Legal Affairs: No grounds for complacency

Considerable legal hurdles would hinder any attempt to bring complaints against Israeli officials to the International Criminal Court.

ICC (photo credit: Reuters)
(photo credit: Reuters)
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 successful.
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 Justice.
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,” said Baker.
That upgrade would unlikely be full observer status, and the PA would potentially only achieve the status of nonmember observer state, Baker believes.
“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.
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.
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 so.
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 court’s authority.
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 declaration.
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 crime”.
ACRI attorneys have postulated in a position paper that this might potentially open the door for the prosecution of Israelis responsible for establishing settlements.
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 occupies.”
The problem for the PA is that the Geneva Convention relates to forced population transfers, which is clearly not applicable to Israel’s settlements.
The Rome Statute, on the other hand, is.
According to 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 settlements.”
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 Israel.
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 soldiers.
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 Kaufman.
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 states.

“It would be hard to identify a perpetrator to put on trial,” said Kaufman.
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.”