International Criminal Court Opens Inquiry into Possible War Crimes in Palestinian Territories: A Response to UN Secretary General Ban Ki-moon – Alan Baker (Jerusalem Center for Public Affairs)
(dailyalert.org, Jan. 22, 2015
Amb. Alan Baker, a former Legal Officer in the UN Office of Legal Affairs and a former senior member of Israel’s delegation to the 1998 Rome Conference on the ICC and to the preparatory committee involved in drafting the ICC Statute, wrote to UN Secretary General Ban Ki-moon on Jan. 18, 2015:
As you are probably aware, the concept of the creation of an independent, permanent International Criminal Court was born following the atrocities of the Second World War and the Holocaust, and representatives of the world’s Jewish communities and the State of Israel were actively involved, since the early 1950s, in developing the vision and bringing it to fruition.
However, despite active Jewish and Israeli involvement in the concept and drafting of the Statute, Israel was prevented from becoming party to it in view of the injection of politicization into the drafting of the list of crimes set out in Article 8 of the Statute.
Regrettably, our worst fears have recently come to fruition, and the ICC is being manipulated to become a politicized “Israel-bashing” body, at the initiative of the Palestinian leadership which wrongfully perceives the Court as being their own private judicial tribunal, in order to conduct their political campaign against Israel.
This is borne out in several recent instances in which both the Secretary General and the ICC Prosecutor have been petitioned by the Palestinians to make political determinations at variance with the aims, purposes and very provisions of the Statute.
The 2012 General Assembly resolution which upgraded the Palestinian status within the UN to that of a “non-member observer state” cannot be considered, by any legal interpretation or analysis, as indicative of, or granting statehood. That resolution did not establish or acknowledge Palestinian statehood or sovereignty.
A political General Assembly cannot and should not serve to guide the ICC Prosecutor in carrying out her legal functions. Clearly, the General Assembly is not a judicial body, but a political one. Its determinations are political, not legal.
Taking into consideration the accepted international criteria for statehood as set out in the 1933 Montevideo Convention which include, among other things, a unified territorial unit and responsible governance of its people, and capability of fulfilling international commitments and responsibilities, no serious UN organ or the Prosecutor of the ICC could, logically, accept the Palestinian Authority’s claim to statehood and accession to the ICC Statute, as well as to other international conventions limited to “States.”
See also Is Israeli Concern over the ICC Premature? – Raphael Ahren
Alan Baker, a former legal adviser to Israel’s Foreign Ministry, says that regardless of the ICC Prosecutor’s personal leanings, following the preliminary examination with a full-fledged criminal investigation will not be easy. According to the rules of the Court, laid down in the Rome Statue, there is only a “reasonable basis to proceed” if several criteria are fulfilled.
First, the ICC has to establish that it indeed has territorial and personal jurisdiction over what happened in Palestine. Some experts wonder how the prosecutor will determine who’s a Palestinian citizen and where the state’s borders are.
Next, the ICC will have to check whether the people under suspicion of crimes have not already been investigated by their country’s own legal system, and whether the alleged crimes are severe enough to occupy a court meant to look into “unimaginable atrocities that deeply shock the conscience of humanity.” According to Baker, this means that Israeli leaders and generals have nothing to be afraid of. “It’s a big bluff, a huge PR exercise” launched by Palestinians to give Israel some bad press, he opined.
The court could take up Israel’s building of settlements in the West Bank. The Rome Statue includes phrasing that was inserted at the behest of Egypt and Syria that was clearly intended to criminalize Israeli settlements. However, is the building of housing units in eastern Jerusalem an “unimaginable atrocity”? The ICC has so far not looked into similar cases such as Turkish settlements in Northern Cyprus. (Times of Israel)