The Advantage for Palestine of a Slow Preliminary Examination

The Advantage for Palestine of a Slow Preliminary Examination

Nearly everyone treats Palestine’s membership in the ICC as a done deal; after all, the UN Secretary-General (UNSG) has accepted Palestine’s accession to the Rome Statute and the OTP has publicly stated that “since Palestine was granted observer State status in the UN by the UNGA, it must be considered a ‘State’ for the purposes of accession.” But neither the UNSG nor the OTP has final say over whether Palestine qualifies as a state; as Eugene Kontorovich, my friend and regular Israel/Palestine sparring partner, has repeatedly pointed out on Twitter (see here, for example), statehood is a legal issue that the ICC’s judges will eventually have to decide.

Unlike Eugene, I would be very surprised if the judges second-guessed the UNSG and the OTP and held that Palestine does not qualify as a state. But it’s certainly possible. So here is something for Palestine to consider: because the ICC’s judges cannot make a determination concerning Palestine’s statehood until the OTP has decided to formally investigate the situation, the longer the preliminary examination takes, the longer Palestine will have to make it more difficult for the judges to decide against it.

I don’t want to get into too much detail about the relevant provisions in the Rome Statute; a brief summary should suffice. Art. 15, which concerns proprio motu investigations — the current situation regarding Palestine, because the OTP treats an Art. 12(3) declaration as a request for an Art. 15 investigation — does not permit the Pre-Trial Chamber (PTC) to determine whether a situation “appears to fall within the jurisdiction of the Court” until the OTP has asked it to authorise a formal investigation. Art. 18, which in certain circumstances requires the OTP to defer to state investigations of specific suspects, also does not apply until the OTP has decided to formally investigate (whether proprio motu or on the basis of a state referral). And Art. 19, the basic complementarity provision, does not permit a state to challenge admissibility until there is a specific case pending and does not permit a suspect to challenge admissibility (which includes jurisdiction) until a warrant for his arrest or a summons for his appearance has been issued — both of which occur subsequent to the opening of a formal investigation.

There is, in short, only one party that can ask the PTC to decide a jurisdictional issue prior to the commencement of a formal investigation: the OTP itself. That’s Art. 19(3). And it’s safe to say that the OTP won’t ask the PTC to determine whether Palestine qualifies as a state before it has to.

That means, of course, that it could easily be years before the PTC gets to weigh in on the issue of Palestinian statehood. Why is that a good thing for Palestine? Most obviously, because it gives it more time to get its statehood ducks in a row — acceding to more international conventions, resolving internal political differences, seeking additional recognitions of Palestine as a state, etc. More importantly, though, it gives Palestine time to become an integral member of the Court, thereby increasing the institutional pressure on the PTC to conclude that it is a state. Assume that the OTP takes four years to open a formal investigation, which would be relatively quick by OTP standards. Palestine could — and should! — take advantage of that gap to pay dues each year to the ICC; to attend the annual sessions of the ASP (as it did as an observer in the 13th Session) and participate in its intersessional work; to nominate Palestine’s delegate to the ASP for a position in the Bureau; and (better still) to nominate a Palestinian as a judge. After four years of such involvement, it would be very difficult for the PTC to conclude that Palestine was not a state, given that such a decision would force the ASP to expel the Palestinian delegate, (presumably) refund four years of Palestine’s dues, and perhaps even unseat a Palestinian judge.

I’m sure some readers — particularly those who believe that Palestine cannot qualify as a state as long as Israel illegally occupies its territory — will find my strategy cynical. Perhaps it is — but it would hardly be the first time a state acted strategically with regard to an international organisation. After all, Israel is the culprit-in-chief in that regard; its favourite strategy, which is the height of cynicism, is to refuse to cooperate with an international investigation and then dismiss the results of that investigation as “one-sided” and thus biased. Moreover, I use the term “state” with regard to Palestine deliberately; contrary to the view of many pro-Israel commentators, the Montevideo criteria do not remotely doom Palestine’s claim to statehood. On the contrary, I believe Palestine has legally qualified as a state under those criteria for many years. But that is a subject for another day. (Interested readers can start with this brief, written by Errol Mendes.)

For now, Palestine needs to take full advantage of its admittedly provisional membership in the ICC. As a wise man once said, if it walks like a duck and quacks like a duck…

Topics
Courts & Tribunals, Foreign Relations Law, International Criminal Law, International Human Rights Law, Middle East, North America, Organizations
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el roam
el roam

Thanks for an interesting post . very complicated , but one issue for the time being : I am not so sure, that currently and prospectively, given the current configuration, the theoretical Palestinian state, is an effective idea. one should not forget : Signing treaties and conventions and declarations of all sorts, won’t do, if the Palestinian territory or authority, can’t effectively behave and act like a sovereign state. The whole area is divided to many dozens sub areas (A, B, C, Gaza, west bank) they are surrounded by the Israeli state and the Israeli army, no borders recognized, no access to the outside world, this is not a state one may argue, and can’t be. Hereby a link to a map , describing the situation : the red zone is area : A and – B and Gaza(the last one is separated to the left and downward ) while the beige zone , is under total Israeli control ( zone – C ) . as one may see , no access at all , for the Palestinians authority ,whether to borders , to outside world , and anyway one may argue , for having any effective sovereign capabilities .… Read more »

el roam
el roam

just for clarifying my comment above , effective capabilities of palestinian state , given article 1 for exe . of Montevideo convention , stating so :

” The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states”

Thanks

el roam
el roam

Kevin , Thanks for the comment . You may think and believe of course, that the Palestinians have the right to self determination, but this is rather a subjective criteria (not to be knocked down by itself of course). What I have been raising, are objective criteria, standing on their own ground, notwithstanding the subjective perception of no one involved or not. Look good at the map, try to figure it out: how divided and separated are the Palestinian areas, around 200,000 of them, in the west bank are under full control of the Israeli army (zone C), and some hundred thousand others, under military control of the Israeli army, and civil control of the Palestinian authority (zone B, and hardly so you may argue) let alone, the fact that they can’t come in, go out of their borders, and if so, only with the approval of Israel. This is not one piece of territory, not two, not three, but multiple messy configuration , look again at the map. It’s not a moral issue , it’s an objective one . To my best knowledge, not at all analogous to states got independence mentioned by you. Please, demonstrate (if I am… Read more »

William Worster
William Worster

I suppose that – technically speaking – the judges will apply the Rome Statute, and thus must necessarily interpret the word “state”, but I am not so sure that the interpretation that Palestine is not a state is really open to them now. This is really grasping at straws. In interpreting the Rome Statute, the judges will apply the VCLT which provides that subsequent practice of the parties to the treaty can clarify the meaning. If the ASP has admitted Palestine, then that is pretty strong subsequent practice for how the term “state” is understood by the very authors of the Rome Statute. In addition, as I have argued elsewhere, the ASP long ago admitted the Cook Islands (not a UN member and surely as questionable a state as they come), and there were no furious op eds in the New York Times about it at the time. This constitutes settled practice so what evidence can we point to that the Rome Statute should interpreted otherwise? I think the ship has sailed. Of course it would be a different question if the OTP years ago at the time of the acceptance of jurisdiction had just referred the question to the… Read more »

el roam
el roam

Kevin ,

The self determination, was driven by subjective urge, and finally have become an objective observation . Yet, their capacity to control, is subject to objective one, in this regard that even a reasonable Palestinian, could reach the same stated conclusion , that:

they can’t actually control and rule like normal state .And that is why it is a subjective one , or test ( has nothing to do with their wishes or will , but bared by the israeli state , israeli army , and the territorial configuration ) .

Thanks

William Worster
William Worster

All this talk of objective and subjective misses the point though. The ICC is governed by the Rome Statute. The judges will need to interpret that treaty in reaching any conclusion on the matter. So the only way occupation, control and the zones is relevant is whether it has any bearing on how “state” should be interpreted under the Rome Statute. I submit that the ASP has already established subsequent practice on how “state” in the Rome Statute is meant to be interpreted, which appears to be different from “state” for other considerations.

Avi Keslinger
Avi Keslinger

I object to the contention that Israel is illegally occupying Palestinian territory. There has never been a state of Palestine or a Palestinian people. As late as 1967 Mark Twain observed that the land was desolate except for a few Bedouin nomads and a few city dwellers. It was not until the Jewish settlements brought economic opportunity that Arabs migrated from Syria and Lebanon in search of work.

Moreover, the San Remo Conference called for the establishment of a Jewish state in former Ottoman province known as Palestine, which included Judea, Samaria and present-day Jordan (which was later given to Emir Abdullah for services rendered in World War I and thus is the logical place for some kind of “Palestinian” entity). Judea and Samaria are the heart of the ancient Jewish homeland. They are Jewish territory and should be part of Israel.

el
el

Avi, in 1967 Mark Twain was probably writing from heaven. Twain was sarcastic. State is a Western concept. San Remo is irrelevant, is the approval of the Mandate that counts: Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People”. Lord Curzon corrected him: “No. ‘Establishing a National Home in Palestine for the Jewish people’ – a very different proposition”. The British White Paper of June 1922 – the first document that officially clarified the interpretation of the Mandate’s text – clarified that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the most relevant aspect – that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted that “the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the… Read more »

Akiva
Akiva

Kevin,

FWIW, I mostly blame well-meaning Westerners who, by adopting ludicrous positions like “Israel is the culprit-in-chief” and generally focusing on pressuring Israel, encourage Palestinian rejectionism and the “from the river to the sea” chants and goals that make peace impossible.

Put very simply, if you want peace in the Middle East, pressuring Israel is not the way to go about obtaining it. Pressuring the Palestinians to adopt practices that will enable Israelis to trust that an accord will actually lead to peace (rather than merely providing Palestinians with a better platform for continued war) is.

el
el

Akiva,
I may add to Kevin’s words that until there is an occupying power (the only case in the world in which a country occupies a territory for almost 50 years without taking any responsability for the local non-jewish population) and an occupied population, your attempt to put them on a equal footing is highly misplaced.

Hostage
Hostage

Re: …statehood is a legal issue that the ICC’s judges will eventually have to decide. Their not alone. So, even that decision might not be completely dispositive. For example, the Palestinians have a General Assembly resolution in hand which explicitly acknowledged the role of the PLO Executive, “acting as the Provisional Government of the State of Palestine” on the basis of the 1988 declarations of the Palestine National Council. Nothing prevents that same government body today from exercising their option to file a declaration accepting the compulsory jurisdiction of the ICJ for the purpose of the UN Genocide Convention, retroactive to November 1988. In fact, declarations accepting ICJ jurisdiction are customarily considered to have retroactive effect, unless they contain an explicit reservation to the contrary. FYI, the first case in which the PCIJ had to deal with the issue of retroactivity involved the declarations in the Mavrommatis Concessions Cases. The Court eventually decided that the “state” to which those concessions had been subrogated was “Palestine”, not Great Britain. Hersh Lauterpacht, Norman Bentwich, and Marjorie M. Whiteman each wrote journal articles, digests of international law, and international law reports which explained over and over again that the courts and international arbiters… Read more »

Hostage
Hostage

P.S. I need to apologize. I started to say It’s their headache and changed my mind. My editted results above should have said “They’re not alone” instead of “Their”.

el roam
el roam

Hostage , Thanks for your comment . You should read carefully what I have stated: 1) Self determination starts or driven by subjective urge, and only then, becomes objective observation.Typically, no one would declare a certain ethnic group as national, unless they would first do it !! all that: 2) Contrary to the effective capacity to rule over a state , or run a state with effective capabilities . For that think : consiste on an objective observation, not a subjective one. You can declare yourself as a state, and even gain legal international recognition, but, in light of the situation in the field itself, I mean geopolitical one: It won’t yield any effective control of central government . it would be a farce , it is immoral in fact , corrupting the notion of stathood : How exactly the Palestinian authority shall provide : services , security , access to world outside ?? How shall it collect taxes ?? the Palestinians depend totally or are totally at the hands of the army and Israeli state , by all means so !! And to such observation , even a reasonable palestinian can and should reach ( like Abu mazen himself… Read more »

el roam
el roam

Hostage , I simply didn’t have time and resources in my last comment , yet , one should only notice , that the crime of apartheid is not relevant at all to current situation in Gaza and west bank . A basic condition for committing such crime, is that the ethnic group, subjected to it, will form integral part of the constitutional platform or the regime. in the west bank we deal with occupation , not same regime at all , and the same ( constructively ) concerning Gaza . Since , They are not integral part of the israeli regime , they are not civilians at all ( whether in areas : A, B , C ) , in such : one could claim that they are denied indeed : effective self determination , oppressed by occupation ( which is legal in it’s turn ) state of their own , but : Not de jure or de facto even : discrimination which is at the heart of that crime . And indeed, the crime of apartheid is a constitute of crimes against humanity, which typically may take place within the same entity, differentiated from war crimes, or aggression, typically… Read more »

Hostage
Hostage

Re: I simply didn’t have time and resources in my last comment , yet , one should only notice , that the crime of apartheid is not relevant at all to current situation in Gaza and west bank . A basic condition for committing such crime, is that the ethnic group, subjected to it, will form integral part of the constitutional platform or the regime. That’s nonsense. The 1970 ICJ case regarding the continued South African occupation of Namibia was an example where one state was comitting aparthied on the territory of another. Article 85 of the 1st Additional Protocol to the Geneva Conventions has been ratified by 174 countries. It also says that aparthied can be a war crime: …4. In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in… Read more »

el roam
el roam

Hostage , First of all , don’t write to me ” nonsense ” !! I have very short patience for lack of politeness and organized dialogue. but if already you have done it , and have written it , at least it should have been relevant to what I have written : Means : Acording to rome statute !! Now , can you show me , according to Rome statute , that it is relevant to claim : apartheid crime commited by the israeli occupation ?? The Rome statute, makes a clear distinction between, war crimes, and the crime of apartheid. at the very heart definition of it , there is : domination of one racial group over any other one . The conclusion would be then : That every occupation consiste on crime of apprthied ?? Otherwise, how one racial group can become dominant upon the other one ?? Since , This is the natural outcome of every occupation!! Now , if you want to conduct a dialogue ahead , do it politely please, you have only one more additional chance for it !! I could go back to your previous comments above , and make them , easily… Read more »

Hostage
Hostage

Re: 1) Self determination starts or driven by subjective urge, and only then, becomes objective observation.Typically, no one would declare a certain ethnic group as national, unless they would first do it !! 2) Contrary to the effective capacity to rule over a state , or run a state with effective capabilities . For that think : consiste on an objective observation, not a subjective one. You’ve been drinking too much Zionist Kool-Aid. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations stipulates several valid modes of exercising the right of self-determination, including the establishment or disolution of a union with another existing state. FYI, Israel signed its 1949 Armistice Agreement with the new “Jordan” entity not Transjordan), after the Jericho Congress of Arab Palestine had named Abdullah “The King of Arab Palestine” in December of 1948 and called for the establishment of a joint kingdom. The measure was approved by their counterparts in the Transjordanian Parliament in January of 1949 before the armistice agreement was concluded. The lawmakers from both territories subsequently ratified the actions taken by the King in an Act of Union between… Read more »

Hostage
Hostage

Re: Means : Acording to rome statute !! Now , can you show me , according to Rome statute , that it is relevant to claim : apartheid crime commited by the israeli occupation ?? The Rome statute, makes a clear distinction between, war crimes, and the crime of apartheid. Palestine is a state party to both the Rome Statute and the 1st Additional Protocol. The protocol is therefore one of the “applicable treaties” that the Court can apply to any crimes committed on Palestine’s territory in accordance with Article 21(1)(b) of the Rome Statute. You said that “A basic condition for committing such crime, is that the ethnic group, subjected to it, will form integral part of the constitutional platform or the regime.” But neither Paragraph 7 of the Rome Statute, nor the Elements of the Offense published by the ICC contain any such stipulations. The acts listed are crimes when they target “any civilian population”: Article 7 (1) (j) Crime against humanity of apartheid Elements 1. The perpetrator committed an inhumane act against one or more persons. 2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of… Read more »

Hostage
Hostage

P.S. The inclusion of the crime of apartheid in the Rome Statute appears to have been based upon recognition of the customary status of its prohibition as a crime against humanity. The existence of a nexus to an armed conflict wouldn’t necessarily bar prosecution of the war crime described in the 1st Additional Protocol, since Article 7 and the Elements of the Offense still mention “a widespread or systematic attack”. Under the heading “The General Normative Framework, A. International Armed Conflict,” The Israeli Ministry of Foreign Affairs advises that it recognizes some portions of the Additional Protocol as a reflection of customary law that applies to the Gaza conflict: In particular, Israel’s High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organisations, including Hamas, Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention, (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions on 1949. Israel is not a party to the Additional Protocol I, but accepts that some of its provisions accurately reflect customary international… Read more »