Israel Wants Int’l Criminal Court to Reject Palestinian Bid: It’s ‘Not a State’

Patrick Goodenough | January 1, 2015 | 6:14pm EST
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( – Israel expects the International Criminal Court to reject the Palestinian Authority’s bid to join the tribunal on the grounds that it “is not a state,” Prime Minister Binyamin Netanyahu said Thursday.

In response to losing its attempt to get the U.N. Security Council to set a deadline for Palestinian statehood, the P.A. on Wednesday submitted letters of accession to almost 20 international treaties, including the Rome Statute, the ICC’s founding treaty.

After a meeting in Tel Aviv to discuss the latest P.A. diplomatic gambit, Netanyahu said Israel expects the ICC to turn down the P.A. application “because the Palestinian Authority is not a state.”

“It is an entity in alliance with a terrorist organization, Hamas, which perpetrates war crimes,” he added.

“The State of Israel is a nation of laws with a moral army that upholds international law. We will defend the soldiers of the IDF [Israel Defense Forces] just as they defend us.”

Announcing that he had signed accession letters to a range of treaties, P.A. chairman Mahmoud Abbas said in a televised statement the Palestinians “want to complain about the harm caused to us and to our land.”

“But who shall we complain to?” the official P.A. news agency Wafa quoted him as saying. “The Security Council refused our request. Where will we go? To the international organizations.”

The Hague-based ICC is empowered to investigate and act in cases of alleged war crimes, crimes against humanity and genocide.

Abbas hopes that becoming a party to the 1998 Rome Statute will enable the Palestinians or their supporters to bring complaints against Israel before the court.

Only recognized states – or the U.N. Security Council – are empowered to file actions, however, and the ICC in April 2012 turned down an earlier P.A. request for “Palestine” to be considered a state for the purposes of ICC jurisdiction.

At the time the then-ICC prosecutor, Luis Moreno-Ocampo announced that his office lacked the authority to determine whether the P.A. self-rule area constituted a “state.”

In late 2012 the U.N. General Assembly voted to upgrade the Palestinians’ status from “non-member observer entity” to “non-member state.” But such General Assembly actions are non-binding, and there has been no change to the P.A.’s legal status since Moreno-Ocampo’s ruling.

(Although UNGA resolutions may help to shape the content of international law, recognition as a state requires four criteria to be met, under the 1933 Montevideo Convention on the Rights and Duties of States: permanent population; defined territory; effective government; and capacity to enter into relations with other states. The area under P.A. administration objectively does not.)

On Wednesday State Department spokeswoman Jeff Rathke confirmed that the U.S. does not support ICC membership for the P.A.

“We are deeply troubled by today’s Palestinian action regarding the ICC,” he said. “Today’s action is entirely counterproductive and does nothing to further the aspirations of the Palestinian people for a sovereign and independent state.”

Rathke said the Palestinians’ move “badly damages the atmosphere with the very people with whom they ultimately need to make peace,” adding that actions by either Israel or the P.A. that undermine trust “only push the parties further apart.”

The Israeli government and some legal commentators have argued that the P.A.’s bid to join the ICC may be counterproductive, since it would also open up its actions – and those of unity government partner, Hamas – to ICC scrutiny.

Palestinian Authority chairman Mahmoud Abbas and Israeli Prime Minister Binyamin Netanyahu in the East Room of the White House on Wednesday, Sept. 1, 2010. (AP Photo/Susan Walsh)

Israeli and Palestinian leaders accuse each other of having committed war crimes during the seven-week war between Israel and Hamas in the Gaza Strip last summer.

U.N. bodies have also leveled similar accusations relating to an earlier conflict, the Israel-Hamas clash in the winter of 2008-2009.

The U.S. is not itself a party to the ICC’s Rome Statute, based on concerns that it would be used to bring politically-motivated cases against U.S. citizens, especially military personnel serving abroad.

President George W. Bush in 2002 withdrew his predecessor’s signature, and the Obama administration has not acted to join the ICC. It has, however, supported calls to have Sudanese President Omar al-Bashir face trial at the ICC on charges arising from the conflict in Darfur.)

The most recent National Security Strategy, issued in 2010, states that the U.S. supports “the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”

--Among the other treaties the P.A. has now applied to join are the Convention against Transnational Organized Crime; Convention on the Law of the Sea; nuclear Non-Proliferation Treaty; Convention on the Political Rights of Women; and Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

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