Last month, the International Criminal Court (ICC) held informal consultations in The Hague with 40 Palestinian NGOs. Michael Kearney, research fellow at the London School of Economics’ Law Department, was present as a representative of the NGO Al-Haq.

By Marijntje Lazet

What was the main discussion point between the ICC and the Palestinian side?
Last year, the Palestinian Minister for Justice submitted a declaration under Article 12 of the Rome Statute. This is a process which allows for a state that is not a party to the Rome Statute to engage with the court’s process, and to transfer jurisdiction.

The main question is whether you can consider Palestine to be a state. I was making an argument that from the perspective of international law it is very difficult to determine by objective criteria what constitutes a state. Essentially it is a political process. Palestine has been recognised by around a hundred states, but it has not been recognised by the United States or the European states, and is not a full member of the United Nations.

Could you briefly explain the main points of the Palestine Declaration to the ICC?
The declaration on behalf of the Government of Palestine seeks to transfer jurisdiction over crimes in the Rome Statute - war crimes, crimes against humanity and genocide - on the territory of Palestine to the ICC.

The key to the argument is that the court can take a functional approach.This is something that has happened at other tribunals and other international institutions. If it is de facto practicing and exercising the powers of a body like a state, then it should be considered as such for legal questions.

When is the court going to make a decision?
There has been no indication as to when we are going to get an answer.

The consequences of making any decision can indeed be traumatic for either side. If Palestine is accepted, the Israelis will be very concerned. If the Palestinians are rejected it will be the final nail in the coffin, because the Palestinian people have consistently felt abandoned by international law and the international community.

What could be the consequences if the ICC were to accept the declaration?
If the court prosecutor was to begin investigating the war crimes in the area, there is already an overwhelming amount of material, such as the Goldstone report (a UN report in 2009 which accuses Israel and Hamas of war crimes and possibly crimes against humanity).

The construction of occupied settlements in the West Bank is also a war crime. Settlement construction is an official government policy which the top Israeli military and political leaders ascribe to and take responsibility for. They would all be liable to prosecution.

Palestinian, Israeli and international NGOs have been operating on the ground for decades, and the amount and quality of evidence that has been compiled is of a very high standard. If an investigation were to be initiated with respect to Palestine, it might be a lot easier than investigations that we have seen in the former Yugoslavia or currently in Sudan and Uganda. Of course the difficulty will be in prosecuting senior Israeli political leaders or military commanders because of the political consequences.

What are your concerns for the near future?
The Palestinian authority has not been consistent in promoting the ICC in international fora because of political pressure on the part of the US, European states and Israel.

I don’t know if the Palestinians have done all they can in submitting the necessary documents. This could be a problem for any Prosecutor to make a decision which is politically controversial. The people who have asked you to make a decision need to stand strongly behind their request.

The Palestinian authority need to be put under pressure by NGOs and the civil society in Palestine in order to force it to continue to develop an engagement with the court. They need to submit the necessary documents and show public support for the ICC.

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