Israeli NGO Regavim submitted a petition this week to the International Criminal Court in The Hague, asking its registrar to revoke her decision to receive a Palestinian Authority declaration recognizing the court’s jurisdiction “for the purpose of identifying, prosecuting and judging the authors and accomplices of crimes committed on the territory of Palestine since July 1, 2002.”
PA representative Ali Khashan submitted the declaration to Silvana Arbia, the ICC registrar, in 2009, immediately after the IDF’s Operation Cast Lead offensive against Hamas in the Gaza Strip.
However, according to Regavim, Arbia should never have accepted the PA’s declaration, because only internationally recognized states can declare their recognition of the ICC’s jurisdiction in their territory.
The ICC can try individuals for war crimes, crimes against humanity and genocide in states that are party to its founding treaty, the 1998 Rome Statute.
Other internationally recognized states that are not a party to the Rome Statute may also make a declaration that they recognize the court’s jurisdiction on their territory.
The PA’s declaration to the ICC was made in the context of Operation Cast Lead, and followed comments from the ICC prosecutor, Luis Moreno Ocampo, that the court did not have the authority to investigate Israeli military actions in Gaza.
However, according to attorney Nick Kaufman, Regavim’s counsel and an ICC defense counsel, the PA’s declaration was also a subtle attempt by the PA to get the ICC to recognize Palestinian statehood.
“When the ICC registrar received the PA’s declaration, she should have dismissed it, because Palestine is not a state,” Kaufman said. “However, the registrar received it, and passed it on to the ICC prosecutor.
Is the prosecutor by implication accepting that Palestine is a state?” Moreno Ocampo, however, has never explicitly declared that he recognizes Palestine as a state.
Instead, when the ICC prosecutor received the PA’s declaration, he invited international groups to submit their opinions as to whether Palestine is a state.
Moreno Ocampo also approached Israel for an opinion, but the government declined to provide one on the grounds that it is not a party to the Rome Statute and not a member of the ICC.
Regavim says, however, that the ICC’s mistake was not that Moreno Ocampo decided to receive the PA’s declaration, but that the ICC registrar ever received it in the first place.
“That declaration was submitted by a body that is not competent to file such a document.
There is no difference between the PA filing such a declaration and, say, the Beit Shemesh Municipality,” Kaufman said.
According to Kaufman, another issue raised by Regavim in its letter to the ICC centers around the PA’s plans to make a unilateral bid for statehood to the UN General Assembly this month, and what effect that would have on the PA’s status with the ICC should that bid be accepted.
“The UN has primacy over the ICC, so the fact that the PA is asking the UN to recognize Palestine as a state means that the PA can’t have recognized itself as a state when it made its declaration to the ICC,” Kaufman said.
He acknowledged, however, that if the UN General Assembly did recognize the PA’s statehood bid, then the PA’s arguments for its ICC declaration could be stronger.
Regavim’s letter notes that the boundaries of any potential Palestinian state are “still subject to dispute among Palestinian leaders who currently prevaricate over the question whether to seek recognition of a state within boundaries resulting from the 1967 Arab-Israeli conflict or whether to petition for more.”
According to the ICC’s regulations, the ICC can exercise jurisdiction if the alleged crime took place on the territory of the state accepting the jurisdiction of the court.
Regavim argues that, even in the case of a consensus to declare a
Palestinian state within the June 4, 1967, lines, the PA would not be
able to refer to the ICC cases involving territory over which it had no
judicial authority, which would include the Gaza Strip, whose territory
is under the control of Hamas and not the PA.
Khashan, the PA representative who submitted the declaration to the ICC,
did not have any authority to act on behalf of Hamas, the letter
Regavim have asked the ICC registrar to revoke her acceptance of the
PA’s declaration within seven days. If she fails to do so, Regavim will
consider petitioning the ICC’s presidency over the matter, Kaufman said.
Dan Izenberg contributed to this report.