In a major development, Palestinian leaders have recently admitted what we have been arguing all along: there is no “State of Palestine.” This constitutes additional evidence that the Pre-Trial Chamber of the International Criminal Court (ICC) should consider when assessing whether the ICC has jurisdiction.
About three months ago, we informed you that the ICC Prosecutor was preparing her team to investigate Israelis for “war crimes” and “crimes against humanity” allegedly committed against Palestinians. In that attempt, the Prosecutor filed a request with a Pre-Trial Chamber “to confirm that the ‘territory’ over which the Court may exercise its jurisdiction . . . comprises the West Bank, including East Jerusalem, and Gaza,” effectively asking the Chamber to rule that these territories belonged to a “State of Palestine.” The reason why such a ruling is important is that, in order for the Court to exercise jurisdiction, one of the States, either on whose territory the alleged crimes have occurred or whose national/nation-? is accused of the crime, must be a party to the Rome Statute. In other words, since Israel is not a party to the treaty that established the ICC (neither is the U.S., by the way), the only way the ICC Prosecutor can try Israelis is if there is a “State” of Palestine. That’s why she is pushing so hard. She wants to go after Israelis.
On March 13, 2020, we submitted an amicus curiae brief with the Chamber through our European affiliate, the European Centre for Law and Justice (ECLJ), arguing that the Court has no legitimate legal basis to assert jurisdiction over the West Bank, East Jerusalem, or the Gaza Strip and that there is not yet, and never has been, a Palestinian State.
In a striking irony, recent statements made by the highest Palestinian representatives actually significantly support our position.
The most recent statement was made on June 9, 2020, by the Palestinian Prime Minister, who told journalists in Ramallah that, should Israel proceed with fulfilling certain parts of the newly proposed Peace Plan, “we are going to go from the interim period of the Palestinian Authority into a manifestation of a state on the ground.” He went on to explain that manifestation of the state on the ground “means there will be a founding council, there will be a constitutional declaration, and Palestine will be on the borders of 67 with Jerusalem as its capital and we will call on the international community to recognize this land.” This confirms that even the most senior Palestinian officials recognize that no “State” of Palestine exists today and that such a State remains only an aspiration.
The other recent statement was made by President Mahmoud Abbas on May 19, 2020, in reaction to the recently unveiled U.S. peace plan. Abbas said, “‘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.’”
Even the Pre-Trial Chamber of the ICC had taken notice of this statement and had asked the Palestinian representatives to clarify “whether President Abbas’ statement pertained to any of the Oslo agreements between Palestine and Israel.”
Interestingly, the Palestinian representatives stated that they did not understand the Chamber’s question and told the Chamber that “it is not readily apparent from the Order which issue(s) raised in the President’s statement (‘the Statement’) . . . the Court specifically wishes to address” and asked the Chamber to “specify the issues the Statement [is] thought to be relevant to.” We believe that is a dodge because either way they answer, the ICC would have no jurisdiction.
The reality is that the ever changing Palestinian positions make a mockery of the judicial process of the ICC and have exposed the underlying Palestinian strategy of making cynical use of international law to help advance Palestinian political goals.
It is important to focus on the most crucial aspect of Presidents Abbas’ statement. If the Palestinians say yes, President Abbas was in fact referring to the Oslo Accords, it would mean that the Oslo agreements (which, among other things, preclude any changes to the political status of the territories in question, stipulate that the issue of borders be decided in permanent status negotiations and provide that the current Palestinian entity is not a state, and also have no criminal jurisdiction over Israelis) continued in force at least until May 19, 2020 (the day President Abbas said the treaties were no longer valid). Accordingly, the Pre-Trial Chamber would have to rule that the ICC has no jurisdiction in the present case.
By the same token, if they answer in the negative, that would mean that the Oslo agreements were still in force and, likewise, the ICC would not have jurisdiction.
This is important because the Prosecutor has told the Chamber that the Oslo Accords did not bar the Court’s jurisdiction. Similarly, the Palestinians keep asserting that the Oslo Accords are not relevant to the issues before the Court.
This reflects the common Palestinian practice of espousing multiple positions on the same issue depending on the audience being addressed and the goal being sought. For example, when it suits their goals to claim rights and privileges under the Oslo Accords, Palestinian officials argue that the Accords continue to apply and should be enforced; but when provisions of the Accords do not support their goals, they act as if no such Accords exist. Appealing to outside groups and organizations like the U.N. or the ICC to recognize a State of Palestine with the 1949 armistice lines as its borders and East Jerusalem as its capital is an example of the latter point, since the explicit terms of the Oslo Accords leave the issues of borders, Jerusalem, and the status of Israeli settlers to permanent status negotiations between the parties.
Further, in their response to the ICC Pre-Trial Chamber, the Palestinians stated that President Abbas’ statement means that “if Israel proceeds with annexation [of the West Bank], a material breach of the agreements between the two sides, then it will have annulled any remnants of the Oslo Accords and all other agreements concluded between them.”
This in fact further confirms that the Oslo Accords are still in force and continue to govern the resolution of the issues between the parties. After all, the Oslo Agreements are the instrument that created the current Palestinian entity and which define and delineate its powers. Because the Oslo Accords created an entity well below the threshold of Statehood, preclude unilateral actions to change the status of the territories (such as declaring a State), require both parties to discuss borders of the future Palestinian entity in the permanent status negotiations (which have yet to occur), as well as stipulate that the Palestinian Authority has no criminal jurisdiction over Israelis, it follows that there is absolutely no basis for the ICC to assert jurisdiction over the territory in question.
The Pre-Trial Chamber should give due weight to the public statements by senior Palestinian officials, which have direct bearing on the question before the Chamber. In fact, this is new evidence which should help the Chamber to rule that the ICC has no jurisdiction because there is no State of Palestine (as even the two highest ranking Palestinian officials acknowledge), and the Gaza Strip and the West Bank, including East Jerusalem, are, at best, disputed territories whose resolution is governed by the process of negotiations to which the parties (Israel and the Palestinians) have mutually agreed.
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