dore gold 248 88 aj.
(photo credit: Ariel Jerozolimski [file])
The International Criminal Court in The Hague on Wednesday held a debate on
whether or not to accept a declaration by the Palestinian Authority expressing
its readiness to recognize ICC jurisdiction over “the territory of Palestine,” a
decision which could impact heavily on the peace negotiations and the PA’s
threat to unilaterally declare statehood.
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According to Dore Gold, head of
the Jerusalem Center for Public Affairs and one of the participants in the
debate, a decision by the court prosecutor to accept the declaration would have
“huge implications. It amounts to an official request by the PA that the
prosecutor confirm that it be considered a state.
“Even if the
recognition will only apply to the ICC,” he said, “it will trigger a process of
unilateralism which the PA is already considering which will undermine the peace
Four experts on either side appeared before ICC prosecutor Luis
Moreno Ocampo and his staff. Those who spoke in favor the PA declaration were
John Quigley, Chantal Meloni, Michael Kerney (on behalf of the Palestinian human
rights organization Al- Haq) and Vera Gowlland-Debbas.
against the declaration were Gold, Malcolm Shaw, David Davenport and Jay Sekulow
of the European Center for Law and Justice.
Immediately after Operation
Cast Lead, on January 21, 2009, the Palestinian Authority submitted a
declaration to the ICC registrar, stating that it “recognizes the jurisdiction
of the Court for the purpose of identifying, prosecuting and judging the authors
and accomplices of crimes committed on the territory of Palestine since July 1,
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The PA based its declaration on Article 12(3) of the Rome Statute,
which provides that any state which is not a member of the ICC may, by
declaration lodged with the registrar, accept the exercise of jurisdiction by
the court with respect to a specific crime.
Since the PA declaration was
filed, the ICC has received many positions papers by international experts in
support or opposition to it.
Wednesday’s “round table” discussion at The
Hague was the last step before Ocampo decides whether or not to accept
Apart from the key danger inherent in the PA request as alleged by
Gold, the former Israeli ambassador to the UN also charged that Article 31 of
the Second Interim Oslo Agreement prevented the PA – as well as Israel – from
taking any unilateral action that would change the status of the West Bank and
the Gaza Strip pending the outcome of the permanent status
Gold added that the agreement “specifically stated that the
PA would not have powers and responsibilities in the sphere of foreign affairs
and therefore the declaration is yet another violation of the agreement which
the Palestinians freely signed.”
Gold also argued that the language of
the declaration did not define the territory of Palestine.
he told the prosecutor that there were competing claims regarding the
sovereignty over the territory and that the ICC would be injecting itself into a
territorial dispute by accepting the PA declaration. Israel, he pointed out, had
applied its law to east Jerusalem since 1967 and has not waived its claim to
change the 1967 boundaries, which, he added, were only armistice
On the other side, Quigley maintained that Palestine was a state
after the Palestine National Council declared it as such in 1988. Eighty-nine
states quickly recognized the state of Palestine and, in a UN General Assembly
resolution “acknowledging the proclamation of the State of Palestine,” 104
states voted in favor, 44 abstained and two – Israel and the US – voted
Meanwhile, Alain Pellet and Gowlland – in a joint paper – argued
that the ICC did not have to determine whether Palestine was a state according
to international law, but only whether it fulfilled the ICC criteria for making
“The idea,” they wrote, “is not for the court to rely on
a general and ‘ready made’ definition of the concept of state in international
law, but to adopt a functional approach allowing it to finally determine whether
the Palestinian declaration fulfills the conditions set out in Article 12,
Paragraph 3, enabling the court to exercise its statutory
The authors concluded that the request did fulfill these
Gold told The Jerusalem Post
that it would likely be “many
weeks” before Ocampo announced his decision on the PA request.
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