Palestinians follow-up unsuccessful UNSC bid by joining ICC
Jan 8, 2015
Update from AIJAC
January 8, 2105
Number 01/15 #01
As readers will be aware, a Jordanian-sponsored but Palestinian authored proposal to the UN Security Council failed to get the necessary 9 affirmative votes on Dec. 30 (the text of the Palestinian proposal – which demands an Israeli withdrawal to the pre-1967 armistice lines within three years regardless of whether or not peace is agreed – is here), and the Palestinian Authority followed up this failure by signing up “Palestine” as a member of the International Criminal Court (ICC), in an apparent effort to initiate or threaten to initiate war crimes claims against Israeli political and military leaders. This Update looks at these developments and their implications.
We begin with Israeli scholars Oded Eran and Robbie Sabel – diplomatic and legal experts respectively – analysing the text of the resolution, its legal effects and the politics of the decision to submit the resolution. They note that the resolution contradicted both the terms of the Oslo peace accords and Security Council resolution 242 – the basis for all Mideast peacemaking since 1967 – while attempting to legally require the claimed Palestinian “right of return” to Israel which has never been endorsed by any peace treaty or Security Council resolution. They also discuss the possible logic behind the Palestinian decision to submit the resolution when they did when it looks like they might have had a better chance of at least getting a majority vote (the US would still almost certainly have vetoed) if they had waited until 2015, given the changing membership of the UN Security Council. For their complete discussion, CLICK HERE.
Next up is a discussion by veteran American Middle East mediator Dennis Ross, printed in the New York Times, of why Europeans who think a Security Council resolution is a good way to advance a two-state resolution are making a serious mistake. He notes the history of Palestinians rejecting Israeli two-state offers, and that the Palestinians are in the grip of a narrative that “treats concessions to Israel as illegitimate” and portrays compromise as betrayal. He says resolutions which make demands only of Israel will never get Palestinian leaders to make the politically difficult decisions they need to make and “respond to proposals and accept resolutions that address Israeli needs and not just their own.” For this important article from an intimately knowledgeable source, CLICK HERE. There are similar arguments from fellow former American mediator Aaron David Miller and former US diplomat Jeff Robbins.
Finally, BICOM (the British-Israel Communications and Research Centre) has a very useful backgrounder on the Palestinian decision to sign up “Palestine” to the ICC. The piece looks at what the Palestinians have technically done, how it is likely to embitter relations between the two sides, and the considerable complexities and obstacles which make the use of the court to settle anything between Israel and the Palestinians unlikely in the near future. It also discusses the likelihood that the Palestinian leadership would also be subject to complaints and charges under the court’s provisions. For this backgrounder in full, CLICK HERE. Another good general discussion of the implications of the Palestinian move comes from David Makovsky of the Washington Institute for Near East Policy.
Readers may also be interested in:
- A report on the numerous Palestinian groups that rejected and denounced the PA’s UN resolution – because it recognised Israel and ostensibly sought a two-state resolution. More on why from Khaled Abu Toameh.
- Some details about how the US and Israel successfully lobbied to prevent the PA proposal getting the necessary nine affirmative Security Council votes.
- A look at recent Palestinian pronouncements on their “internationalisation” strategy.
- Editorials on the Palestinian UN moves from the Washington Post, and New York Daily News while the Wall Street Journal suggests US aid to the Palestinians should be rethought. More on this possibility here.
- More on the ways in which recent Palestinian moves violate the Oslo accords, from Israeli international law specialist Alan Baker.
- Additional looks at the complexities and difficulties of attempts to use the ICC against Israeli leaders – here, here, and here.
- A debunking of the myth that the Palestinian ICC move is a reaction to an Israeli refusal to negotiate.
- Fatah celebrates its anniversary with an image of a pile of skulls with Jewish stars on them.
- A Hamas leader reflects with some honesty and realism on Palestinian failures. More analysis on this here.
- Isi Leibler has two articles on the coming Israeli elections – one on the increasing volatility of the campaign and one on the need for the next government to alter the relationship between the Israeli state and its ultra-Orthodox minority.
- Some examples from the many stories and comments now appearing at AIJAC’s daily “Fresh AIR” blog:
- AIJAC’s statement welcoming Australia’s decision to vote against the Palestinian resolution at the UN last week.
- AIJAC’s statement on the horrific massacre at the Charlie Hebdo magazine in Paris yesterday.
Legal and Political Observations on the Defeated Palestinian-Jordanian Draft Resolution
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Stop Giving Palestinians a Pass
New York Times, January 4, 2015
Palestinians must be asked to respond to proposals that address Israeli needs and not just their own.
The president of the Palestinian Authority, Mahmoud Abbas, insists on using international institutions to pressure Israel, even after he was rebuffed in the United Nations Security Council, where he sought a resolution mandating Israeli withdrawal from the West Bank and East Jerusalem. Mr. Abbas has now announced that he will turn to the International Criminal Court — a move that will produce Palestinian charges and Israeli countercharges but not alter the reality on the ground.
A European official I met recently expressed sympathy for the Palestinians’ pursuit of a Security Council resolution. I responded by saying that if he favors Palestinian statehood, it’s time to stop giving the Palestinians a pass. It is time to make it costly for them to focus on symbols rather than substance.
Since 2000, there have been three serious negotiations that culminated in offers to resolve the Israeli-Palestinian conflict: Bill Clinton’s parameters in 2000, former Israeli Prime Minister Ehud Olmert’s offer in 2008, and Secretary of State John Kerry’s efforts last year. In each case, a proposal on all the core issues was made to Palestinian leaders and the answer was either “no” or no response. They determined that the cost of saying “yes,” or even of making a counteroffer that required concessions, was too high.
Palestinian political culture is rooted in a narrative of injustice; its anticolonialist bent and its deep sense of grievance treats concessions to Israel as illegitimate. Compromise is portrayed as betrayal, and negotiations — which are by definition about mutual concessions — will inevitably force any Palestinian leader to challenge his people by making a politically costly decision.
But going to the United Nations does no such thing. It puts pressure on Israel and requires nothing of the Palestinians. Resolutions are typically about what Israel must do and what Palestinians should get. If saying yes is costly and doing nothing isn’t, why should we expect the Palestinians to change course?
That’s why European leaders who fervently support Palestinian statehood must focus on how to raise the cost of saying no or not acting at all when there is an offer on the table. Palestinians care deeply about international support for their cause. If they knew they would be held accountable for being nonresponsive or rejecting a fair offer or resolution, it could well change their calculus.
Unfortunately, most Europeans are focused far more on Israeli behavior and want, at a minimum, to see Israel’s continuing settlement policy change.
But turning to the United Nations or the International Criminal Court during an Israeli election is counterproductive. It will be seen in Israel as a one-sided approach, and it will strengthen politicians who prefer the status quo. These candidates will argue that the deck is stacked against Israel and that the country needs leaders who will stand firm against unfair pressure.
Why not wait? If a new Israeli government after the elections is prepared to take a peace initiative and build settlements only on land that is likely to be part of Israel and not part of Palestine, there will be no need for a United Nations resolution.
If not, and the Europeans decide to pursue one, it must be balanced. It cannot simply address Palestinian needs by offering borders based on the 1967 lines with mutually agreed swaps and a capital in Arab East Jerusalem without offering something equally specific to Israel — namely, security arrangements that leave Israel able to defend itself by itself, phased withdrawal tied to the Palestinian Authority’s performance on security and governance, and a resolution of the Palestinian refugee issue that allows Israel to retain its Jewish character.
In all likelihood the Palestinians would reject such a resolution. Accepting it would require compromises that they refused in 2000, 2008 and 2014. There is, of course, no guarantee that the next Israeli government would accept such a resolution. But the Israelis are not the ones pushing for United Nations involvement. The Palestinians are. And if their approach is neither about two states nor peace, there ought to be a price for that.
Peace requires accountability on both sides. It’s fair to ask the Israelis to accept the basic elements that make peace possible — 1967 lines as well as land swaps and settlement building limited to the blocks. But isn’t it time to demand the equivalent from the Palestinians on two states for two peoples, and on Israeli security? Isn’t it time to ask the Palestinians to respond to proposals and accept resolutions that address Israeli needs and not just their own?
Dennis Ross is the counselor and William Davidson Distinguished Fellow at The Washington Institute.
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BICOM Briefing: Palestine joining the ICC
- Palestinian President Mahmoud Abbas has signed the Rome Statute on behalf of Palestine, which will give the ICC legal jurisdiction to investigate allegations of war crimes in the occupied territories.
- The extension of ICC jurisdiction to the Gaza Strip and West Bank may expose Palestinians to prosecutions as much as Israelis, for example over sustained rocket fire at Israeli civilian centres.
- A series of allegations and counter-allegations brought to the court threaten to further embitter relations between the parties and create barriers to a future negotiated agreement, as well as miring the court in politically motivated cases.
- For these reasons the US has strongly opposed the move, and in the past the UK has also called on the Palestinians not to take such action.
What have the Palestinians done?
- In the wake of the failure of the Palestinian resolution at the Security Council, President Mahmoud Abbas has signed the Rome Statute on behalf of the State of Palestine. Palestine will likely become a full member of the court after 60 days. This will then give the International Criminal Court jurisdiction over the territory of the State of Palestine and Palestinian nationals.
- Abbas declared that their intention was not just to join the court but to bring cases against Israel, though he did not specify on precisely what matters and when. Third parties would also be able to bring accusations to the court of crimes committed in the territory of Palestine.
What are the diplomatic implications?
- However, alleged crimes by Palestinians would also be subject to the jurisdiction of the court. Palestinian accession to the ICC could therefore lead to politically motivated allegations and counter-allegations which would further embitter relations between the parties and side-line negotiations indefinitely. This would also mire the court itself in political controversy.
- Israel has threatened to respond to the Palestinian move but as yet no decisions have been taken. In the past Israel has responded to unilateral Palestinian moves by temporarily suspending the transfer of tax revenues and by announcing new settlement plans. The US Congress may also respond by withholding financial aid to the Palestinians.
- The US has denounced Palestinian accession to the Rome Statute, with a State Department statement saying, We are deeply troubled by todays Palestinian action regarding the ICC, and calling it an escalatory step which badly damages the atmosphere with the very people with whom they ultimately need to make peace.
- In the past, the UK has also made it clear it was opposed to Palestinian accession to the ICC, or feared it could further undermine the possibility of a negotiated peace.
- Israelis also point out that all the Palestinian unilateral attempts to gain recognition as a state or accede to international treaties are a clear breach of the Oslo Accords. The 1995 Interim Agreement between Israel and the PLO, of which the European Union is one of the witnesses, established that: Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations.
How will the ICC view the Israeli-Palestinian arena?
- As a result of Palestine being accorded the status of a non-member state by the UN General Assembly in 2012, the ICC Prosecutors Office has indicated that Palestine can join the Rome statute. The 2012 UN resolution affirmed the right of the Palestinian people to self-determination in the Palestinian territory occupied since 1967, i.e. the Gaza Strip, East Jerusalem and the West Bank.
- The ICC does not have jurisdiction over crimes in Israel because Israel has not ratified and acceded to the Rome Statute, though crimes committed by Palestinian nationals inside Israel may be covered.
- According to 2014 ruling relating to the 2010 Mavi Marmara incident, the ICC regards the Gaza Strip as occupied territory, despite Israels 2005 withdrawal, placing additional obligations on Israel as an occupying power towards the civilian population.
What kind of cases might be considered?
- The court would not consider small scale incidents, since the court only addresses cases which it considers of sufficient gravity to warrant its attention. For example, the ICC rejected a case brought by the Comoros relating to the 2010 Mavi Marmara incident for this reason.
- The court cannot consider cases relating to events prior to its establishment in July 2002. It is unclear whether the court would consider matters that arose before Palestine was recognised as a state by the UN General Assembly at the end of 2012.
- If allegations are brought relating to Operation Protective Edge in the Gaza Strip in 2014, they would likely meet the threshold with respect to gravity. The UN Human Rights Council has commissioned an inquiry led by Professor William Schabbas into Operation Protective Edge which is expected to issue a report in March, and could provide the basis for allegations being brought to the court.
- Another issue which could be investigated is Israeli settlement policy, which the Palestinians claim breaches international laws of armed conflict. However, the court has discretion over whether or not to investigate and it is in question whether it would want to address so politically contentious a question.
Would the courts jurisdiction be limited by complementarity?
- A key issue for the court would be whether Israels own judicial authorities had competently dealt with accusations of war crimes. The ICCs jurisdiction is limited by the issue of complementarity, which means that the court will only take action where no other competent legal authority has done so.
- Israel has made public that it is holding internal investigations into the conduct of its forces relating to specific incidences during Operation Protective Edge. If the ICC prosecutor is satisfied with these investigations, then the ICC will not intervene.
- In February 2013 the Turkel Commission (an Israeli public commission to examine the Mavi Marmara incident of 31 May 2010) issued its second report, on Israels Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law. The commission was chaired by former Israel Supreme Court Justice Jacob Turkel and included Lord David Trimble as one of two independent observers. Lord Trimble wrote in a letter accompanying the report, that whilst there was room for improvement, taken as a whole, Israeli law and practice will stand comparison with the best in the world.
- However, the ICC Prosecutor, Fatou Bensouda, would have to make her own determination as to whether Israeli investigations into the issues brought before the court were sufficient.
How might ICC jurisdiction put Palestinians on trial?
- An Israeli NGO, Shurat Hadin Israel Law Center has already requested the ICC investigate Palestinian President Mahmoud Abbas for his responsibility for rocket fire by armed groups affiliated to his Fatah faction during Operation Protective Edge. They brought the allegations on the basis that Abbas has Jordanian citizenship, and Jordan is a signatory of the Rome Statute.
- Should the Palestinians attempt to bring a case against Israel, and should the court decide to investigate, it will also have to investigate the actions of all parties, both Israelis and Palestinians. Palestinian actions, such as the large scale indiscriminate firing of rockets from the Gaza Strip at Israeli civilian population centres would likely give grounds for investigation as a war crime.
- This has been acknowledged publicly by Palestinian representative to the UN Human Rights Council, Ambassador Ibrahim Khraishi, speaking on Palestinian Authority TV on 9 July. He said the rockets fired from Gaza toward Israel are each and every one a crime against humanity whether it hits or misses, because it is directed at civilian targets. While he argued that settlements were also a crime against humanity, he challenged the idea that ICC prosecutions would be a one-way street, and said: Many of our people in Gaza appeared on TV and said that the Israelis warned them to evacuate their homes before the bombardment. In such a case, if someone is killed, the law considers it a mistake rather than an intentional killing because [the Israelis] followed the legal procedures. As for the missiles launched from our side, we never warn anyone about where these missiles are about to fall or about the operations we carry out. He concluded with a plea: people should know more before they talk emotionally about appealing to the ICC.