Jan. 24, 2018
- In January, Israel’s National Security Council warned that the Prosecutor of the International Criminal Court (ICC) will likely open a formal investigation against Israeli officials and officers in response to Palestinian complaints regarding Israel’s 2014 operation in Gaza and its building of settlements in the West Bank.
- The Statute of the ICC clearly establishes that it is open to states only. The Palestinians consider themselves to be a sovereign state, relying on UN General Assembly Resolution 67/19 of December 4, 2012, which accorded “to Palestine non-member observer State status in the United Nations.”
- However, this resolution was a political, non-binding General Assembly resolution. The UN General Assembly does not have the legal capacity, pursuant to the UN Charter, to establish states, but only to accept existing states pursuant to a recommendation of the Security Council.
- Despite the lack of any valid legal foundation, the international community has, in general, accepted the resolution as granting statehood to the Palestinians. On January 6, 2015, the UN Secretary-General announced his acceptance of the “State of Palestine” as a fully-fledged state party to the ICC Statute.
- The decision to accept “Palestine” as a party to the ICC Statute, and to accept Palestinian complaints against Israel, was rejected as illegal by the U.S. Administration, and the U.S. Congress adopted a resolution to the same effect on May 18, 2015.
- A further legal question is how is it possible to impart to the ICC legal jurisdiction over disputed territory, the sovereign status of which has yet to be agreed upon? The Palestinian leadership and Israel agreed in the 1993-5 Oslo Accords that the permanent status of the territories would be resolved by negotiation between them and not through unilateral action or imposition by international bodies.
- It remains to be seen whether the ICC will allow itself to be politically manipulated by the Palestinians and by prevailing political pressures, or whether it will assert its legal authority as the responsible international juridical institution it was intended to be and, based on clear, objective legal reasoning, will reject the Palestinian manipulation.
Amb. Alan Baker, former legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon.
(Click on the article’s title to see the whole article…Ed.)