Palestinian Foreign Minister Riad al-Maliki recently visited the International Criminal Court in The Hague seeking clarification about the legal procedures and mechanisms necessary for Palestine to join the International Criminal Court (ICC).
Palestinians, their friends, and those interested in international accountability for Israel's latest litany of war crimes allegations in Gaza, have campaigned for the Palestinian government to become a State Party to the Rome Statute of the Court or at the very minimum lodge an ad hoc declaration accepting its jurisdiction.
Geoffrey Robertson recently wrote of the possibility, urging the Palestinians to take the step in the interests of justice and a large community of international lawyers and professors of international law have signed a declaration to that effect. International and Palestinian human rights organisations, such as PHRC and Al-Haq, Amnesty International and Human Rights Watch have long lobbied for the Palestinians to become a party to the ICC. The Human Rights Council and the UN High Commissioner for Human Rights called for investigations into war crimes allegations in this latest offensive.
Palestinian President Mahmoud Abbas has on many occasions threatened to take steps to become a party to the Statute. Palestinians are growing impatient with his threats, angry at having their right to seek justice being leveraged like a bargaining chip. In the past, the US, UK, EU member states, Canada and Australia, have pressured the Palestinian Authority against joining the ICC.This pressure came with threats of withdrawing financial aid and assistance. Abbas buckled to the pressure much to the dismay of Palestinians campaigning for justice and accountability.
A short statement reflecting the position of the Office of the Prosecutor, (OTP) was issued after the meeting with Maliki, saying that the OTP has no basis to open a preliminary investigation.
Much has changed since Palestine's filing of an ad hoc declaration in 2009 accepting the Court's jurisdiction. The OTP then led by Luis Moreno Ocampo, ruled that Palestine, not being a state, could not accede to the Statute.
Since Palestine's changed status as a non-member Observer State at the UN in November 2012, comments from the Prosecutor, Fatoua Bensouda have suggested the Office may now look at any communication from Palestine favourably. In March 2013 she was quoted to have said: "the ball is now in the court of Palestine", "Palestine has to come back," and "we are waiting for them."
Questions on jurisdiction
Although we do not know for certain what the OTP's decision will be, there are worrying prospects that, despite Palestine's new status as a State, jurisdictional problems still arise.
A little-known decision by the OTP issued recently might severely impact Palestine's position. In December 2013 deposed Egyptian President Mohammed Morsi, sought to invoke the court's jurisdiction over his country as the rightfully elected head of state. In May this year, the OTP dismissed the application on the basis that Morsi lacked effective control of the Egyptian government and was no longer head of state. In separate trajectories but leading to the same conclusion, Professors Eugene Kontorovich and Kevin Jon Holler write this could negatively impact Palestine's attempt at accession, as questions as to the Palestinian government's effective control of its territory could block any attempt at conferring the court jurisdiction.
Speculation as to an OTP determination continues. A best-case scenario includes the OTP making a favourable determination and initiating a preliminary investigation as a result.
However, if an unfavourable determination is made, alternative pursuits for international justice and accountability are still available for the Palestinians. The UK and Australia, and many other states, have signed and ratified the Rome Statute. They have also passed implementing legislation for crimes within the jurisdiction of the ICC to be tried in their own courts. This concept is known as "complementarity" and broadly as "universal jurisdiction".
The concern however is a deficit of political will on the part of states to utilise it. In the UK, after arrest warrants were issued for Israeli ministers and generals, tip offs allowed them to evade arrest. In a brazen move, the UK has since then increased immunity to alleged war criminals by removing the option for opening private prosecutions after an intense Israeli diplomatic offensive. In the case of Tzipi Livni, she was accorded "special mission" diplomatic immunity despite at the time being a leader of the Israeli opposition.
Australian universal jurisdiction
Closer to home in Australia the question of whether the state is willing to undertake prosecutions into crimes of grave international concern has been the subject of two separate requests in recent years. Both have concerned allegations against a former or current visiting Israeli head of state and both requests were denied by the attorney general.
Australia codified the offences of the Rome Statute into the Commonwealth Criminal Code, meaning that war crimes, genocide, and crimes against humanity, are indictable offences of the Commonwealth over which Australian courts have jurisdiction. Prosecutions can only commence with the written consent of the attorney general and indictments are made in his name, which leads to the first known request under the Criminal Code.
On December 3 2009, advocacy group, Australians for Palestine, wrote to the then Attorney General Robert McClelland. The group had understood that Ehud Olmert, then former prime minister of Israel was present in Australia. They made a formal request under the relevant provision of the law alerting the attorney general of Olmert's presence in the country and urging him to give "consent to a case for prosecution against Ehud Olmert for war crimes".
The attorney general responded some 19 days later, long after Olmert had left the country with a statement that hid behind the veneer of the "peace process" and that maintained "allegations of war crimes committed wholly overseas can be difficult to investigate."
A freedom of information request for documents was lodged with the attorney general's department, in the hope it would shed some light on what had occurred. Only some 100 pages emerged. They show a flurry of emails from officers in the department, more concerned about how to respond to media enquiries than in following a protocol in responding to such requests.
There is plenty to learn from this episode but the attorney general's response was insufficient and disappointing. The attorney general's office had improved its procedures in time for the next request when Sri Lanka's President was in town for CHOGM in 2011.
Evidently the broader point here is that states have obligations to ensure the respect and compliance of international humanitarian law and have a duty to open their courts for the prosecution of these crimes. What is the point of having these laws but exhibit an unwillingness to utilise them?
Ehud Olmert was one of the prime architects of Operation Cast Lead, a 22-day offensive carried out between December 2008 to January 2009, leaving almost 1500 dead and severely devastating the Gaza Strip. The Report of the UN Fact-Finding Mission otherwise known as "the Goldstone Report", specifically called on states who are duty-bound under international law to conduct criminal investigations in national courts using universal jurisdiction, stating that prosecutions are necessary to ensure the respect of international humanitarian law and to prevent the development of a climate of impunity.
Australia had failed in that regard on first instance, but there will be opportunities in the future where it can show leadership on the demands of international justice. Governments must ensure they have the correct procedures and resources in place to properly prosecute those alleged of having committed crimes of an international nature.
Rawan Abdulnabi is a Palestinian-Australian lawyer and human rights advocate.
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