The Weekly Hubble looks at current discussions about the International Criminal Court or topics relating to International Justice.
This past week, there was a great deal of talk about whether Palestine should become a member of the International Criminal Court. Just as views on the Israel-Palestine conflict are split down the middle – journalists, academics and International Justice professionals are equally divided on Palestine’s desire to join the ICC and the consequences of potential membership.
In an editorial published in Forbes, David Davenport argues that maybe it would be best for Palestine to stay out of the ICC, for their own sake.
“While we’re being practical, Palestine would have a lot to lose by bringing the ICC into Gaza, since it would be vulnerable to prosecution right along with Israel.”
Janet Anderson brought up the case of Palestine in Justice Hub, where she took a more in-depth look at how the situation could develop for Palestine if it were to join the ICC.
“If Palestine does join it automatically would come under the ICC’s jurisdiction. But that doesn’t mean an investigation would automatically begin. Alongside joining the court the PA should also refer a “situation” to the prosecutor – and that could be the recent war in Gaza. In fact the prosecutor could decide to go ahead herself with an investigation without the PA’s referral, so long as she has the backing of three ICC judges, but that’s a high-risk strategy as can be seen in the current problematic Kenya cases.”
In The Independent, Sir Geoffrey Nice and Sir Desmond Lorenz de Silva, don’t just see the US and Israel as the main forces working against Palestinian accession to the ICC. The European Union gets a strong dose of criticism for its “hypocrisy”.
“There is also hypocrisy at the heart of Europe’s engagement with Palestine. Even as they continue their generosity ($600m a year from the EU alone, plus separate donations from individual countries), and condemn illegal settlement expansion by the Israelis, European member states are stubbornly opposing a measure that could incentivise peace and provide a strong deterrent to future destruction: namely Palestininian accession to the International Criminal Court (ICC).”
But the conversation is not solely about the practical matters of what would happen next. There seems to be a debate going on about whether Palestine can even join the ICC. In The Independent, Nice and Lorenz de Silva argue that Palestine should now be able move forward with a membership to the International Criminal Court.
“However, since 2012 Palestine has had observer state status at the UN, meaning that it is now eligible to accede to the ICC – a fact confirmed recently by the current ICC prosecutor, Fatou Bensouda. “
David Davenport wants people to hold their horses before jumping on a possible Palestine-to-ICC bandwagon. When dealing with an already complex issue, Davenport uses international legal jargon to argue that statehood is not cut and dried… at least not in the Palestine case.
“In fact, the new Prosecutor of the Court, Fatou Bensouda, recently asserted that this vote makes it possible for Palestine to accede to the Court’s statute and jurisdiction. To which I would respond: not so fast!
Statehood is a highly complex matter that is not necessarily resolved by a U.N. General Assembly vote. International law establishes several objective tests for statehood, with the generally accepted criteria including (1) a permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states. (Montevideo Convention on the Rights and Duties of States, 1933). Essentially all those questions are still open in the case of Palestine. And if Palestine does not meet the required criteria, it is not a state, no matter what the General Assembly might say.”
But does Palestine even want to join the ICC? Nabil Abuznaid, the Palestinian ambassador to the Netherlands, believes that joining the ICC could make a negotiated two-state solution all but impossible.
“This is not the Palestinian preferred choice because going to the ICC is the final divorce: one-way move, no way back. I don’t think Palestinians and Israelis are ready for a final divorce.”
So what does it all boil down to…
Does Palestine want to join the ICC?
How will Israel react to a possible accession?
When/how will Palestine become a (fully) recognized state?
Sherif Arafa is an Egyptian cartoonist who works for Cartoon Movement.
The Weekly Hubble features the most popular or controversial international justice story of the past week and reactions on social media to the news.