an attempt to break the Jewish adherence to the land. This was a century after the Jewish temple was destroyed and more than a million Jews were massacred.
     
    The Jews stopped fighting the Romans only after they had no more fighting men standing. As Evangelist William Eugene Blackstone put it in 1891, “The Jews never gave up their title to Palestine… They never abandoned the land. They made no treaty, they did not even surrender. They simply succumbed, after the most desperate conflict, to the overwhelming power of the Romans.”
     
    The Jews persisted through the centuries under the various empires, after the Arab invasion of 635AD (which they fought alongside the Byzantines), and after the Crusade massacres of the 11th Century, which decimated much of their population.
     
    Few Palestinians realize that Jewish customs, religion, prayers, poetry, holidays, and virtually every walk of life, documented for thousands of years—all revolve around Judaea/Palestine/Israel. For thousands of years Jews have been praying for Jerusalem in every prayer, after every meal, in every holiday, at every wedding, in every celebration. The whole Jewish religion is about Jerusalem and the Land of Israel. Western expressions such as “The Promised Land,” and “The Holy Land,” did not pop out of void. They have been part of Western knowledge and tradition dating back to the beginning of Christianity and earlier.
     
    After the Crusades, the Jews—including many who have returned over the centuries—lived peacefully with Arabs, often in the very same villages, as in Pki’in, in the Galilee, until the Zionist immigration of the 19th and 20th Centuries. Article 6 of the PLO Charter specifically calls for the acceptance of all Jews present in Palestine prior to the Zionist immigration. These Jews were simply another ethnic group in a region composed of Sunnis, Shiites, Jews, Druz, Greek Orthodox, Catholics, Circassians, Samarians, and more. Some of these groups, like the Druz, Circassians, Samarians, and an increasing number of Christians, are actually loyal to the Jewish State.
     
    Incidentally, genetic studies consistently show that Zionist immigrants (a.k.a., Ashkenazi Jews) are closely related to groups that predate the Arab conquest, like the Samarians, who have lived in Palestine for thousands of year.
     
    Palestinian denial of these facts may lead to events such as the ones brilliantly depicted in Jonathan Bloomfield’s award-winning book, “Palestine,” in which actual history and predicted events are thinly veiled as fiction.
     
    If, as the current Palestinian narrative goes, the Jews are not a people indigenous to Palestine but rather an invading foreign colonialist body, then they must be fought until they are removed from this land. Anything short of that, by any standard, would be injustice.
     
    Thus, war and bloodshed will continue until the Palestinians start acknowledging the Jewish narrative, and the fact that Jewish roots in Palestine date back thousands of years, long before the Arab invasion.

  4. All these discussions about the possible use of the ICC by the Palestinian Arabs merely confirm my suspicion that the ICC is merely another poorly disguised tool for lawfare.  Why should lawyers, as opposed to partisans or advocates, take this seriously? 

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