Some legal truths about the Palestinian ICC exercise

The court is new and has yet to establish itself as a viable and impartial juridical body.

The entrance of the International Criminal Court (ICC) is seen in The Hague (photo credit: REUTERS)
The entrance of the International Criminal Court (ICC) is seen in The Hague
(photo credit: REUTERS)
From the tone and content of reports in the Israeli press, including The Jerusalem Post, following the recent spate of Palestinian threats and actions regarding the International Criminal Court, it is no wonder that the Israeli leadership and general public appear to be confused and even fearful.
This is exactly the point of Mahmoud Abbas’s exercise – to instill fear and to awaken doubt in the minds of Israelis as to the legitimacy of Israel’s actions, and to utilize what he perceives as a favorable international atmosphere in order to harm Israel internationally.
Beyond this hype, however, there are some very basic legal truths that seem to have escaped the notice of Mr. Abbas and his cohorts in their eagerness to malign Israel and its political and military leaders.
• The ICC is open to states only, not to entities that may claim to be states but do not have the requisite criteria for statehood required by international law.
• The Palestinians’ reliance on the 2012 General Assembly Palestinian upgrade resolution, which granted them “non-member-observer- state” status, and the procedural acts of acceptance of this by the UN secretary- general and the ICC prosecutor, cannot serve as legal grounds for their acceptance by the court. The UN General Assembly is a political, not a legal body. It cannot create statehood. While that resolution may indeed have supported their aims for statehood, it did not create a “State of Palestine.”
• The fact that the ICC prosecutor accepted the Palestinian petition and opened a “preliminary examination of the situation in Palestine” is a procedural measure in order to check whether there exists any grounds to proceed to an investigation.
Preliminary examinations have been opened by the prosecutor against the UK, the US and others following complaints against them, and these have not led to formal investigations and a trial which, if it takes place at all, could take years.
But the judges of the court, not the prosecutor, will ultimately have to determine if the Palestinian petition is valid and if the court can, pursuant to its statute, deal with the matter.
Therefore the assumption by the Israeli media that Israeli leaders will be targeted remains unlikely to be realized.
• By the same token, the UN secretary-general, relying on the same 2012 General Assembly Palestinian upgrade resolution and accepting the Palestinian notification of accession to the ICC statute and to other international treaties, acted in contravention of the UN’s basic guidelines for accepting depositary notifications from entities that are not states. Hence the legal validity of the secretary-general’s action is questionable.
• In this context, as reported by The Washington Post, the US State Department spokesman voiced the same viewpoint on January 18, 2015, in stressing that “We do not believe that Palestine is a state, and therefore we do not believe that it is eligible to join the ICC.”
• Even if, by dint of political manipulation and pressure, the ICC, against its own better interests and at variance with its statute, finds itself having to investigate the situation in our area, the principle of “complementarity,” which is an integral component of the ICC Statute, prevents the court from extending jurisdiction to actions by Israel’s military officers and political leaders.
This is because Israel’s civilian and military legal systems, based as they are on norms of international humanitarian law and the moral principles of Judaism, require thorough investigation of any alleged violation, and if necessary, legal proceedings.
• By attempting to impose the ICC’s jurisdiction over what they claim to be Palestinian territory, and in light of their lack of any investigative machinery of their own, the Palestinians are in fact opening themselves up to serious war crimes investigations against their own political and military leaders.
This follows their internationally acknowledged, massive and indiscriminate rocket attacks on Israel’s civilian population centers, their cruel use of civilian structures including hospitals, schools, mosques and private homes, as well as individual civilians and children as human shields, and their admitted use of terrorism against Israel.
• The fact that the Palestinian Authority unified with Hamas would render Mr. Abbas himself, his senior advisers and leaders and the terror commanders of Hamas, open to investigation and possible prosecution, were the ICC to establish its jurisdiction.
Their attempt to mislead the ICC and the international community through accusing Israel of war crimes can only be seen as cynical, manipulative and even insulting, especially in light of the fact that Israel acted to defend its people against the massive Hamas bombardments.
• The ICC is a judicial body, independent of the UN, established following a vision born after the Holocaust, and advanced by Jews and Israelis, among others, to prevent situations in which the world’s most serious criminals, responsible for the gravest and most reprehensible crimes, would go unpunished.
The court is new and has yet to establish itself as a viable and impartial juridical body.
The last thing this court needs for its juridical credibility and standing is to be labeled as another “Israel- bashing body” like the UN Human Rights Council and the UN General Assembly.
• The attempts by the Palestinian leadership to subvert the ICC and turn it into its own back-yard court for hounding Israelis cannot but backfire.
It is to be assumed that the responsible nations that worked so hard and so long to establish the ICC will not permit its demise by irresponsible and malicious Palestinian partisan measures.
It is to be hoped that the Israeli leadership, media and public will not be misled by this Palestinian exercise.
Alan Baker is an advocate, retired ambassador and director of The Institute for Contemporary Affairs at The Jerusalem Center for Public Affairs.