Can ICC recognize ‘Palestine’ even if move violates international law?

The Hebrew University conference on the law of armed conflict was organized by the university’s Minerva Center and the International Committee of the Red Cross.

By YONAH JEREMY BOB
The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)
Former Foreign Ministry official Yael Ronen and current Justice Ministry official Gilad Noam on Tuesday intensely debated whether a State of Palestine could already exist even if it was achieved without following proper statehood processes.
The Hebrew University conference on the law of armed conflict was organized by the university’s Minerva Center and the International Committee of the Red Cross.
Headlining the conference was Charles Allen, a top US Department of Defense official on the laws of war, and the architect of the department’s manual on those laws.
On Tuesday, the conference’s attention turned to the debate over whether Palestine is a state for the purposes of pursuing war crimes allegations against Israel at the International Criminal Court.
Ronen, who after seven years in the foreign ministry legal department has spent more than a decade in academia, said even though the process leading to ICC prosecutor Fatou Bensouda recognizing Palestine was problematic, statehood is a self-evident fact.
Noam disagreed, presenting the case that Israel has continued to make – that Bensouda should reverse her decision.
The two international law experts agreed there was no State of Palestine the first time the issue came before the ICC prosecutor’s office during the 2009 to April 2012 period – which even the ICC Prosecutor agreed with at that time.
They also both seemed to consider Bensouda’s decision to recognize Palestine as a state in January 2015 on the basis of a November 29, 2012 vote by the UN General Assembly, endorsed by UN Secretary-General Ban Ki Moon, as at the very least questionable.
But there the two parted ways – and with crucial implications.
Ronen said it would have been better if the ICC prosecutor “stayed out of” the statehood issue, noting it was “unusual for a legal body to engage in statehood issues” and could lead to the ICC’s “politicization.”
But she also said that any “legal analysis is based on facts and facts set the stage,” implying that maybe the ICC prosecutor and the UN General Assembly countries who recognized Palestine should not have, but since they did, their actions created Palestine, whether it was the proper procedure or not.
Expressing further misgivings about a state emerging from under “occupation,” Ronen said this peculiarity was effectively irrelevant since “it did not bother any states.”
She said that “world perception has shifted” since April 2012 when the ICC rejected recognizing Palestine as a state.
While some tests for statehood require full control of a territory, Ronen argued that “even if the Palestinians don’t have full control, they have more than nothing; they still have a lot” of control.
Noam rejected these arguments.
He criticized the idea of using facts on the ground that the Palestinians had created politically and with improper political and non-legal motivations for deciding whether a Palestinian state existed.
The Justice Ministry official argued that the whole idea of potential Palestinian statehood was both anchored in and limited by the 1990s Oslo Accords, meaning that there could be no Palestinian state that was not part of a consensual settlement with Israel.
He also pointed out that if Bensouda proceeds with the “State of Palestine” as things stand, she and the court will need to tangle with insoluble questions like what “Palestine’s” borders are, and what its population is, in order to move forward with the case.