Pompeo to ICC: ‘We Do Not Believe the Palestinians Qualify as a Sovereign State’

By Patrick Goodenough | December 23, 2019 | 1:45am EST
The International Criminal Court in The Hague, The Netherlands.  (Photo by Michel Porro/Getty Images)
The International Criminal Court in The Hague, The Netherlands. (Photo by Michel Porro/Getty Images)

(CNSNews.com) – Seven years after the U.N. General Assembly voted to upgrade the status of the Palestinian delegation from “non-member observer entity” to “non-member state,” the chief prosecutor of the International Criminal Court is arguing that as a result of that – purportedly non-binding – decision, the ICC has jurisdiction over alleged crimes committed in the territory in question.

On Friday, Fatou Bensouda announced that she has asked the ICC judges to confirm that the court indeed has jurisdiction in the West Bank, Gaza, and eastern Jerusalem. That bench’s confirmation would then allow her to pursue allegations of war crimes committed in “the occupied Palestinian territory, including East Jerusalem,” since 2014.

It’s the latest in a series of incremental wins in the Palestinians’ long campaign to be treated as a sovereign state in international forums despite not being one.

Neither Israel nor the U.S. is a party to the ICC’s founding document, the Rome Statute, and both reject the right of an international tribunal to put their citizens on trial.

Both also reject the right of the Palestinians to have been allowed to join the Rome Statute in the first place. In 2015 the ICC opened its doors to the “State of Palestine,” whose representatives declared their willingness to accept the court’s jurisdiction.

Two weeks later, the prosecutor’ office launched its preliminary investigation into “the situation in Palestine.”

The Trump administration rejected Bensouda’s latest position, with Secretary of State Mike Pompeo contradicting her arguments that the Palestinians can and should be treated as a sovereign state on the basis of the 2012 General Assembly decision.

“As we made clear when the Palestinians purported to join the Rome Statute, we do not believe the Palestinians qualify as a sovereign state, and they therefore are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC,” Pompeo said in a statement.

“The United States also reiterates its longstanding objection to any assertion of ICC jurisdiction over nationals of states that are not parties to the Rome Statute, including the United States and Israel, absent a referral from the U.N. Security Council or the consent of such a state.”

Israeli Attorney General Avichai Mandelblit also rejected the ICC prosecutor’s assertion of jurisdiction.

"Only sovereign states can delegate criminal jurisdiction to the court,” he said in a statement. “The Palestinian Authority clearly does not meet the criteria for statehood under international law and the court’s founding statute.”

“The claim that the Palestinians have purported to join the Rome Statute does not meet, nor can it replace, the substantive test requiring criminal jurisdiction to have been delegated to the court by a sovereign state with a defined territory,” Mandelblit said.

He also pointed out that “Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the court’s jurisdiction,” adding that both sides had agreed to resolve their dispute over that territory by negotiation.

Israel’s foreign and justice ministries said in a joint statement that Bensouda had been “influenced by Palestinian manipulation, which aims to weaponize the court.”

“The simple truth is that there is no Palestinian state and there never has been such a state,” they said. “Accordingly, the court has no jurisdiction in this case and claiming otherwise is a distorted act of legal acrobatics.”

UNGA resolutions are non-binding, although they may help to shape the content of international law.

Recognition as a state, however, requires four criteria to be met, under the 1933 Montevideo Convention on the Rights and Duties of States: a permanent population; defined territory; an effective government; and the capacity to enter into relations with other states.

ICC chief prosecutor Fatou Bensouda, right. (Photo by Bas Czerwinski/AFP via Getty Images)
ICC chief prosecutor Fatou Bensouda, right. (Photo by Bas Czerwinski/AFP via Getty Images)

‘Risk of arrest in more than 100 countries’

Palestinian officials and media outlets hailed the development in The Hague, where the ICC is located.

“Israeli government officials are facing the risk of arrest in more than 100 countries,” declared Al-Hayat al-Jadida, the official P.A. daily.

PLO secretary general Saeb Erekat called Bensouda’s decision a “major turning point” for the Palestinians, and shrugged off the U.S. objections.

“America believes itself above the law and that it has full immunity, but the decision of the criminal court is a qualitative shift, and this administration will not be able to destroy international law and provide Israel with protection from accountability,” the Palestinian press agency SAFA quoted him as saying.

P.A. allies, among them the governments of Turkey and Malaysia, also welcomed Bensouda’s statement.

The ICC was established to cases of genocide, crimes against humanity and other egregious rights violations.

Under the Rome Statute, a case can be referred to the ICC by a ratifying state party, by ICC judges where a case has been initiated by an ICC prosecutor, or by the Security Council.

The U.S. opposed the initiative from the outset.

President Clinton called the treaty flawed and did not seek Senate advice and consent. President George W. Bush agreed, and signed more than 100 agreements with nations which promised not to surrender American citizens to the ICC without U.S. approval.

The American Service Members Protection Act, signed by Bush in 2002, prohibits the use of federal funds “for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the International Criminal Court.”

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