ICC: Can PA complain of crimes on 'Palestinian territory'?

Dore Gold, speaking for Israel at landmark session, says wrong decision would accelerate moves toward a unilateral ‘Palestine’.

By DAN IZENBERG

OCTOBER 21, 2010 05:00

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.

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 process.”

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.

The speakers 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, 2002.”

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 it.

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 negotiations.

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.

Furthermore, 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 lines.

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 against.

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 declaration.

“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 jurisdiction.”

The authors concluded that the request did fulfill these conditions.

Gold told The Jerusalem Post that it would likely be “many weeks” before Ocampo announced his decision on the PA request.