________By Andrew Tucker, Director at thinc.
On 5th June 2020 the “State of Palestine” submitted its response to the Pre-Trial Chamber’s Order requesting them to provide additional information about recent statements by the Palestinian organizations concerning the Oslo Accords (“Palestine’s Response on Oslo”). The Response is a fascinating document that raises a number of issues.
The Issues Raised
1. The Palestinian response in fact hardly deals with the question the Court asks for: a clarification on the recent statement of Mr. Abbas and its relevance for the Oslo agreements. Instead, “Palestine” uses this “response” as an opportunity to (a) continue to pursue its claim that it is a State, and (b) launch its claim that that the proposed “annexation” is a breach of international law and should also be prosecuted. It is actually a misuse of the article 19(3) process, and it will be interesting to see if the Court accepts these arguments into the process.
2. Regarding Oslo Accords, Paragraph 13 contains self-contradictory statements. First, “Palestine” argues that “annexation” by Israel would be a material breach of the Oslo Accords and would “annul” the Accords. Then in the next sentence, it says that the mere announcement of the planned “annexation” absolves the PLO from its obligations under the Oslo Accords. So it is not clear whether “Palestine” regards the Accords as still being binding.
3. The response is submitted by “The State of Palestine”. Mahmoud Abbas is referred to as “the President of the State of Palestine”. One of the main points being raised in these article 19(3) proceedings is whether the Court must decide, in order to determine its jurisdiction, if “State of Palestine” is in fact a “State”. Of course, Palestine itself takes the view that this issue is not relevant to article 12 of the Statute, and that it is sufficient for a determination that the Court has jurisdiction that Palestine is a State Party. The Prosecutor also agrees with this. But that is not the view of many amici, who argue that (a) the Court only has jurisdiction if Palestine is a State under international law, and (b) it is not. Palestine’s Response on Oslo presents the status of “the State of Palestine” as if the existence of “Palestine” as a state under international law were a legal fait accompli – which it is not.
4. “Palestine” argues that the Court should avoid politics and focus on the law (para 6). But then it proceeds to do just that: it obfuscates the legal issues and makes what are essentially a political argument – namely, that because “Palestine” has been accepted as a state in the political domain (UNGA, ICC Assembly of State Parties) it therefore should be treated as a state as a matter of law. Thus Palestine is diverting the Court’s attention from the real legal question which is: is “Palestine” actually a “State” in law and fact?
5. Similarly, it argues (para 12) that the alleged illegality of the planned “annexation” should be taken into account when determining jurisdiction under art 19(3). This again obfuscates the question the court must decide under art 19(3) – namely, whether the crimes have been committed on the territory of a State Party. In making that decision, the Court is NOT supposed to be looking at the question of whether the conduct is illegal.
6. “Palestine” argues that Israel’s plans amount to “annexation” which is illegal on three counts:
- Breach of the prohibition on the acquisition of territory by force
- Breach of the prohibition on use of force against territorial integrity or political independence of any State
- Breach of the rights of the occupied State / occupied Power
All of these allegations are predicated on (a) the existence of Palestine as a State and (b) that the relevant territories belong to the State of Palestine – and these are the very issues in dispute. They can be easily countered by the arguments, made by several of the amici to the court, that:
- “Palestine” is not a State,
- the territory does not belong to “Palestine”, and
- the occupation was not commenced by an illegal (ie. aggressive) act of force on Israel’s part (Six Day War).
7. “Palestine” also argues that it would be a crime of aggression under art 8 bis of the Statute of Rome, constituting an act of aggression infringing the obligations as occupying power towards the protected persons. But the proposed application of Israeli law would not in any way involve an “act of force” – it does not involve any military action whatsoever.
8. “Palestine” argues that the Oslo Agreements are “irrelevant for the purposes of the ICC” because they cannot be interpreted as a limitation on the right of the Palestinian people to self-determination and statehood. The argument is based on art 47 FGC: that an agreement between the Occupying Power and local authorities cannot limit the rights of protected persons in the occupied territory. This is fallacious argument as the FGC does not say that protected persons have a collective right to self-determination, nor does it say anything about protecting the self-determination rights of peoples.