FacebookTwitterGoogle+RedditEmail

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.

 

More articles by:

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

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

June 28, 2017
Diana Johnstone
Macron’s Mission: Save the European Union From Itself
Jordon Kraemer
The Cultural Anxiety of the White Middle Class
Vijay Prashad
Modi and Trump: When the Titans of Hate Politics Meet
Jonathan Cook
Israel’s Efforts to Hide Palestinians From View No Longer Fools Young American Jews
Ron Jacobs
Gonna’ Have to Face It, You’re Addicted to War
Jim Lobe – Giulia McDonnell Nieto Del Rio
Is Trump Blundering Into the Next Middle East War?
Radical Washtenaw
David Ware, Killed By Police: a Vindication
John W. Whitehead
The Age of No Privacy: the Surveillance State Shifts into High Gear
Robert Mejia, Kay Beckermann and Curtis Sullivan
The Racial Politics of the Left’s Political Nostalgia
Tom H. Hastings
Courting Each Other
Winslow Myers
“A Decent Respect for the Opinions of Mankind”
Leonard Peltier
The Struggle is Never for Nothing
Jonathan Latham
Illegal GE Bacteria Detected in an Animal Feed Supplement
Deborah James
State of Play in the WTO: Toward the 11th Ministerial in Argentina
Andrew Stewart
Health Care for All: Why I Occupied Sen. Sheldon Whitehouse’s Office
Binoy Kampmark
The European Commission, Google and Anti-Competition
Jesse Jackson
A Savage Health Care Bill
Jimmy Centeno
Cats and Meows in L.A.
June 27, 2017
Jim Kavanagh
California Scheming: Democrats Betray Single-Payer Again
Jonathan Cook
Hersh’s New Syria Revelations Buried From View
Edward Hunt
Excessive and Avoidable Harm in Yemen
Howard Lisnoff
The Death of Democracy Both Here and Abroad and All Those Colorful Sneakers
Gary Leupp
Immanuel Kant on Electoral Interference
Kenneth Surin
Theresa May and the Tories are in Freefall
Slavoj Zizek
Get the Left
Robert Fisk
Saudi Arabia Wants to Reduce Qatar to a Vassal State
Ralph Nader
Driverless Cars: Hype, Hubris and Distractions
Rima Najjar
Palestinians Are Seeking Justice in Jerusalem – Not an Abusive Life-Long Mate
Norman Solomon
Is ‘Russiagate’ Collapsing as a Political Strategy?
Binoy Kampmark
In the Twitter Building: Tech Incubators and Altering Perceptions
Dean Baker
Uber’s Repudiation is the Moment for the U.S. to Finally Start Regulating the So-called Sharing Economy
Rob Seimetz
What I Saw From The Law
George Wuerthner
The Causes of Forest Fires: Climate vs. Logging
June 26, 2017
William Hawes – Jason Holland
Lies That Capitalists Tell Us
Chairman Brandon Sazue
Out of the Shadow of Custer: Zinke Proves He’s No “Champion” of Indian Country With his Grizzly Lies
Patrick Cockburn
Grenfell Tower: the Tragic Price of the Rolled-Back Stat
Joseph Mangano
Tritium: Toxic Tip of the Nuclear Iceberg
Ray McGovern
Hersh’s Big Scoop: Bad Intel Behind Trump’s Syria Attack
Roy Eidelson
Heart of Darkness: Observations on a Torture Notebook
Geoff Beckman
Why Democrats Lose: the Case of Jon Ossoff
Matthew Stevenson
Travels Around Trump’s America
David Macaray
Law Enforcement’s Dirty Little Secret
Colin Todhunter
Future Shock: Imagining India
Yoav Litvin
Animals at the Roger Waters Concert
Binoy Kampmark
Pride in San Francisco
FacebookTwitterGoogle+RedditEmail