One of the biggest concerns among Israeli commentators is that the Palestinian Authority’s statehood bid would give the Palestinians access to the International Criminal Court.
A Palestinian state could ask the court to prosecute war crimes committed on its territory – in the occupied West Bank and Gaza, in other words.
These prosecutions would not necessarily be limited to Israeli soldiers: The construction of Jewish settlements in the West Bank, for example, could constitute a war crime under the Geneva Conventions.
Israeli officials have already expressed concern about the court extending its jurisdiction to a Palestinian state. Michael Oren, Israel’s ambassador to the United States, said last month that ICC membership was one of the primary goals of the statehood bid.
“We want to be able to negotiate but we won’t be able to negotiate if they are attacking our legitimacy in every international court. We’re not going to negotiate under fire,” Oren said in an interview with Foreign Policy magazine.
But legal scholars say it’s far from clear whether United Nations recognition would allow the PA to join the court.
What makes a state?
A little background: The PA is not a party to the Rome Statute, the treaty drafted in 1998 which established the ICC. But the authority nonetheless approached the court in early 2009, after Israel’s three-week war in Gaza, and said it would accept the court’s jurisdiction “for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine.”
In doing so, it invoked article 12(3) of the statute, which allows “a state which is not a party to this statute” to accept the court’s jurisdiction over particular crimes.
But the statute does not define “state,” an omission which sparked off a years-long debate on whether article 12(3) could apply to the Palestinian Authority. The court has held hearings on the PA’s request, and legal scholars on both sides have written detailed opinions.
Nearly three years later, though, the ICC has yet to rule on the PA’s request.
A state, under international law, generally needs to possess four qualifications: a permanent population; a government; defined territorial boundaries; and the ability to enter into relations with other states.
The first two clearly exist in the Palestinian territories. And the United Nations has long held that the 1949 armistice line – the “Green Line” – is the internationally recognised boundary between Israel and Palestine.
But the last point – relations with other states – is fuzzy: Technically, the PA is only responsible for domestic governance, while the the Palestine Liberation Organisation deals with foreign relations.
The Palestinian legal organisation Al-Haq, though, has argued that the PLO and PA are increasingly one and the same.
“[This] division of labour with regards to foreign relations seems difficult to enforce given the overlap between the two organisations,” Al-Haq wrote in a legal opinion in 2009. “And the reality is that the PA has entered into various agreements with international organisations and states.”
Other international bodies, including the World Health Organisation and UNESCO, have similarly ignored requests for membership filed by the PA.
Settlements as war crimes?
If the UN fully recognised the state of Palestine, legal scholars say that state would almost certainly be able to join the ICC.
But an expected US veto makes that an almost impossible outcome; far more likely is recognition as a “non-member observer state.” In that case, it’s unclear what the court would do.
If the ICC did approve Palestine’s membership, or its article 12(3) bid, the government in Ramallah could pursue prosecutions for several types of crimes. The most obvious is violence committed by Israeli soldiers against civilians, particularly in Gaza, which routinely suffers aerial bombardments that cause civilian casualties.
ICC membership could also offer the Palestinian state another avenue to contest Israel’s illegal settlement construction in the occupied West Bank.
The United Nations has issued numerous resolutions declaring the construction of Jewish settlements to be a violation of the Fourth Geneva Convention, which forbids an occupying power from relocating its civilian population into the occupied territory.
Settlement construction, in other words, could potentially be referred to the ICC as a war crime.
Finally, Palestinian officials could also pursue prosecutions for “the crime of apartheid,” an offense over which the ICC has jurisdiction.