Palestine acceding to Rome Statute: Prospects, challenges
Fajri Matahati Muhammadin
The Jakarta Post
At the end of the year, on Dec. 31, Palestine acceded to the Rome Statute of the International Criminal Court (ICC) after the UN Security Council failed to pass a resolution to end Israel's occupation in 2017. It is thus only a matter of time for the statute to enter into force for Palestine.
The ICC can investigate situations where international crimes have been committed by nationals of or within the territory of a state that is part of the ICC.
Israel itself is not a party to the statute, making UN Security Council Resolutions the only way to prosecute Israeli officials for their numerous alleged international crimes. However, having friends on the Security Council (US and UK) with veto rights has effectively made them immune so far.
Since Palestine has become a party in the Rome Statute, Israel is now vulnerable to prosecution for its planned actions in the territory.
The statute also opens up the possibility for the ICC to prosecute crimes occurring before that state became a party. This makes Israel's previous actions such as Operation Protective Edge, launched since Palestine's recognition by the UN General Assembly in 2012, vulnerable to ICC investigations.
Not long ago, the ICC decided against investigating Israel's assault on the Mavi Marmara ship carrying volunteers for Palestinians due to "insufficient gravity."
However, no such excuse is present if the ICC is faced with claims regarding Operation Protective Edge and other violations involving Israel since the end of 2012. We could be looking at a wide array of charges of genocide, crimes against humanity and war crimes.
Will justice be served? Prospects are there, but so are challenges.
The first challenge would be regarding the involvement of heads of state. Despite the Rome Statute explicitly stating that official capacity has no effect in their prosecutions, the issue of head of state immunity ' especially active heads of state ' has been a long standing debate in international law.
Precedence includes the indictment and sentencing of Charles Taylor of Liberia in the Special Court for Sierra Leone, the case of Slobodan Milosevic at the UN tribunal for former Yugoslavia and most recently the proceedings against the late Moammar Qaddafi at the ICC. So, although it may be controversial, heads of state have been prosecuted.
However, the politics surrounding the prosecution of heads of state may be too dense to deal with. Sudan's President Omar al-Bashir seems to be protected by some African states despite the ICC arrest warrant against him.
While the ICC may prosecute heads of states, are states willing to go against a very long-standing customary law to respect heads of other states? Even if they are, then the respective heads of state will simply not visit the places where they could be arrested.
Benjamin Netanyahu simply needs to stay in Israel or visit only friendly states. There is no telling how much the US can help in shielding Israeli officials from prosecution.
A second challenge is determining ICC's territorial jurisdiction. While the ICC has jurisdiction over territories of state parties, how do they define the territory of Palestine?
One way to determine the borders is through contentious proceedings, e.g. the International Court of Justice (ICJ) or through arbitration. However, those means require the consent of both parties, while Israel does not even recognize Palestine.
Another way is to use other customary laws and past treaties/documents (e.g the 1948/1967 maps) to determine the territory. However, will the ICC dare to go that far? Perhaps not, and it is very likely to put a hold on investigations pending decisions from 'more authoritative legal bodies' like the ICJ.
A way to sneak around contentious proceedings at the ICJ is through its advisory opinions, such as those issued in 2004 on Israel's construction of the wall in the Palestinian territory.
Advisory opinions of the ICJ, which could be referred to by the ICC, are non-binding, but they are generally respected as they clarify the law.
The UN General Assembly is known for managing to muster sufficient votes to pass pro-Palestine resolutions. Thus, the request for the ICJ's advisory opinions might be made.
The ICJ has judged against big powers in the past: the US in the Nicaragua case ( 1986 ) and in Israel wall case. However, those cases were never enforceable because the ICJ relies on the compliance of the state in question or UN Security Council Resolutions. Now we have the ICC, which can operate independently from the Security Council. Was the ICJ brave in the past because it knew its judgments were not enforceable?
Support for Palestine has risen significantly since its recognition in 2012. More states recognize Palestine and participate in boycotts or divestments against Israel's occupying force, and very recently even Hamas was omitted from the European Union's terrorist list.
However, the UK and US support for Israel remains consistent in rendering the UN's strongest organ, the Security Council, a toothless tiger. One can reasonably hope that the ICC and ICJ keep their oath and do what is right amid heavy political interference.
There are prospects and challenges to achieving justice but also prospects to counter these challenges. Israel has many methods for eluding justice, e.g. through legal contentions or claims of immunity.
However, at the very least, the ICC will soon be able to legally start banging on Israel's doors. It seems that justice comes step-by-step, and we are certainly looking forward to that next step.
Advisory opinions of the ICJ are non-binding, but they are generally respected.
The writer lectures in international law at the Faculty of Law, Gadjah Mada University (UGM) in Yogyakarta.
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