Why the Palestinian Authority Should Avoid Arafat’s Death

by Kevin Jon Heller

So this is a well-intentioned but problematic idea:

The Palestinians want the International Criminal Court (ICC) to launch an investigation into the death of Yasser Arafat, a senior Fatah official announced on Sunday.

Jamal Muheissen, member of the Fatah Central Committee, claimed that Israel was responsible for the death of Arafat, who died in November 2004.

“This file will be presented to the International Criminal Court,” Muheissen told the Palestinian Shms News Agency. “We want to bring the Israeli occupation to trial for every crime it committed against our people.”

[snip]

Arafat, who signed the 1993 Oslo interim peace accords with Israel but then led an uprising after subsequent talks broke down in 2000, died aged 75.

His death came four weeks after he fell ill following a meal, suffering from vomiting and stomach pains, in his Ramallah compound while surrounded by Israeli tanks.

To begin with, even if the Court had jurisdiction, it is unlikely that the OTP would investigate Arafat’s death. There are indeed significant questions about his death, and it would not surprise me if Israel is responsible for it. But the case is far from clear, and the OTP would be hard-pressed to investigate it effectively. So the OTP would almost certainly choose — if it ever opened a formal investigation into the situation in Palestine, which I continue to strongly doubt — to focus on much more obvious crimes committed by Palestine and Israel.

The jurisdictional issue, however, is the real kicker. Arafat died in 2004, so in principle his death is within the ICC’s temporal jurisdiction. And unlike my friend Dov Jacobs, I don’t think Palestine is categorically prohibited from accepting the Court’s jurisdiction earlier than 13 June 2014 through a second Art. 12(3) declaration. But does Palestine really want to force the Court to determine whether it was a state in 2004? The first declaration was very smart — although the judges will still have to decide at some point on Palestinian statehood, the fact that the declaration does not purport to accept jurisdiction prior to UNGA Resolution 67/19 makes it very unlikely the judges will second-guess the OTP. All bets would be off, though, with a second declaration that looked back to 2004. There would be no conflict between the judiciary and the OTP if the judges refused to conclude that Palestine was a state when Arafat died; on the contrary, the OTP seems to believe that Palestine was not a state — at least for purposes of ICC membership — until the UNGA upgraded its status. Moreover, the judges can’t exactly relish having to determine not only when Palestine became a state, but also the proper test for making that determination. So we can expect them to take a very conservative approach to Palestinian statehood.

There is little question that the case for Palestine’s statehood has received a significant boost by its membership in the ICC. The last thing Palestine should do now is risk undoing all of its good work by pushing the Court to investigate an unclear event committed more than a decade ago.

http://opiniojuris.org/2015/01/20/palestinian-authority-leave-arafat/

2 Responses

  1. You say that you would not be surprised if Israel was responsible for Arafat’s poisoning. Would you care to share with us the evidence that you have that could conceivably support such a claim?

  2. Response…unlike my friend Dov Jacobs, I don’t think Palestine is categorically prohibited from accepting the Court’s jurisdiction earlier than 13 June 2014 through a second Art. 12(3) declaration.

    I think Dov’s analysis is probably correct with regard to the operative design of the text as it evolved during the Rome Conference. However, I agree with you that it wasn’t intended to produce the results envisioned by André. Every edition of the Rules of Procedure and Evidence (as approved and adopted by the Assembly of State Parties) has explicitly permitted the Registrar, acting upon the request of the Prosecutor, to ask for and accept Article 12(3) declarations from State Parties in accordance with the instructions contained in Rule 44. As Dov suggests, the exact wording there indicates that an Article 12(3) declaration has to be requested by the Prosecutor. I don’t know if the OTP has ever privately solicited any declarations from non-member states in actual practice. But it could plausibily claim that any unsolicited ones were invalidly filed. Prof Schabas has noted that neither the travail préparatoire nor the early commentaries mentioned or envisioned self-referrals. Nonetheless that has emerged as the predominate pattern and Court practice. All of that is still in keeping with the overall concept and intent of establishing an entity that can end impunity for crimes committed after its establishment through either an accession or an ad hoc declaration consenting to the exercise of the Court’s jurisdiction.

    In any event, the government of Palestine certainly doesn’t think that they are debarred from submitting another declaration. The latest one was filed after consulting with the Registrar and it contains a clause which explains that it was without prejudice to any future Article 12(3) declarations. At the UN press conference regarding the accession, the Palestinian Ambassador said the government had requested retroactivity with regard to jurisdiction over crimes committed during the last war in Gaza and “was reserving its right to retroactivity with regard to other crimes.” That comment is @ 7:06 and you can see the whole video here http://youtu.be/CWa0jZxlbGY

    Re: But does Palestine really want to force the Court to determine whether it was a state in 2004?

    You get to be a state by acting like one. Palestine’s land, water, rock quarries, and other resources are being pretty freely plundered, while its own revenues are being withheld. Israel is profiting handsomely from its own wrongdoing, while constantly threatening to cutoff vital services to Gaza, the West Bank, and East Jerusalem for non-payment and instigating lawsuits abroad through its own parastatal agents. Like any other state, Palestine should assert its statehood and international standing in the normal course of events, while pursuing its own claims against Israel’s foreign assets in the courts of every single country that has recognized it.

    There have been reports which indicate the Palestinian Authority has over a billion dollars in frozen accounts around the world as a result of lawsuits. So, it would definitely be in Palestine’s best interest to have its own foreign sovereign immunity respected and to have Israel’s agents, like Shurat Ha Din, ordered to first exhaust any remedies available from the Courts of Palestine.

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