by Daniel Robinson*
The United Nations (“UN”) Human Rights Council has issued a report warning Israel to cease settlement activity in the West Bank or potentially face legal action at the International Criminal Court (“ICC”).
The report, released on 31 January 2013, states that Israel is in violation of international law and calls for both a cessation of all settlement activity ‘without preconditions’ and the initiation of ‘a process of withdrawal of all settlers’. Turning to the ICC, the report highlights the court’s jurisdiction over the settlements under the Rome Statute, stating: “Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims”.
The report follows an historic vote in November by the UN General Assembly (“the Assembly”) recognising Palestine as a non-member observer state, a step up from its former status. Its timing had agreeable symmetry, occurring as it did on the 65th Anniversary of the United Nations vote for a plan of partition of British-mandated Palestine into what would become Arab and Israeli states. Although Palestine cannot vote at the Assembly as a non-member and enjoys the same status as the Vatican, the only other non-member observer state, the change of designation to ‘state’ may prove of more than simply symbolic importance.
Britain and Germany both abstained from the vote, the British government expressing concerns that Mahmoud Abbas had failed to promise he would resume peace negotiations with Israel. It was clear prior to the vote that worries over potential international legal action by Palestine were high on the agenda; the US and Britain among others sought explicit assurances from the Palestinians that they would not seek to join the ICC in the near future.
These fears are not groundless. On 22 January 2009, the Palestinian National Authority lodged a declaration with the ICC Registrar under Article 12(3) of the Rome Statute (“the Statute”) accepting the jurisdiction of the ICC for acts committed on the territory of Palestine since 1 July 2002 – the date the Rome Statute legally came into force.
Article 12 deals with preconditions to the exercise of jurisdiction. The ICC is not based on universal jurisdiction but on jurisdiction provided by the United Nations Security Council or a state. Article 12 allows states who are not party to the Statute to accept the court’s jurisdiction. However, the key word is ‘state’, and in order to begin an investigation, the Office of the Prosecutor (“the OTP”) would have had to determine that Palestine was a state for the purposes of the Statute.
The decision of the OTP, delivered on 3rd April 2012, was that it had to rely on a legal determination of the issue by the relevant bodies at the U.N. The OTP did not consider those bodies to have determined that Palestine was a State. This is despite UNESCO’s vote in October 2011 to admit Palestine as a full member; UNESCO’s constitution provides that states who are not UN members may be admitted to membership on a two-thirds majority vote of the General Conference. In concluding, the OTP focused on the UN General Assembly, observing:
“The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments…However, the current status granted to Palestine by the United National General Assembly is that of “observer”, not as a “Non-member State”…
The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of State Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction.”
The Security Council has not hinted that any referral is likely, and many consider that such a referral would not escape a veto from Israel’s more public supporters. However, bearing in mind that the OTP considers it must follow the lead of the Assembly in determining such matters, the vote may lead the ICC to consider that Palestine is a state for the purposes of the Statute. On 30th November the ICC stated that the OTP took ‘note of the decision’ and would now consider the ‘legal implications of this resolution’.
For Palestine, two potential routes are opened by the vote: a re-submission of the request to the new prosecutor, this time as a U.N. recognised observer state, or ratifying the Statute. For now, Palestine has declared no immediate intention of re-submitting the request, although in the context of those remarks the Palestinians’ U.N. envoy Riyad Masour referred specifically to bringing Israel into compliance over the building of settlements in the West Bank. Presumably Palestine would seek to invoke Article 8 of the Statute, which defines as a war crime the transferring of an Occupying Power’s own population onto territory it occupies. Traditionally the International Community has pointed to the similar provision in Article 49 of the fourth Geneva Convention, as does the UN report.
Any such ICC investigation would of course be fraught with hurdles, not least having to give consideration to what constitutes the borders of Palestine and the borders of any territory occupied by Israel and indeed whether that territory is occupied for the purposes of the Charter. Moreover, although the ICC could be invited to investigate the general situation, according to the Statute Palestine could refer a situation in which crimes had been committed and detail the circumstances, but cannot refer specific crimes only. Any ICC investigation could conceivably focus on actions committed by both sides.
These considerations may give pause to any immediate action from Palestine. Moreover the ICC can be slow to respond; Palestine’s 2009 invitation received a decision in 2012. However, Palestine’s new status gives what could be a useful bargaining tool to future negotiations with Israel and opens interesting legal avenues that will be considered with unease by more than one quarter in the years to come.
* Daniel Robinson is a barrister at 18 Red Lion Court Chambers