By Colin A. Cuttress
SEVENTEEN international human rights groups have urged Palestine to apply to the International Criminal Court (ICC) in a letter addressed to President Abbas dated May 8th, 2014.
With the United Nations granting Palestine “non-member, observer state status” in 2012, the current ICC Prosecutor, Fatou Bensouda, has said “the ball is now in the court of Palestine” to seek the court’s jurisdiction.
Taking measures to accede to the Rome Statute could ensure access to international justice for victims of war crimes and crimes against humanity committed on Palestinian territories.
While the Americans and Israelis, who are not themselves ICC members, oppose any initiative by Palestine to join the ICC on the grounds the court would play an active role in the conflict, the signatories to the letter state that a credible prosecution threat would help to advance the cause of peace.
With “the Wall” being illegally constructed by Israel on Palestinian land contrary to international law, and the United Nations Register of Damage having now collected over 40,000 claims from Palestinians for demolished homes and confiscated property to name two, a legal question arises as to whether Israel’s actions would be caught by the ICC’s statute.
The Rome Statute defines war crimes to include the “direct or indirect” transfer of civilians into an occupied territory by an occupying power or the deportation of parts of the population outside the occupied territory (see Article 8(2)(b)(viii) of the Rome Statute). It is thought that the statute could for example cover the deportation of Palestinians from parts of their land, which has been occurring since the Six Day War in 1967 and continues today.
On the other hand the ICC’s former chief prosecutor, Moreno-Ocampo, has stated that Israel has little to worry about. He has also pointed out ICC membership could be a double-edged sword for the Palestinians, as it could open the gates to investigations into alleged war crimes for rocket fires and bombings targeting Israeli citizens.
The position of the international human rights community is to be keen to see either Israel or Palestine gain ICC membership. However for Palestine there is the added benefit of greater international recognition and legitimacy, which is a fundamental criterion for statehood under international law.