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Friday 19 December  
Lauren Comiteau's picture
The Hague, Netherlands
The Hague, Netherlands

Palestinians and ICC: What’s Next?

Published on : 4 December 2012 - 9:58am | By Lauren Comiteau (Photo: ANP)
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With the United Nations (UN) General Assembly voting overwhelmingly last week to recognize Palestine as a “non-member observer state,” legal institutions once closed to the territories may soon be within its reach, including the International Criminal Court (ICC) in The Hague.

“You need ‘state’ status to open doors,” says international humanitarian lawyer Liesbeth Zegveld. “Statehood is an important pillar in international law. For Palestinian rights, this recognition is a positive step forward.”

Long process
Indeed in 2009, representatives of the Palestinian National Authority submitted a declaration to the ICC saying it recognised its authority retroactively to the start of the court on July 1, 2002. The court is not allowed to investigate crimes committed before that date.

But it took until this past spring, a full three years and many legal submissions and meetings later, for the then ICC prosecutor Luis Moreno-Ocampo to defer the situation to the UN and the member states of the court, saying he lacked the authority to rule if Palestine was a state and thereby a candidate for the ICC. 

International lawyers
Zegveld was one of about 20 international lawyers who in August sent a petition to ICC prosecutors asking them to seek the help of the court’s member states to consider the Palestinian request or refer the matter to the General Assembly. 

“That is now a moot point,” says Zegveld. “Because Palestine has state status by a clear majority of the General Assembly, it is sufficient for the ICC to re-consider the Palestinians’ request  regarding crimes committed during” the recent wars.

Legal implications
ICC prosecutors say they “will consider the legal implications of this resolution.” A state doesn’t have to be a UN member to become party to the court.

Back in September, current ICC prosecutor Fatou Bensouda said that just such a General Assembly vote could make the difference for the Palestinians. "What we have also done is to leave the door open and to say that if Palestine is able to pass that (statehood) hurdle at the General Assembly, then we will revisit what the ICC can do." 

The ICC was established to hold individuals accountable for the worst crimes committed by those in power: crimes against humanity, war crimes, aggression and genocide. Under its statute, specific crimes resulting from Israel’s occupation of Gaza and the West Bank could include apartheid, persecution, forced displacement, and extensive destruction and appropriation of property not justified by military necessity.

121 countries are members of the court and therefore fall under its jurisdiction. But Israel—and other big players like Russia, China and the United States—are not among them.

But if Palestine is able to become a state party to the ICC, the court will have jurisdiction over crimes committed on its territory—even if Israel isn’t a member. Similarly, any Palestinian could be held liable for crimes committed anywhere in the world, even in countries, such as Israel, that aren’t party to the court.

Prosecutors will now consider whether the Palestinian Authority’s 2009 instrument of succession is valid to start the process of it becoming a court member or if the Palestinian authorities need to file a new one.

If Palestine does become a party to the court, it will still have to be determined just how far back its jurisdiction will go, with hearings before judges on the issue likely. Palestinians are trying to hold Israeli officials accountable for actions in the 2008-2009 Gaza war against Hamas.

"Legal or diplomatic intifada"
The Palestinians have said they long planned to use non-membership statehood at the UN as a way to enter the ICC. One Palestinian negotiator, in talks with the International Crisis Group, called the strategy a "legal or diplomatic intifada" against Israel.

The International Court of Justice (ICJ), the UN’s highest judicial body that rules on disputes between states, ruled eight years ago that the Israeli-built barrier in the Palestinian territories is illegal, saying in an advisory opinion that construction should be halted and Israel should pay reparations for any damages.

While building settlements is not in itself illegal, it is if criminal means are used to achieve them, such as the destruction of property or the transferring of large numbers of people. In reaction to the UN General Assembly’s vote, Israel announced the following day that it would build 3,000 additional homes on occupied land near East Jerusalem, a move that was condemned by the United Nations, the US and the UK as threatening any hopes for a lasting peace.


Vera Gottlieb 5 December 2012 - 5:55pm

Anonymous... How many more years are Zionists going to get away with murdering and stealing and chicaneries? And how many more years is the world going to turn a blind eye for fear of being branded anti-Semitic? The Zionists' intentions have been 'ethnic cleansing' from day one. Colour of skin has most certainly something to do with this.

Anonymous 6 December 2012 - 4:55pm

As long it takes for the world to stop killing them and blaming them for for "stealing and chicaneries. You spout the same hate and you can see it in your response and especially "Zionists' intentions have been 'ethnic cleansing' from day one." Your comments makes you look like an anti-semitic, person.

Vera Gottlieb 11 December 2012 - 10:09am / Switzerland
Anonymous 27 December 2012 - 11:01pm
Vera Gottlieb 6 December 2012 - 6:17pm / Switzerland This might be of interest to you even if it does come from Iran - but written by an American.

user avatar
knirb 8 December 2012 - 3:23am

You can bet that anything that comes from an obscure American anti semite via IRIB (Islamic Republic of Iran Broadcasting, which owns PRESS TV), is a load of propaganda. I don't know why you even bothered using this link to try (and fail) to make a point. It is clearly a commentary from the lunatic fringe.

Vera Gottlieb 6 December 2012 - 5:45pm / Switzerland

Half of my family went up in smoke in concentration camps. But yes, I most definitely am ANTI ZIONIST - totally ashamed of their Nazi-style behaviour and one day there will be a price to pay for this. UN Resolution 181 voted for PARTITION and not for ATTRITION. But of course, the Zionists will demonize any truth that doesn't fit the pack of lies it continues to spread but...the world is starting to get wise to this and it is about time.

Anonymous 6 December 2012 - 10:09pm

UN has no more right to "partition" Israel than it does Switzerland, Germany or any other country. History is documented proof that the land of Israel belongs to the Jews. There has never been a Palestinian State and those who call themselves Palestinians are from Jordan and elsewhere. Let the U.N. partition Jordan or Syria. Maybe Turkey it's country and give back the land to the Kurdish people.

Vera Gottlieb 7 December 2012 - 6:15pm / Switzerland

And the UN had then no right to allow the creation of israel. It might have belonged to the Jews, but they left and even if they had stayed - still no excuse for the inhumane, shameful and Nazi-style treatment of Palestinians. Oh, I am so sick and tired of the constant whining of the Jews! Other cultures have also suffered yet we don't hear them whining at every chance they get nor blackmailing other countries/people in order to get away with murder. Jews have always carried a chip on their shoulder when it comes to non-Caucasian people.

Anonymous 8 December 2012 - 2:17am

For very good reasons and I can name you at least six million reasons.

Vera Gottlieb 10 December 2012 - 5:42pm / Switzerland

How conveniently it is forgotten that it wasn't Palestinians who murdered 6 million Jews! But of course, this argument would not fit the pack of Zionist lies.

Anonymous 11 December 2012 - 4:34am

Zionist lies are only lies to those who are unable to accept the truth.

Robert Rowley 4 December 2012 - 6:09pm / United States

Palestinians need to remember that should they join the ICC they have a LOT more to lose than does Israel. Something everyone keeps overlooking is that Israel is NOT a signatory to the Rome Accords, is NOT a member of the ICC and the ICC does NOT have any jurisdiction over either Israel or it's people. If the Palestinians join the ICC then THEY MUST answer to any finding of the court. Even though Israel is not a member of the ICC they can still bring charges against ICC members. Have the Palestinians anything to worry about? DEFINITELY!

Adrián 4 January 2013 - 6:05pm

"Palestinians need to remember that should they join the ICC they have a LOT more to lose than does Israel."
What exactly? they don't have anything else to lose.

Vera Gottlieb 4 December 2012 - 5:36pm / Switzerland

It is about time that israel is brought to justice.

Anonymous 5 December 2012 - 4:39am

Are they going to get some of that good, old German justice like they did during the 1930s?

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