ICC Prosecutor doubles down that Palestine is a state

Decision brings alleged Israeli war crimes battle closer

The Palestinian flag flies after being raised by Palestinian President Mahmoud Abbas in a ceremony at the United Nations General Assembly. (photo credit: REUTERS)
The Palestinian flag flies after being raised by Palestinian President Mahmoud Abbas in a ceremony at the United Nations General Assembly.
(photo credit: REUTERS)
International Criminal Court Prosecutor Fatou Bensouda on Thursday doubled down on her position that ‘Palestine’ is a state, bringing closer an alleged war-crimes legal battle with Israel.
Rather than expressing a toned-down approach to the ongoing battle following dozens of legal briefs being filed in favor of Israel by key European countries and others, Bensouda appeared to brush off the opposing views and embraced the dozens of briefs filed in favor of the Palestinians.
Regarding objections that her war-crimes probe would harm the peace process, Bensouda implied that the process is presently nonfunctional, and in any event, such an issue would only come up later when the ICC Pretrial Chamber considers whether the case is consistent with pursuing the “interests of justice.”
How the three ICC Pretrial Chamber judges rule, now that Bensouda has filed her highly influential position, will have fateful consequences for Israel on a legal, diplomatic and public-relations level.
Responding on behalf of an intergovernmental committee on the ICC, Energy Minister Yuval Steinitz said: “The legal brief of the ICC Prosecutor continues to adopt her clearly anti-Israel policy based on being influenced from the Organization of the Islamic Conference and the BDS movement.”
He accused Bensouda of “ignoring… the opinions of some of the greatest international-law jurists in the world” in order to “besmirch Israel’s name.”
Furthermore, Steinitz said she was “reinventing international law and creating a Palestinian state” before it came about properly through peace negotiations.
The case would very likely not proceed if the ICC does not accept ‘Palestine’ as a state, since most cases start only if referred by a state.
On December 20, Bensouda ruled that Palestine is a state and that there was sufficient evidence that both Israel and Hamas committed war crimes, warranting her opening a full criminal investigation.
However, she also asked the ICC Pretrial Chamber to endorse her view. Since then, about 50 countries, NGOs and renowned world experts have filed positions with the ICC Pretrial Chamber for and against Israel.
The Israeli government did not respond to Bensouda’s December 20 decision, resting instead on two legal briefs it filed hours before Bensouda’s announcement and on the support of dozens of allied countries and NGOs.
Israel does not want to appear to have accepted ICC jurisdiction since it is not a member of the Rome Statute.
In contrast, the Palestinian Authority has published statements calling on the ICC to disregard any countries objecting to the idea of Palestinian statehood.
Among the countries that have filed legal briefs to support Israel are the Czech Republic, Austria, Germany, Australia, Hungary, Brazil and Uganda.
Germany is most relevant because it is one of the largest funders of the ICC, second only to England, and the British are already in a direct fight with the ICC over a potential case against them.
The Trump administration has rescinded Bensouda’s visa for traveling to the US and is threatening other measures, potentially including sanctions, against ICC personnel due to its position on both the Israel case and an unrelated case against the US for alleged torture of detainees in Afghanistan.
Among other supporters of Israel who have filed briefs are the Israel Bar Association, the Lawfare Project, the Institute for NGO Research (NGO Monitor), Palestinian Media Watch, the Jerusalem Center for Public Affairs, Shurat Hadin and leading jurists, including former Canadian justice minister Irwin Cotler.
The Arab League and the Organization of the Islamic Conference, which represent about 60 countries, have supported the Palestinian position.
A number of other leading jurists, many who were once UN officials who criticized Israel, such as William Schabas and Richard Falk, also support the Palestinian side.
After all of the approximately 50 briefs, the core of Bensouda’s position was unwavering and puts Israel back on the hot seat.
A major argument Bensouda made was that the State of Palestine was accepted into the ICC Assembly of State Parties in 2015 without significant objection by the ICC members.
While there were public statements by Israel and some others against this, Bensouda said no members properly legally challenged Palestine before the ICC judges at the time, which is a form of legal acceptance.
Curiously, she did admit that Canada filed a formal objection, but she said the technical form of objection was incorrect.
Furthermore, three other countries, the Netherlands, Germany and England, had given speeches against Palestine joining, Bensouda said, adding that such speeches fell far short of a proper legal challenge.
It was unclear whether the ICC Pretrial Chamber has the power to retroactively kick Palestine out of the Assembly of State Parties five years after it has been participating and where Palestinians have even held offices, she said.
Bensouda acknowledged that the process of declaring a state is an inherently political process that is best left to being decided by states themselves.
However, she said the key factor in state practice was how many countries accepted Palestine as a state (more than 130) and not that Palestine is still short of being a full member state of the UN.
Bensouda attacked the idea that Palestine could have some, but not other, traits of being a state, even though this appears to be the status carved out for it by the UN as a nonmember state.
Taking on some of Israel’s strongest arguments about the Palestinians lacking sovereign territory or borders, she said a progressive trend in interpreting sovereignty for a weak party like the Palestinians could define sovereignty simply by peoplehood and the right to self-determination.
Regarding the Oslo Accords, which restrict the Palestinians from declaring statehood absent a deal between the parties, she wrote: “State practice demonstrates that Oslo provisions derogating from the right of the Palestinian people to self-determination do not apply.”
A major problem Israel may face is that Bensouda is not acting alone even within the ICC system.
As Bensouda pointed out, the ICC is regulated by the Assembly of State Parties, which has accepted Palestine and repeatedly has accepted the appointment of Palestinian diplomats to key positions.
Some compromise solutions have been floated, such as the ICC judges only ruling on what Palestine’s borders are, but none that take a position on statehood per se, leaving that decision to the ICC Prosecutor.
Another floated idea has been to delay ruling on statehood issues until a later point in the trial, as suggested by the ICC Public Defender’s Office.
Bensouda rejected this compromise, saying it would make the litigation more cumbersome.
Individual defendants could still bring jurisdictional challenges at a later date, but the judges should decide the basic issue now, she said.
Israel is hopeful that it may have some luck with the three judges it drew: Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Alapini-Gansou of Benin.
Kovacs ruled for Israel in a different case. The other two ruled against Israel in that case. But some Israeli officials hope that since France has supported a Palestinian state through negotiations with Israel, Brichambaut may rule in its favor this time.
In response to Bensouda’s legal brief, NGO Monitor on Thursday said: “The Prosecutor’s response demonstrates that she is not interested in a fair judicial process, nor in upholding the law.”
“She completely ignores the overwhelming and decisive information provided to the Court by dozens of Middle East and legal experts as well as seven ICC Member States, proving that the Court has no jurisdiction in this matter,” NGO Monitor said.
Bensouda was due to file her final position on March 30, but it was delayed by a month due to the coronavirus outbreak.
The slow pace of the proceedings draws into question how deeply Bensouda will be able to personally delve into any criminal probe, given that her nine-year term ends in June 2021 and that the ICC Pretrial Chamber will likely roll into an extended appeal process.