IJCentral: International Justice Central

This past year has been highlighted by drastic political changes across the Arab world and has seen developments in the engagement and prospects of the International Criminal Court (ICC) in the Middle East and North Africa region. Shortly after its toppling of former authoritarian president, Ben Ali, Tunisia acceded to the Rome Statute, making it a state party to the ICC. Libya is not a state party to the ICC, however, after being referred to the Court by the U.N. Security Council, Libya is now one of the ICC’s seven situation countries. So far, the Office of the Prosecutor has requested arrest warrants for Colonel Qaddafi (prior to his death), Qaddafi’s son, Saif al-Islam, as well as the former head of Military Intelligence, Abdullah Al-Senussi. They have been charged with crimes against humanity. While the ICC has been quick to act on certain cases of human rights abuses in the MENA, it has stalled on other issues.

One main issue facing not just the ICC but other international organizations, especially in the past few months, concerns reaching a consensus on Palestinian statehood. After the 2008-2009 humanitarian crisis in Gaza, the Palestinian National Authority filed a declaration at the International Criminal Court (ICC) accepting the ICC’s jurisdiction in the territory of Palestine. Three years later, no clear response has been made on whether Palestine meets the statutory requirements for the ICC to accept jurisdiction there. But the decision for denominating Palestine as a state does not just entail the Palestinian people’s right to self-determination, or a nationalistic struggle for the reclamation of rights to land after more than sixty years. Rather, it entails establishing a system by which to hold the Israeli government accountable for certain crimes it has committed against the Palestinian people on Palestinian territory, as well as holding Hamas accountable for crimes it has committed against Israelis.

Pending: Palestinian Statehood: What can the ICC do for Palestine?

On January 22, 2009, the Office of the Prosecutor (OTP) of the International Criminal Court received an official communication from the Minister of Justice of the Palestinian Authority (PA), Ali Kashan. He placed a declaration with the Registrar under Article 12(3) of the Rome Statute, which allows States not party to the Statute to accept the Court’s jurisdiction. While the PA’s declaration made no mention of the war in Gaza, which took place between December 2008, and January 2009, the request for ICC jurisdiction immediately followed it. On May 3, 2010, the OTP published a “Summary of Submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements”. This was a compilation of different opinions regarding the issue, both for and against jurisdiction. One such opinion comes from John Quigley, who states, “If Palestine is not a state, then there is no state that has the capacity to grant the ICC jurisdiction in Gaza. Gaza would be a virtual dead zone from the perspective of the ICC. The only remaining potential bases of jurisdiction would be the nationality of a particular offender, or a referral by the UN Security Council.” The OTP has yet to make its own decision on the issue. This evaluation by the Office would also determine whether crimes within the Court’s jurisdiction have been committed and whether there are national proceedings in relation to the alleged crimes.

In a recent lecture held in New York, Richard Falk, Professor of International Law at Princeton University, also having served as United Nations Human Rights Inquiry Commissioner for the Palestinian territories and as the United Nations Special Rapporteur on Palestinian human rights, spoke of Israeli impunity in regards to international law and the consequences it would face were Palestine to be recognized as a state. The mission for Palestinian statehood is inconvenient for Israel not because it is a unilateral action and, as it states, a digression from negotiations and the “peace process,” but because every step closer to Palestinian statehood is a step closer to holding the Israeli government accountable for crimes committed against the Palestinian people, such as the 2008-2009 incident in Gaza. The main peace settlements that have been put in place in the Palestinian-Israeli conflict have been interim agreements largely characterized by the postponement of any substantive steps toward a Palestinian state and which allow for Israel to respond with alterations of the geographic boundaries, such as creating settlements in East Jerusalem and the West Bank.

With Israeli ratification of the Rome Statute out of the question, as such action would only cause the Israeli government to hold itself accountable for its own actions, it is Palestinian ratification that would hold the Israeli government responsible for crimes against humanity committed against the Palestinian people since the establishment of the court in July 1, 2002. However, in order to investigate crimes committed in Palestinian territories, the ICC must first determine whether it holds state status. As seen in other international organizations, the debate over the recognition of a Palestinian state in Gaza and the West Bank is splitting countries based on their geopolitical interests. The U.S., backing Israel, vetoed the vote at the Security Council. Israel’s impunity with regards to international law, which Professor Falk spoke of, would be altered with the recognition of a Palestinian state, as only states can give consent to ICC jurisdiction over acts committed in their territory, and Palestine, once having ratified the Rome statute as a state, would be able to file a complaint for certain cases of humanitarian violations that Israel has committed on Palestinian soil.

The Prisoner Swap and Moving Forward

Israel and the Palestinian Authority have recently completed a prisoner swap of 1027 Palestinian prisoners for the Israeli soldier Gilad Shalit, held captive by Hamas in Gaza since 2006. According to Human Rights Watch, Israel linked its aerial bombing of Gaza’s sole electricity power station on June 28, 2006, to Shalit’s capture two days earlier and later prevented full repairs to the station. Due to the blockade, the power station’s reduced capacity caused citizens of Gaza to experience an average of eight hours of blackouts each day. Joe Stork, deputy Middle East director at Human Rights Watch, states that “Gaza’s civilians should no longer suffer under Israel’s punitive blockade, and Hamas should end abuses of detainees, whether Israeli or Palestinian.” At the same time, along with fostering mutual respect for human rights, punitive measures put in place would hold perpetrators on both sides accountable and allow for a more effective system of justice.

This past year in the Arab world has seen a striking series of civilian uprising against authoritarian governments. These regional changes have opened up several opportunities for justice seeking and for democratic transition. As the revolutions continue to unfold in Egypt, Libya, Syria, Yemen and Bahrain, it is important not to neglect citizens of regions such as Iraq and Palestine, facing humanitarian crises not just at the hands of their heads of states, but also at the hands of foreign powers. According to the Coalition for the ICC, Palestinian NGOs meeting last year decided that the OTP has compiled sufficient information and arguments and thus should move to the decision phase, in accordance with Article 15(3), to request for authorization of an investigation. With the drastically changing power dynamics in the region, we can only expect for there to be transformations in how citizens of the region respond to international law mechanisms and hope that this is reciprocated in how international institutions respond to them.

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