![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
The recent ruling of the International Criminal Court (ICC) affirming territorial jurisdiction over the West Bank, including East Jerusalem, and the Gaza Strip may at first appear to be a mere procedural decision outlining the court’s authority to investigate Israeli criminality. Upon closer scrutiny, however, it is clearly much more: an indirect, yet far-reaching vindication of Palestinian resistance and struggle in the ongoing “legitimacy war” with Israel. These legal proceedings have momentous potential implications for broader accountability efforts, which could be significant over time, even if attempts to prosecute Israeli perpetrators are ultimately frustrated. This legal event already sheds light on both the limitations of the court and the legal and geopolitical challenges it faces in cases where suspected perpetrators wield significant influence in international political arenas. As of now, the ICC has gained credibility precisely because it has the institutional courage to take on the architects of Israeli criminality.
Acknowledgment
The authors are indebted to Susan Power, head of legal research and advocacy at Al-Haq, for her helpful comments and feedback on this essay.
Notes
1 Although 123 countries are parties to the Rome Statute, the following states are not: United States, China, Russia, India, Indonesia, Turkey, Saudi Arabia, Israel, Egypt, and Iran. Of the permanent members of the Security Council, only France and the United Kingdom are parties.
2 Rome Statute of the International Criminal Court, 17 July 1998, 2187, U.N.T.S., 38544. The text of the Rome Statute was circulated as document A/CONF.183/ and entered into force on 1 July 2002. The text of the statue is available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.
3 It should be understood that “signature” does not obligate a state to comply with a treaty. It does obligate a government to seek, in good faith, ratification in accordance with applicable constitutional procedures. In the U.S. case, ratification—which does signify a legal duty to comply with a treaty—requires the “advice and consent” of the Senate by a two-thirds affirmative vote. Even if former president Bush had submitted the Rome Statute to the Senate, it was deemed a virtual certainty that it would remain unratified because it lacked sufficient backing.
4 Pursuant to Article 16, the Security Council can suspend an investigation for a renewable period of twelve months by adopting a resolution under Chapter VII of the UN Charter. This power has never been exercised to date.
5 Elian Peltier and Fatima Faizi, “I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed, Angering U.S.,” New York Times, 5 March 2020, https://www.nytimes.com/2020/03/05/world/europe/afghanistan-war-crimes-icc.html.
6 Peltier and Faizi, “I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed.”
7 See Human Rights Watch, “US Sanctions on the International Criminal Court: Questions and Answers,” 14 December 2020, https://www.hrw.org/news/2020/12/14/us-sanctions-international-criminal-court; and Human Rights Watch, “US Rescinds ICC Sanctions: Biden Should Support Global Court of Last Resort,” 2 April 2021, https://www.hrw.org/news/2021/04/02/us-rescinds-icc-sanctions.
8 Curiously, this objection does not extend to Russian nationals in the Situations in Ukraine and Georgia, or Burmese nationals in the Situation in Bangladesh/Myanmar.
9 Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine” (5 February 2021), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143 (henceforth PTC Decision).
10 See Pearce Clancy and Rania Muhareb, “Putting the International Criminal Court’s Palestine Investigation into Context,” Opinio Juris (blog), 2 April 2021, http://opiniojuris.org/2021/04/02/putting-the-international-criminal-courts-palestine-investigation-into-context/; specifically on apartheid, see Richard Falk and Virginia Tilley, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue no. 1, Economic and Social Commission for Western Asia, E/ESCWA/ECR/2017/1, 2017. A PDF of the report can be accessed at Middle East Monitor, https://www.middleeastmonitor.com/wp-content/uploads/downloads/201703_UN_ESCWA-israeli-practices-palestinian-people-apartheid-occupation-english.pdf
11 See Pearce Clancy, After the Pre-Trial Chamber Decision: Palestine and Territorial Jurisdiction at the International Criminal Court, Al-Haq, 13 March 2021, pp. 8–12, https://www.alhaq.org/cached_uploads/download/2021/03/13/qa-after-the-pre-trial-chamber-decision-interactive-1-page-view-1615653094.pdf.
12 UN General Assembly, Resolution 67/19, Status of Palestine in the United Nations, A/RES/67/19, ¶ 2 (4 December 2012), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N12/479/74/PDF/N1247974.pdf?OpenElement.
13 Situation in the State of Palestine, ICC-01/18-12, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine (22 January 2020).
14 Clancy, After the Pre-Trial Chamber Decision.
15 This is in step with the approach taken by the UN’s Committee on the Elimination of Racial Discrimination (CERD). See CERD, Inter-state Communication Submitted by the State of Palestine against Israel, CERD/C/100/5 (12 December 2019), https://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/HRBodies/CERD/CERD-C-100-5.pdf&action=default&DefaultItemOpen=1.
16 UN General Assembly, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/18 (25 September 2009), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/149/18/PDF/G0914918.pdf?OpenElement.
17 UN Human Rights Council, Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CRP.4 (24 June 2015), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/132/95/PDF/G1513295.pdf?OpenElement.
18 UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory, A/HRC/40/74 (6 March 2019), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/061/43/PDF/G1906143.pdf?OpenElement.
19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J Reports 2004 (9 July).
20 See, for example, UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Protests in the Occupied Palestinian Territory, A/HRC/40/74, ¶ 126 (6 March 2019), https://www.ohchr.org/EN/HRBodies/HRC/CoIOPT/Pages/Report2018OPT.aspx.
21 Previous attempts to pursue individual criminal accountability in national courts under the principle of universal jurisdiction have been largely frustrated by Israeli and U.S. intervention. See Richard Falk, “Book Review: The Case of Ariel Sharon and the Fate of Universal Jurisdiction,” Adalah’s Review, no. 5 (Spring 2009): p. 101, https://www.adalah.org/uploads/oldfiles/Public/files/English/Publications/Review/5/Adalahs-Review-5-101-Falk-Universal-Jurisdiction.pdf.
22 Australia, Austria, Brazil, the Czech Republic, Germany, Hungary, and Uganda acted as amici; see Michael Kearney, “ICC/Palestine: When Do States Recognise States?” JusticeInfo.net, 24 April 2020, https://www.justiceinfo.net/en/44180-icc-palestine-when-do-states-recognise-states.html; Ardi Imseis, “State of Exception: Critical Reflections on the Amici Curiae Observations and Other Communications of States Parties to the Rome Statute in the Palestine Situation,” Journal of International Criminal Justice 18 no. 4 (September 2020): pp. 905–25, https://doi.org/10.1093/jicj/mqaa049.
23 See Boris Johnson’s letter: Conversative Friends of Israel (@CFoI), “Prime Minister Boris Johnson has confirmed UK’s opposition to ICC investigation,” Twitter, 13 April 2021, 3:45 p.m., https://twitter.com/CFoI/status/1382057470810587141/photo/2.
24 See PM of Israel (@IsraeliPM), “Prime Minister Benjamin Netanyahu: ‘When the ICC investigates Israel for fake war crimes – this is pure antisemitism,’” Twitter, 6 February 2021, 10:55 a.m., https://twitter.com/IsraeliPM/status/1358081768625041409.
25 Once in January 2020, and again in May 2020. See ICC, Order Setting the Procedure and the Schedule for the Submission of Observations, ICC-01/18–14, ¶ 16 (28 January 2020), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-14; ICC, Order Requesting Additional Information, ICC-01/18–134, ¶ 7 (26 May 2020), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-134.
26 Israel Ministry of Foreign Affairs, “PM Netanyahu Holds Discussions on Israeli Policy Regarding the Statement of the International Court in The Hague,” 8 April 2021, https://mfa.gov.il/MFA/PressRoom/2021/Pages/PM-Netanyahu-holds-discussions-on-Israeli-policy-regarding-the-statement-of-the-international-court-in-The-Hague-8-April-20.aspx.
27 State of Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction over the So-Called “Situation in Palestine,” Israel Ministry of Foreign Affairs, 20 December 2019, https://mfa.gov.il/MFA/PressRoom/2019/Documents/ICCs%20lack%20of%20jurisdiction%20over%20so-called%20“situation%20in%20Palestine”%20-%20AG.pdf. Note that while this document was not sent to the court by Israel, the prosecutor nonetheless, and somewhat confusingly, included it as an annex to her request in January 2020.
28 Barak Ravid, “Scoop: Israel Will Ask Allies to Pressure ICC Prosecutor against Opening War Crimes Investigation,” Axios, 7 February 2021, https://www.axios.com/israel-icc-political-pressure-prosecutor-18b8af1d-96e8-424d-a6e8-aea601852d88.html.
29 France24, “‘We’re on the Edge of Financial Collapse,’ Says Head of UN Agency for Palestinian Refugees,” 2 February 2021, https://www.france24.com/en/tv-shows/the-interview/20210202-we-re-on-the-edge-of-financial-collapse-unrwa-chief-tells-france-24.
30 Sharmila Devi, “Funding Crisis Threatens Palestinian Refugee Agency,” The Lancet 396, no. 10264 (November 2020): p. 1714, https://doi.org/10.1016/S0140-6736(20)32527-7.
31 Jessica Donati, “Biden Administration to Restore Aid to Palestinians,” Wall Street Journal, 7 April 2021, https://www.wsj.com/articles/biden-administration-restoring-aid-to-palestinians-11617819667.
32 Rome Statute, Articles 89, 91.
33 PTC Decision, ¶ 124.
34 PTC Decision, ¶ 129.
35 See Carsten Stahn, “Response: The ICC, Pre-exiting Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton,” Vanderbilt Journal of Transnational Law 49, no. 2 (2016): pp. 450–51; Asem Khalil and Halla Shoaibi, Submissions Pursuant to Rule 103, ICC-01/18/73, ¶ 5–6 (16 March 2020), https://www.icc-cpi.int/CourtRecords/CR2021_01165.PDF.
36 Situation in the State of Palestine, ICC-01/18-73, Khalil and Shoaibi, Submissions Pursuant to Rule 103, ¶ 5–6 (16 March 2020), https://www.icc-cpi.int/CourtRecords/CR2020_01015.PDF.
37 See Beth Van Schaack, “Can the Int’l Criminal Court Try US Officials?—The Theory of ‘Delegated Jurisdiction’ and Its Discontents (Part I),” Just Security, 6 April 2018, https://www.justsecurity.org/54578/intl-criminal-court-officials-the-theory-delegated-jurisdiction-discontents-part-i/.
38 PTC Decision, ¶ 127–28; Rome Statute, Article 97(c).
39 Anthony J. Colangelo, “What Is Extraterritorial Jurisdiction,” Cornell Law Review 99, no. 6 (2014): pp. 1311, https://scholarship.law.cornell.edu/clr/vol99/iss6/2.
40 Rome Statute, Article 98(2).
41 Yaniv Kubovich, “Israel to Brief Hundreds of Defense Officials, Fearing They May Be Arrested after ICC Ruling,” Haaretz, 7 February 2021, https://www.haaretz.com/israel-news/.premium-israel-to-brief-defense-officials-fearing-they-may-be-arrested-after-icc-ruling-1.9519039.
42 The views of the authors on the substance were submitted as amicus curiae briefs. See Situation in the State of Palestine, ICC-01/18-77, Richard Falk, Amicus Curiae Submissions Pursuant to Rule 103 (16 March 2020); see also Situation in the State of Palestine, ICC-01/18–96, Palestinian Centre for Human Rights, Al-Haq, Al Mezan Center for Human Rights, and Al-Dameer Association for Human Rights, Submission Pursuant to Rule 103 (16 March 2020), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-96.
43 Richard Falk, “Israel: Is This the Beginning of the End of Apartheid?” Middle East Eye, 18 May 2021, https://www.middleeasteye.net/opinion/israel-palestine-apartheid-beginning-end.
44 For example, see Yonah Jeremy Bob, “Israel Knows How to Talk to the ICC without Legitimizing It—Ex-IDF Lawyer,” Jerusalem Post, 8 April 2021, https://www.jpost.com/israel-news/israel-knows-how-to-talk-to-icc-without-legitimizing-it-ex-idf-lawyer-664609.
45 For exposition of the nature of legitimacy wars, see Richard A. Falk, Humanitarian Intervention and Legitimacy Wars: Seeking Peace and Justice in the 21st Century (New York: Routledge, 2015). Victors in legitimacy wars do not always control political outcomes. For instance, the advocates of self-determination in Tibet, Western Sahara, and Kashmir have won legitimacy wars and yet have been unable to challenge effectively the arrangements of oppressive national control.
Additional information
Notes on contributors
Pearce Clancy
Pearce Clancy is a PhD candidate at the Irish Centre for Human Rights, National University of Ireland, Galway, and a legal researcher at the Palestinian human rights and legal aid organization Al-Haq.
Richard Falk
Richard Falk is Milbank Professor of International Law Emeritus, Princeton University; chair of global law, faculty of law, Queen Mary University, London; and was the UN Human Rights Council special rapporteur in the occupied Palestinian territories from 2008–14.