A little legal restraint on Israel at last?

Palestine defies the US/EU and joins the ICC



For many years, Britain has regarded Israel’s colonisation of Palestinian territory in the West Bank, including East Jerusalem, as illegal under international law and an obstacle to bringing about a “two-state solution”, which is the stated objective of British policy.  Here is a summary of that policy from the Foreign and Commonwealth Office website:


“We want to see a stable, prosperous Middle East with a sovereign and viable Palestinian State living in peace alongside a secure Israel at the heart of it.


“We are concerned by developments that threaten the viability of the two-state solution. Changing circumstances, in particular the construction of settlements on occupied land in the West Bank and East Jerusalem, mean that the two-state solution is slipping away.


“Our position on Israeli settlements in the Occupied Palestinian Territories is clear: they are illegal under international law, an obstacle to peace and make a two-state solution harder to achieve. We consistently urge the Israeli authorities, including at the highest levels, to cease all settlement building, revoke previous announcements and to remove illegal outposts, as required under international law.”


But over many years, Israel has simply ignored the repeated urging of Britain (and of the EU and various UN organisations) that it “cease all settlement building”.


Israel has not even been prepared to cease settlement building temporarily during negotiations with Palestinians, even though, under the Roadmap for negotiations that it accepted in April 2003, it was supposed to “freeze all settlement activity, including natural growth” before the start of negotiations.


It has been clear for many years that Israel is not going to “cease all settlement building” without serious and sustained pressure being applied to it – and without a halt to this colonisation project the stated objective of British policy, a two-state solution, is a dead letter.



UN enables Palestine to join the ICC

In November 2012, the UN General Assembly voted by an overwhelming majority – 138 in favour to 9 against – to grant Palestine observer rights at the UN as a "non-member state", despite fierce opposition from Israel and the US.


From then on, Palestine was in a position to become a party to the Rome Statute of the International Criminal Court (ICC) and accept the Court’s jurisdiction in Palestinian territories, that is, in the West Bank, including East Jerusalem, and Gaza.  In that event there would have been a peaceful legal means of applying pressure on Israel to cease its colonisation of Palestinian territory. 


This is because under Article 8.2(b)(viii) of the Rome Statute:


the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”


is defined to be a war crime.  The Rome Statute defines the offences – war crimes, crimes against humanity and genocide – for which individuals can be prosecuted by the ICC if it has jurisdiction. 


Since Israel has transferred nearly 600,000 Israeli civilians into territory it occupies, there is little doubt that war crimes have been committed by agents of the Israeli state over many years, and are still being committed.  There is a prima facie case therefore that the Israelis responsible, including the present Prime Minister, are guilty of war crimes and it may be that Americans and others who contribute funds for settlement building are guilty of aiding and abetting war crimes.



Britain (and the EU) oppose Palestine joining ICC

The Palestinian leadership wanted to join the ICC as soon as possible after November 2012 in the hope of having Israelis prosecuted for settlement building and other illegal activity in Palestinian territories.


But they were under great pressure not to do so from Israel and its American protector, as you might expect, but also from Britain (and the EU).  Given their utter failure over many years to persuade Israel to “cease all settlement building”, one might have thought that Britain (and the EU) would have welcomed a little legal pressure on Israel to do so. 


Britain opposed Palestine taking this step, despite the fact that (a) it is a party to the ICC  (unlike Israel and the US) and (b) making the ICC universal, that is, extending the jurisdiction of the ICC to every state on earth, is a stated objective of British foreign policy.  As Foreign Minister William Hague said in a speech in The Hague on 9 July 2012:


“Our challenge … is to strive to universalise the Rome Statute … and to make irreversible the progress that has been made in ending the culture of impunity for the worst crimes.”


Striving to universalise the Rome Statute and end the culture of impunity was not in evidence a few months later on 28 November 2012 when the UN General Assembly was about to vote on Palestinian statehood.  Then, William Hague offered UK support for the UN General Assembly resolution granting statehood to Palestine, providing Palestinian leaders promised (amongst other things) that Palestine would NOT become a party to the Rome Statute if it acquired statehood.


Yes, believe it or believe it not, it is British policy to extend the jurisdiction of the ICC to every corner of the earth, except the Palestinian territories occupied by Israel since 1967.  There, it is apparently inappropriate for Britain to seek to end the culture of impunity.


The justification given by William Hague for this extraordinary exception was that if the Palestinians were to pursue “ICC jurisdiction over the occupied territories at this stage, it could make a return to negotiations impossible”, as if twenty years of sporadic negotiations had curtailed Israeli colonisation one whit or brought the creation of a Palestinian state any closer.


Two days later, when in retaliation for the UN granting statehood to Palestine, Israel announced plans for yet more building in settlements, William Hague reacted as follows:


“I am extremely concerned by reports that the Israeli Cabinet plans to approve the building of 3000 new housing units in illegal settlements in the West Bank and East Jerusalem. Israeli settlements are illegal under international law and undermine trust between the parties.”


What sense does it make to decry illegal actions by Israel, while pressurising Palestine into not giving jurisdiction to a court that might convict those responsible and by so doing restrain future illegality?


In the two years since Palestine achieved statehood, Britain continued to oppose Palestine accepting ICC jurisdiction.


And so did the EU, despite also being a fervent supporter of ICC universality.  This stance was formalised in a common foreign policy position, adopted by the EU Council on 21 March 2011, the purpose of which was stated to be “to advance universal support for the Rome Statute”.  In it, the EU and its member states agreed to “make every effort to further this process by raising the issue of the widest possible ratification, acceptance, approval or accession to the Rome Statute and the implementation of the Rome Statute in negotiations”.  It’s not obvious that the EU “made every effort to further this process” in its relations with Palestine in recent years.



Palestine defies US/EU

On 2 January 2015, Palestine defied the US/EU and its UN ambassador, Riyad Mansour, deposited with the UN Secretary General Ban Ki-moon the documents required to join the ICC.   On 6 January, Ban Ki-moon announced that it will take effect on 1 April.


The Palestinian leadership is to be congratulated for having the courage to take this step in defiance of the US/EU, on whom they rely for financial support, and in the sure and certain knowledge that Israel was sure to punish them for doing so.  For the first time since 1967, when Israel’s military occupation began, there is a possibility of some legal restraint on Israel’s actions in the territories it occupies.


It is no thanks to Britain or the EU that this has come about.  As entities that purport to believe in the rule of law and ICC universality, Britain (and the EU) should have encouraged Palestine to join the ICC from the moment that the option was available in November 2012.  But they did the opposite.


Thanks to Britain and the EU, two years have wasted, two years during which Israel has continued its colonisation of Palestinian territory – and continued to ignore pleas from Britain and the EU (and others) to cease – and in which the possibility of a viable Palestinian state being established has been further reduced.


A final point: if Palestine had joined the ICC two years ago, as the Palestinian leadership wished, the ICC would have had jurisdiction over Gaza since then.  That might very well have been sufficient to deter Israel from mounting a military assault on Gaza last summer, lest its military personnel be indicted by the ICC, and might have saved well over two thousand lives.



David Morrison

20 January 2015