With Palestinian Authority President Mahmoud Abbas poised to submit a bid to the
United Nation to recognize Palestine as a sovereign state, Israeli international
law experts are considering some of the legal implications should that bid be
One of the much-discussed repercussions of a successful
statehood bid is the PA’s ability to potentially become a party to the
International Criminal Court (ICC) and the International Court of
However, with the Security Council route blocked by an American
veto, Alan Baker, director of the Institute for Contemporary Affairs at the
Jerusalem Center for Public Affairs and a former legal counsel of Israel’s
Foreign Ministry as well as a former ambassador to Canada, says that there is
doubt whether a UN General Assembly resolution would be enough for the ICC to
recognize the PA.
“The UN General Assembly has no power or capability to
establish states, and the maximum the PA can hope for is some type of upgrade,”
That upgrade would unlikely be full observer status, and the
PA would potentially only achieve the status of nonmember observer state, Baker
“So the question is, if the PA tries to bring claims against
Israeli officials or ministers in the ICC, will the prosecutor recognize them as
a state? Will he regard the UN resolution as sufficient?” Baker said.
ICC can try individuals for war crimes, crimes against humanity and genocide in
states that are party to its founding treaty, the 1998 Rome
States not a party to the statute may also make a declaration
recognizing the court’s jurisdiction on their territory, which is the route the
PA would take in order to become a party to the ICC.
According to Baker,
while ICC Prosecutor Luis Moreno Ocampo should not admit the PA as a party to
the ICC, since it is not in the UN General Assembly’s jurisdiction to confer
statehood, there is still a danger Ocampo might be persuaded to do
However, such a decision would be political rather than legal, as
former US ambassador to the UN John Bolton noted in a recent Fox News op-ed, in
which he wrote that such a political decision by the ICC would be outside the
Notably, however, the PA has already attempted to gain
ICC recognition. In 2009, following Operation Cast Lead, PA representative Ali
Kashan submitted a declaration stating that the PA recognized 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.”
And significantly, while the PA were not admitted as a
party to the ICC, the Prosecutor has yet to reject their
Baker argues that even if the Prosecutor were to admit the
PA to the ICC, Israeli lawyers could raise legal claims over the validity over
the PA’s claims to statehood.
Israel could claim, as it already has, that
the PA does not meet the criteria for a full state since it is not capable of
governing all its territory; neither can it commit to observing international
norms and obligations.
However, according to attorney Limor Yehuda of the
Association for Civil Rights in Israel, should the PA be successful in becoming
a party to the ICC, there is a danger that it will attempt to bring complaints
against Israel regarding its West Bank settlements.
In that case, Israel
could be in trouble, Yehuda says, because of Article 8.2.b.viii of the ICC’s
Rome Statute, which states that “[t]he transfer, directly or indirectly, 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” is a “war
ACRI attorneys have postulated in a position paper that this
might potentially open the door for the prosecution of Israelis responsible for
The Rome Statute article is important for the
PA, who have previously failed to argue that Israel’s settlements violate
Article 49 of the Fourth Geneva Convention Relative to the Protection of
Citizens (1949), which states that “the Occupying Power shall not deport or
transfer parts of its own civilian population into the territory it
The problem for the PA is that the Geneva Convention relates
to forced population transfers, which is clearly not applicable to Israel’s
The Rome Statute, on the other hand, is.
Baker, who was involved in negotiating the Rome Statute, Syria and Egypt
specifically pushed for the article on population transfer to be included, so
that it would apply to Israel’s settlements.
“Part of the text was
re-drafted to mold it to be applicable for Israel,” Baker said. “They added the
words ‘directly or indirectly’ to get around the issue of forced population
transfer. It was a clear game that was played.”
Neither Egypt nor
Syria have ratified the Rome Statute, and only four Arab League members have
done so: Jordan, Djibouti, the Comoros Islands and Tunisia.
Attorney Nick Kaufman, an ICC
defense counsel, notes that Israel refused to sign the Rome Statute and viewed
the addition of the article deeming population transfer a war crime as
“hijacking” by Arab states.
“Israel has always argued that the transfer
of populations was not a war crime under international humanitarian law,” said
Kaufman. “But in this case a particular political agenda criminalized the
However, international law experts agree that any complaint
made by the PA would be strongly contested by Israel and would be unlikely to
ever go before the ICC trial chamber.
Complaints to the ICC can be made
either by a state party to the court, by the Prosecutor himself or by the UN
Security Council, which has thus far never made any claim against
Initially, the prosecutor must analyze a complaint’s seriousness
before deciding whether to open an investigation, and can rule a case
inadmissible if it fails to pass a ‘gravity threshold’.
For this reason,
Kaufman says that any complaint on the grounds that Israel’s settlement policy
constitutes a war crime would likely be dismissed.
To date, the six
investigations opened by the ICC have involved mass atrocities in which hundreds
or thousands of people are displaced, killed, raped (as in the case of Darfur,
Sudan) or (as in the case of Uganda) forced as children to become
Kaufman also notes that any PA complaint would fail the ICC
norm of complementarity. The ICC does not have primary jurisdiction over
states, and acts only when governments have failed to investigate and prosecute
serious crimes of international interest.
“Israel has a functioning legal
system and conducts its own investigations into allegations of war crimes,” adds
Consequently, if Israel showed that it had investigated any PA
complaint that fell under the ICC’s jurisdiction, it is likely the ICC would
move to dismiss the complaint.
Another crucial problem the PA would face
in attempting to bring a complaint to the ICC over Israel’s settlements would be
who to prosecute, as the ICC only prosecutes individuals and not
“It would be hard to identify a perpetrator to put on trial,”
Kaufman also points out that, even if the ICC did admit the
PA as a party, the PA would not be able to bring complaints against actions in
Gaza as it has no jurisdiction in that area.
Despite these very real
difficulties that the PA would face both in having the ICC recognize it as a
state and in succeeding to bring complaints, legal experts agree that Israel
cannot afford to be complacent.
“A danger does exist, and it is a danger
we cannot ignore,” concluded Baker. “Israel should not be flippant.”
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