By David Singer ——Bio and Archives--February 12, 2021
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The International Criminal Court (ICC) Pre-Trial Chamber 1 decision that the ICC has jurisdiction to investigate alleged war crimes committed in Gaza, the West Bank and East Jerusalem has infuriated Israel--but should bring no joy to Hamas, the Palestine Liberation Organisation (PLO) or the United Nations which continues to support the PLO's claim for the creation of a second Arab State in former Palestine--in addition to Jordan.
The ICC Prosecutor believes:'there is a reasonable basis to believe that members of Hamas and Palestinian armed groups […] committed the war crimes of: intentionally directing attacks against civilians and civilian objects (articles 8(2)(b)(i)-(ii), or 8(2)(e)(i)); using protected persons as shields (article 8(2)(b)(xxiii)); wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv)) and wilful killing (articles 8(2)(a)(i), or 8(2)(c)(i)); and torture or inhuman treatment (article 8(2)(a)(ii), or 8(2)(c)(i)) and/or outrages upon personal dignity (articles 8(2)(b)(xxi), or 8(2)(c)(ii))' (para 94)The Prosecutor further concluded in para 94 that these potential cases would be currently admissible for prosecution once jurisdiction was established. The Court noted:
"The identification of potential cases by the Prosecutor and her evolving investigation, which is likely to be protracted and resource-intensive, entails that the question of jurisdiction under consideration has concrete ramifications for the further conduct of the proceedings. The initiation of an investigation by the Prosecutor also means that States Parties are under the obligation to cooperate with the Court pursuant to part 9 of the Statute. It is, therefore, all the more necessary to place the present proceedings on a sound jurisdictional footing as early as possible."(para 86)The PLO and Hamas will be kept very busy answering the ICC Prosecutor's enquiries regarding those Palestinian war crimes identified in para 94.
"the present decision is strictly limited to the question of jurisdiction set forth in the Prosecutor's Request and does not entail any determination on the border disputes between Palestine and Israel. The present decision shall thus not be construed as determining, prejudicing, impacting on, or otherwise affecting any other legal matter arising from the events in the Situation in Palestine either under the Statute or any other field of international law."(para 60)Any expectation Israel will return to the negotiating table after the PLO's flirtation with the ICC is hard to visualise. The 163 page partly dissenting opinion of Judge Péter Kovács' dwarfs the Court's actual 60 page decision. It is complicated and breathtaking in its scope and incredible research. In it Judge Kovács' made the following observations:
His Honour also listed the recent statements (below) of leading Palestinian personalities on the 'State of Palestine' as an 'aim to achieve' and not as an existing, sovereign and independent State. The State of Palestine remains a United Nations mirage based on fiction--not fact.
- "To sum up, no conclusion can be drawn that the 'Non-Member Observer State' status in the United Nations should be construed in abstracto to mean that its holder is a sovereign State." (para 219)
- "Palestine is a State Party 9 (under the ICC Statute--ed) despite its current and perhaps peculiar international legal situation. As a State in statu nascendi, Palestine may also perform its rights and obligations. However, this does not mean that its 'statehood' has been achieved, that the issue of its territory as 'territory of the State' has been settled, or that its 'borders' can be conceived as State boundaries." (para 267)
- "Although Mr. Mahmoud Abbas is the Head of State of a State Party, Palestine has not yet achieved a full-fledged and sovereign State status" (Para 303)
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Author's note: The cartoon — commissioned exclusively for this article — is by Yaakov Kirschen aka "Dry Bones"- one of Israel's foremost political and social commentators — whose cartoons have graced the columns of Israeli and international media publications for decades. His cartoons can be viewed at Drybonesblog
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David Singer is an Australian Lawyer, a Foundation Member of the International Analyst Network and Convenor of Jordan is Palestine International—an organization calling for sovereignty of the West Bank and Gaza to be allocated between Israel and Jordan as the two successor States to the Mandate for Palestine. Previous articles written by him can be found at: jordanispalestine.blogspot.com