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Deterring War Crimes

Palestine and the ICC

by JOHN V. WHITBECK

An article published on April 4 by the leading Israeli newspaper Ha’aretz has reported that “President Mahmoud Abbas is to suspend all unilateral measures vis-à-vis the United Nations agencies to give U.S. Secretary of State John Kerry time to jump-start a new round of Israeli-Palestinian talks” and that “the Palestinians have also decided to put off applying to the International Criminal Court in The Hague to sign the Rome Statute and thus obtain standing in the court as a state.”

Particularly after last month’s stunning public demonstration of President Barack Obama’s lack of respect for Palestine and the Palestinian people – characterized by Uri Avnery, Israel’s most venerable and distinguished peace activist, as “spitting in the face of the entire Palestinian people” – this report, if accurate, is profoundly disheartening.

During a public discussion held at the Académie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC.

During the question time, she was asked the following question: “If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved – essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote.

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

Her response on the retroactivity issue, while contrary to widespread Palestinian expectations, could actually be good news for Palestine, since it should minimize (if not totally eliminate) the “threat” of Israeli accountability perceived, principally in Western eyes, as being posed by Palestine’s membership in the ICC.

If the ICC would have jurisdiction only over FUTURE war crimes – which should, at least to some degree, discourage the commission of NEW war crimes – who (other than Israel) could argue against Palestinian membership with a straight face? Even the U.S. and U.K. governments should then find it embarrassing to oppose Palestinian membership, since doing so would, effectively, require arguing that Israel should be free to commit NEW war crimes without any concern as to potential accountability. (In any event, lacking vetoes in this instance, they could not prevent Palestinian membership.)

Furthermore, it should be borne in mind that possession of ICC membership does not necessarily entail seeking prosecutions any more than possession of nuclear weapons necessarily entails using them. In both cases, the primary motivation and virtue of club membership is deterrence.

If the Ha’aretz report is accurate, friends of Palestine may legitimately start to wonder why the Palestinian leadership in Ramallah bothered to go to the UN General Assembly on November 29 if it did not intend to follow up and build on its triumph in any useful way – most obviously by seeking to balance its huge disadvantages in the realms of power politics and brute force with its huge advantages under international law – and if it remains content to leave the fate of the Palestinian people and cause in the far from benevolent hands of the U.S. government.

John V. Whitbeck is an international lawyer who has advised the Palestinian negotiating team in negotiations with Israel.