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International Criminal Court: Palestinian Human Rights Organisations Public Response to the Pre-Trial Chamber Request of 26 May 2020

13-06-2020 08:42

Date 11 June 2020

 

In December 2019, the Prosecutor concluded the preliminary examination into the Situation in the State of Palestine, setting in motion the concomitant Article 19(3) process on territorial jurisdiction. However, since January 2020, Israel, with the sponsorship of the United States government under the unilateral Trump “Peace to Prosperity” plan, has taken significant and far-reaching steps to implement an annexationist policy with the intention of permanently exercising sovereignty over and entrenching its apartheid regime in the occupied Palestinian territory. In response, on 19 May 2020, President of the State of Palestine, Mahmoud Abbas, declared that “the Palestine Liberation Organization and the State of Palestine are absolved, as of today, of all the agreements and understandings with the American and Israeli governments and of all the commitments based on these understandings and agreements, including the security ones”.[1]

 

Following this, the Pre Trial Chamber of the International Criminal Court issued an order requesting that Palestine provide additional information on this statement, including on the question whether it pertains to any of the Oslo agreements between Palestine and Israel, by no later than 10 June 2020.[2] Further the Pre Trial Chamber ordered the Prosecutor and invited Israel, to submit a response to any information submitted by Palestine, no later than 24 June 2020. In its 4 June response, the State of Palestine recommended the shortening of the timeframe for Israel’s response, a recommendation not opposed by the Prosecutor.

 

In this report, Al-Haq Law in the Service of Man (Al-Haq), Al Mezan Center for Human Rights (Al Mezan), Al-Dameer Association for Human Rights (Al-Dameer), Palestinian Centre for Human Rights (PCHR) (hereinafter, the Palestinian human rights organisations) respond to these developments, outlining Palestinian civil society positions on President Abbas’ statement absolving the Oslo Accords.

 

  1. The State of Palestine’s Response

 

On 4 June 2020, the State of Palestine submitted its response to the Pre Trial Chamber, cogently outlining its position that President Abbas’ statement was not part of the record of the proceedings and therefore does not “legally affect the question presently before the Chamber”. The response provided a contextual analysis of Israel’s unlawful acquisition of territory through use of force and annexation in violation of peremptory norms of international law, which amount to acts of aggression criminalized under Article 8bis of the Rome Statute of the International Criminal Court.[3] The State of Palestine outlined that should Israel annex the West Bank, that it would have committed a material breach of the Oslo Accords, thereby annulling the Oslo Accords and all other agreements between the State of Palestine, the PLO and Israel.[4] In the meantime, the State of Palestine, given “Israel’s persistent violations of these agreements, and its announced plans and measures for annexation” consider that it is absolved of responsibility under the agreements, including security arrangements. Importantly, the State of Palestine draws careful attention to Israel’s continued obligations under international humanitarian law and international human rights law, notwithstanding the State of Palestine’s absolving of the Oslo Accords. Here the State of Palestine response emphasized that:

 

In relation to Israel, the Statement simply highlights and reiterates what is already required of Israel, as the Occupying Power, by international law, including the Fourth Geneva Convention, the Hague Regulation, and customary international law, which provide that the Occupying Power shall assume responsibility for the occupied territory and its inhabitants while not altering the demographic composition, character, and status of the territory. The Statement is thus in line with international law, including international humanitarian law, and the norms applicable to Israel’s occupation and all policies and practices thereunder, including its annexation measures.[5]

 

The State of Palestine further reiterates the protection enshrined in Article 47 of the Fourth Geneva Convention, 1949, under which protected persons in occupied territory may not be deprived of their benefits under Geneva Convention “by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory”.[6] In this respect, the Palestinian human rights organisations, broadly support the positions articulated by the State of Palestine in its response and note the primacy of the occupation law framework under the Hague Regulations and the Fourth Geneva Convention, which governs the administration of the occupied territory, as the lex specialis.

 

  1. The Prosecution Response

 

On 8 June 2020, the Prosecutor of the ICC provided its response to the State of Palestine’s Response to the Pre Trial Chambers Order requesting additional information, emphasising that the Prosecution had already explained in detail its understanding of the Oslo Accords, which remained the same. The Prosecutor noted with concern, Israel’s declared imminent annexation

 

of the Occupied Palestinian Territory, and reiterated that the Court’s territorial jurisdiction under article 12(2)(a) extends to the West Bank, including East Jerusalem and the Gaza Strip.[7]

 

  1. Palestinian Human Rights Organisations Position

 

3.1 Special Agreements under the Fourth Geneva Convention (1949)

 

In its statement of 30 April 2020 addressed to the Pre-Trial Chamber, the Office of the Prosecutor was clear in reiterating the conclusion that “nothing in the Oslo Accords bars Palestine from accepting the jurisdiction of the Court, or the exercise of that jurisdiction by the Court”.[8] While the Prosecutor recalls that an aim of the “Oslo Process” was “to give effect to the Palestinian people’s right to self-determination”,[9] the Oslo process has manifestly failed in that regard and can be better understood as having facilitated a legalistic shield under which Israel has been permitted to entrench its de facto annexation and apartheid of the occupied Palestinian territory, in violation of international humanitarian and international human rights law.[10]

 

We reiterate our position of 2009, that “The exclusion of Israelis from [Palestinian Authority] jurisdiction as provided for in the Interim Agreement cannot legitimately be considered as extending to the international crimes of war crimes and crimes against humanity as to do so would be incompatible with international law”.[11] This analysis was premised on Articles 8 and 47 of the Fourth Geneva Convention (1949), which affirm that the Occupying Power cannot conclude agreements, which derogate from or deny to protected persons the safeguards of the Fourth Geneva Convention. Accordingly, our organisations recall the preamble of the First Additional Protocol, “Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments”.[12]

 

Again, in our joint amici observations to the Court in March 2020, our organisations reiterated that “Israel was not acting in good faith to conclude the occupation and hand over governing authority to the Palestinian Authority within five years of the conclusion of the Oslo Accords” and that “it is evident now from the pronouncements of the Palestinian Authority, that the Oslo Accords have fallen into desuetude”.[13]

 

3.2 Primacy of International Law

 

As a State party to the Rome Statute since 2015, the State of Palestine is both bound by and owed the protection of the Statute’s preamble, “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. There is nothing within the Oslo process which can detract from the primacy of international law and specifically from the authority of the International Criminal Court to exercise its jurisdiction over the Situation in the State of Palestine.

 

Further, there is nothing in the Oslo process, or elsewhere in international law, which can deny or legitimately reduce, the State of Palestine’s territory, nor its territorial jurisdiction over the commission of international crimes. In deflecting from the urgent need to realise the opening of a formal investigation into the Situation in Palestine, the continued effect of the Oslo Accords has been to derail focused argument and analysis, to diminish the primacy of human rights, and to perpetuate impunity. [14] Further delays to the process as to the opening of a formal investigation into the Situation in Palestine now aggravates the significant uncertainty that has characterised the prolonged Preliminary Investigations of 2009-12 and 2015-19.

 

We draw attention to the arguments advanced before the Appeals Chamber in the Situation in Afghanistan, to the effect that “certain agreements entered into between the United States and Afghanistan affect the jurisdiction of the Court and should be a factor in assessing the authorisation of the investigation”.[15] However the Appeals Chamber categorically rejected these arguments stating:

 

“the effect of these agreements is not a matter for consideration in relation to the authorisation of an investigation under the statutory scheme. As highlighted by the Prosecutor and LRV 1, article 19 allows States to raise challenges to the jurisdiction of the Court, while articles 97 and 98 include safeguards with respect to pre-existing treaty obligations and other international obligations that may affect the execution of requests under Part 9 of the Statute. Thus, these issues may be raised by interested States should the circumstances require, but the arguments are not pertinent to the issue of the authorisation of an investigation”.[16]

 

Our organisations emphatically stated in our amicus submission to the Court on 16 March 2020, that “the Oslo Accords ceased to be binding in 1999, when a permanent settlement was not reached, as provided for in the agreement”.[17] The brief also emphasised the 2019 Advisory Opinion of the International Court of Justice (ICJ) in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, drawing parallels between the 1965 agreement between the United Kingdom and the ‘Council of Ministers’ of its then colony Mauritius, and the situation and the context in which Israel and the PLO concluded the Oslo Process.[18] There the ICJ held:

 

“In the Court’s view, it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter. The Court is of the view that heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a new colony”.[19]

 

3.3 The Oslo Accords have no Effect on the Court’s Exercise of Territorial Jurisdiction

 

Our organisations restate that the Oslo Accords have no effect on the Court’s exercise of territorial jurisdiction. In this vein, we stress Judge Carranza’s recent reflection on the relationship between amnesty and accountability:

 

“In determining whether an amnesty for international crimes that amount to serious human rights violations is compatible with international law, it is its effect rather than its nomenclature that matters. If the effect of the measure is impunity for perpetrators of international crimes, then such measure would be incompatible with international law”.[20]

 

Judge Carranza further noted that: “it is not open to a State to dispose of international crimes that resulted in the serious violation of human rights. Human rights predate the existence of the State and therefore cannot be the object of an exercise of political power by a State”.[21]

 

Such sentiment must be taken on board in reviewing our current situation. Claims that Oslo serves to deny Palestine jurisdiction over individuals responsible for the perpetration of Rome Statute crimes on its territory are unfounded and without merit. The effect of relying upon Oslo to deny or delimit Palestinian jurisdiction over Rome Statute crimes in any way would be to consolidate and entrench impunity for perpetrators, and would result in not only an unwarranted amnesty for past wrongs, but as a licence for the perpetration of future crimes. It would, as the Office of the Prosecutor has noted, be incongruous for Oslo to trump the exercise of the Palestinian right to self-determination.[22]

 

  1. Israel’s Planned Annexation of Palestinian Territory in July 2020

 

We note that the current positions of the Palestinian President Mahmoud Abbas, reflect the State of Palestine’s peaceful response to Israel’s annexationist measures, however we are also cognizant of the impact that any delays in opening an investigation may have on providing a green light for Israel to continue its war crimes and crimes against humanity in facilitating its territorial expansion including through apartheid, persecution, forcible displacement and transfer in, wilful killing, pillage, and unlawful destruction of property.

 

While the Pre-trial Chamber has authority in line with Article 58 of the Rules of Procedure and Evidence to request “Palestine to provide additional information on this statement, including on the question whether it pertains to any of the Oslo agreements between Palestine and Israel”,[23] such authority is to be exercised “so as long as this does not cause undue delay”.[24]

 

Such delays consolidate the environment of criminality and impunity which characterise the occupation. On 8 June 2020, Al-Haq sent a detailed 17-page urgent appeal to several United Nations (UN) Special Procedures mandates on the extrajudicial execution and wilful killing of Palestinian person with disability, Iyad Khayri Al-Hallaq, a 31-year-old Palestinian resident of East Jerusalem. Iyad was shot and killed by Israeli Border Police while on his way to the Elwyn Centre, a day centre for youth and adults with disabilities in the Old City of Jerusalem on Saturday, 30 May 2020, in violation of international human rights law, international humanitarian law, and in what amounts to the commission of a war crime.

 

We respectfully note, that while the Pre-Trial Chamber is correct to review the Oslo process, and to remain cognisant of and engaged with the political developments which affect that process, given the inordinate amount of time which has passed since the opening of the preliminary examination, and the accelerated moves on the part of Israel, the Occupying Power, and the United States, towards the annexation of Palestine, the present order with its deadline of 24 June 2020 brings us to the precipice of annexation, which is scheduled for 1 July 2020.[25]

 

In the present context, ‘undue delay’ needs be read with a degree of heightened and urgent imminence and immediacy. It does not appear that matters which will be the subject of future proceedings, and which can in no way provide a primae facie basis for denying the scope and extent of the Court’s ability to exercise jurisdiction over the Situation in Palestine, can, in the current environment, be considered so fundamental that they justify further delay towards a prospect of accountability and deterrence.

 

Welcoming the prompt response of Palestine and of the Office of the Prosecutor, and sharing their conclusions that the terms and content of the Oslo Accords present neither impediment nor relevance to the Court’s exercise of jurisdiction over the Situation in Palestine, we support Palestine’s call, which the Prosecutor does not oppose,[26] for the Pre-Trial Chamber to rescind or at least to shorten the deadline the 26 May 2020 Order allows for Israel to respond. As noted by the State of Palestine, “The Israeli leadership should not be permitted to use the time given by the Pre-Trial Chamber to carry out its criminal plan, but should instead be dissuaded from it by the prompt opening of an ICC investigation”.[27] We share the contention “that the on-going and intensifying commission of crimes, including the impending attempt at unlawful annexation, constitute good cause for the request to shorten the deadline”.[28] In the face of the consolidated, ongoing, and internationalised assault on the right of the Palestinian people to dignity and to self-determination, it is imperative for a formal investigation to be opened. Regardless of the Article 19 process currently underway, and with due respect to the Prosecutor’s Office, and to the Pre-Trial Chamber, as we await the threat of annexation it is now imperative that a formal investigation be opened without any further delay.


[1] Wafa Palestine News Agency, President Abbas declares end to agreements with Israel, US; turns over

responsibility on occupied lands to Israel, 19 May 2020.

[2] Situation in the State of Palestine, Order Requesting Additional Information, No. ICC-01/18, 26 May 2020.

[3] Note, the International Criminal Court does not have jurisdiction over Israel’s acts of aggression, as Israel is not a party to amendment Article 8bis of the Rome Statute.

[4] The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC-01/18, 4 June 2020, para. 13 available at: <https://www.icc-cpi.int/CourtRecords/CR2020_02277.PDF>

[5] The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC-01/18, 4 June 2020, para. 16 available at: <https://www.icc-cpi.int/CourtRecords/CR2020_02277.PDF>

[6] The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC-01/18, 4 June 2020, para. 18, available at: <https://www.icc-cpi.int/CourtRecords/CR2020_02277.PDF>

[7] Prosecution Response to “The State of Palestine’s response to the Pre-Trial

Chamber’s Order requesting additional information”, ICC-01/18, 8 June 2020, Para 5-7.

[8] Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18, 30 April 2020, para 62.

[9] Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18, 30 April 2020, para 64.

[10] Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18, 30 April 2020, footnote 269; CERD/C/ISR/CO/17-19, Committee on the Elimination of Racial Discrimination, Concluding observations on the combined seventeenth to nineteenth reports of Israel, para. 23, available at: http://www.alhaq.org/cached_uploads/download/2019/12/21/cerd-cos-1576920588.pdf

[11] Al-Haq Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (2009) para 36.

[12] Preamble, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Of 8 June 1977

[13] No.: ICC-01/18, Situation in the State of Palestine, Palestinian Centre for Human Rights, Al-Haq, Al Mezan Center for Human Rights, Al Dameer Association for Human Rights, Submission Pursuant to Rule 103, para. 49, available at: https://www.icc-cpi.int/CourtRecords/CR2020_01063.PDF

[14] Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States para ICC-01/18, 30 April 2020, para 73.

[15] Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, 5 March 2020, para. 44 available at: https://www.icc-cpi.int/CourtRecords/CR2020_00828.PDF

[16] Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ICC-02/17 OA4, 5 March 2020, para 44.

[17] Palestinian Centre for Human Rights, Al-Haq, Al Mezan Center for Human Rights, Al Dameer Association for Human Rights, Submission Pursuant to Rule 103, ICC-01/18, 16 March 2020.

[18] Palestinian Centre for Human Rights, Al-Haq, Al Mezan Center for Human Rights, Al Dameer Association for Human Rights, Submission Pursuant to Rule 103, ICC-01/18, 16 March 2020, section 4.2, p. 18.

[19] International Court of Justice, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, para 17.

[20] Separate and Concurring Opinion of Judge Luz del Carmen Ibáñez Carranza on the Judgment on the appeal of Mr Saif AlIslam Gaddafi against the decision of Pre-Trial Chamber I entitled ‘Decision on the “Admissibility Challenge by Dr. Saif AlIslam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute”’ 22 April 2020, para 37.

[21] Separate and Concurring Opinion of Judge Luz del Carmen Ibáñez Carranza, 2020, para 36.

[22] Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18, 30 April 2020, para 76.

[23] Order requesting additional information, ICC-01/18-134, 26 May 2020.

[24] Article 58.2 Rules of Procedure and Evidence, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1), part II.A.

[25] Noa Landau ‘Israeli Annexation Explained: What Is Netanyahu Planning for the West Bank and What Does It Mean’ Haaretz.com, 26 May 2020.

[26] Prosecution Response to “The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information”, ICC-01/18-136, 8 June 2020, para 2.

[27] The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC-01/18-135, 4 June 2020, para 33.

[28] The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC-01/18-135, 4 June 2020, fn 33.

Tags / #IOF crimes #IHL #NoMoreImpunity #NoAccountability #ICC