Minister for Prisoners’ Affairs
State of Palestine
Lastly I should like to thank you once more. I wish this meeting every success towards realizing justice, freedom and peace for our Palestinian people and our detainees in the prisons of the occupation.
2. The military courts’ procedures and fair trial standards.
3. The recent changes of the military courts system and amendments to military orders.
1. The military courts actually have geographic jurisdiction that is not limited to the occupied territories as required under international humanitarian law. The military governor extended the jurisdiction to include any country and the military orders can apply to anyone, not just Palestinians, if the person is suspected to be involved in any act that could be considered as a threat to the security of the Occupied Palestinian Territory or the State of Israel.
The second problem related to the military courts’ jurisdiction is the wide scope of the activities that are defined as crimes under military orders. It includes traffic, housing, land issues and not only serious security matters, according to the conditions of articles 64 and 66 of the Fourth Geneva Convention. All political activities are illegal since all Palestinian political parties are considered illegal under military orders, all student movements, etc.
2. The review of the procedures under the military courts system shows the discrepancies in terms of fair trial according to International standards. All documents are in Hebrew as well as the sessions, the interpretation is not professional, and the procedures between military orders and Israeli criminal law are discriminating. There is no time to present all the differences but we can state that military courts are not applying fair trial standards.
3. Thanks to local and International pressure in the last few years on military courts, some changes happened. For instance, the new amendment on the age level of who is considered a child was increased from 16 to 18. Now there is a special court for juveniles. The period of the first detention before being brought to the courts was shortened from 8 days to 4 days. All those changes won’t make a huge difference for the detainees, but nevertheless now the military courts take into consideration the age at the time of the commission of the act and not at the time of the decision.
I do not think, even after Palestine’s new status at the United Nations, that Palestinian prisoners have more options vis-à-vis the international courts system. The Rome Statute to access the International Criminal Court has not been ratified, and Palestine has yet to request full United Nations membership.
We could use the universal jurisdiction procedures according to the Fourth Geneva Convention, and actually human rights NGOs were considering this channel. For example, the Palestinian Centre for Human Rights brought a case of torture to the Spanish courts. Unfortunately, Spain changed its laws, as well as Belgium and the United Kingdom. We believe that political pressure was the main reason for these changes.
We also have the option of bringing the case of the prisoners to the International Court of Justice (ICJ) in a fashion similar to the Wall case. I think it would be better to take to the ICJ the whole question of “prolonged occupation” as suggested by the Special Rapporteurs Mr. John Dugard and Mr. Richard Falk.
Another option would be to set up a special tribunal for the Israeli-Palestinian conflict, like the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. This would be very hard to achieve since a decision of the Security Council is needed. The United States would veto the decision.
At the end, third States have a responsibility to open their legal systems for Palestinian victims to have access to justice.
As well, the Palestinian Authority could start changing the Palestinian legal system, especially after signing the Fourth Geneva Convention, the Convention against Torture and all other Human Rights treaties, so that we could practice universal jurisdiction and prosecute Israeli war criminals in front of Palestinian courts.
2. Art. 1 common to the Geneva Conventions enjoins all Sates to respect and to ensure respect for the Conventions.
On 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) “for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.” On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdiction were not met, arguing that Palestine had only been granted “observer”, not “non-Member State”, status by the General Assembly. The Prosecutor considered that the declaration “was not validly lodged” (report on preliminary examinations activities 2013, para. 236). However, the Prosecutor also said that “allegations of crimes committed in Palestine” could be considered “in the future” if the “competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …”. On 29 November 2012 the United Nations General Assembly – by 138 votes to 9, with 41 abstentions – decided “to accord to Palestine non-member observer State status” (General Assembly resolution 67/19 of 4 December 2012, para. 2).
With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been “upgraded” from a mere “observer” to a “non-Member State”. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the General Assembly. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the General Assembly resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its Government, can now not only trigger ICC jurisdiction by way of a declaration under article 12 (3) of the ICC Statute, but also directly accede to the ICC Statute (albeit without retroactive effect, cf. articles 11 (2), 126 (2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of article 12 (3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981), the new article 12 (3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent “ordinary” obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with article 12 (3) that I see.
First, article 12 (3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the “State” within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here, Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its article I, the Palestinian criminal jurisdiction is limited to “offences committed by Palestinians and/or non-Israelis in the Territory”. “Territory” refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a “single territorial unit” (art. IV declaration of principles 1993 [Oslo I]; article XI (1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.
To get around these limitations, one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (General Assembly resolution 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the Government of the now formally recognized State of Palestine. This indeed has been argued (Ronen, JICJ 12 (2014), 23), but it seems overly formalistic to distinguish, for the purpose of the representation of the Palestinian people and the underlying right to self-determination, between the PLO, the PNA and the Government of Palestine (tripartite approach). Be that as it may, it seems more plausible to question the jurisdictional limitations produced by Oslo II from the perspective of the ICC and the underlying criminal accountability claims. Can the ICC’s jurisdiction really be limited by bilateral accords? Does this not stretch the delegation theory of article 12 (3) too far? Can this theory really limit the Court’s jurisdiction once the door to this jurisdiction, so to speak, has been opened by the, in principle, jurisdictional sovereign, the bearer of the jurisdictional claim, i.e., the State of Palestine?
I would submit that Oslo II cannot limit the ICC’s jurisdiction, even on the basis of the delegation theory, for essentially three reasons. First, Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory, but only limited the exercise of this jurisdiction. In other words, pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis, but may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes. Secondly, Oslo was only meant to provide rules for a transitional period not exceeding five years. Because this period has expired and, in addition, the legal situation has radically changed (with the recognition of Palestinian statehood), Oslo can no longer operate as a restriction of Palestinian rights. In any case, should one consider that the triggering of ICC jurisdiction would violate pre-existing third party rights (in casu those of Israel under Oslo), the only limitation arising from the ICC Statute is the one of article 98 referring to cooperation with the ICC, in particular the surrender of suspects.
Secondly, the PNA would have to file a new declaration, since the 2009 Declaration must be considered void in light of the Prosecutor’s decision and the non-retroactive effect of General Assembly resolution 67/19. In other words, the General Assembly resolution changed the status of Palestine only ex nunc with a view to future Palestinian declarations (Zimmermann, JICJ 11(2013), 308-9). Here, another problem with Oslo arises, since article IX (5) of the Interim Agreement severely limits the PNA’s power to conduct foreign relations. However, it is not clear from this provision whether it also prohibits the triggering of international criminal jurisdiction. It is fair to assume that at the time of drafting nobody thought that such a possibility would ever arise. In any case, here again one could argue – with more reason than above – that the Government of Palestine cannot be bound by this provision, not having been a party to Oslo. Indeed, if this Government can accede to international treaties, as indeed it does, it is, a fortiori, entitled to lodge an article 12 (3) declaration.
Third, the question arises whether such a (new) declaration can have a retroactive effect. The 2009 Declaration sought retroactive jurisdiction reaching back to 1 July 2002, the date of entry into force of the ICC Statute. I would submit that such a retroactive effect is possible. This possibility follows from the delegation theory underlying articles 12 (3) and 11 (2). Article 12 (3) implies that it is the sovereign right of the State delegating its territorial jurisdiction to do so within the temporal parameters of the ICC Statute, i.e., going back, in principle, to the Statute’s entry into force. Article 11 (2) prohibits a retroactive effect of jurisdiction, but not with regard to (“unless”) the State “has made a declaration under article 12, paragraph 3”. Zimmermann’s argument that article 12 (3) is a different, indeed, ad hoc, form of triggering jurisdiction does not prove otherwise, since the very fact that article 12 (3) is such an exceptional channel to jurisdiction implies that the non-retroactivity rule of article 11 does not apply.
Further, the possibility of a retroactive effect is also confirmed by the ICC’s practice so far, accepting several article 12 (3) declarations granting retroactive jurisdiction. For example, the Declaration of Ivory Coast of 18 April 2003 referred to events since 19 September 2002, and the recent Declaration of Ukraine of 17 April referred to events from 21 November 2013 to 22 February 2014. Of course, in the case of Palestine, such a declaration cannot go further back than the actual recognition of statehood on 29 November 2012, since the authority to lodge it is premised on the existence of a State of Palestine.
Fourth, if such a declaration can only give jurisdiction with regard to events occurring after 29 November 2012 it will, ratione temporis, have to focus on crimes committed since that date. However, there may be an exception to this temporal limitation with regard to the possible criminalization of the transfer of settlers into the occupied territories. Such a transfer – as one of the occupying Power’s “own civilian populations” – clearly amounts to a war crime in international armed conflict (article 8 (2) (b) (viii), ICC Statute). Indeed, the systematic establishment of settlements creates faits accomplis on the ground, the very facts to be prevented by the primary international humanitarian law norms (articles 49 (6) GC IV and 84 (5) (a) AP I). Arguably, the settlement policy is the primary obstacle to the creation of a Palestinian State as a single, homogeneous territorial unit; thus, it touches upon the very essence of the primary international humanitarian law prohibition. Against this background, the still-existing dispute on the customary character of this provision (Cassese et al., International Law, 3rd ed. 2013, 80-1), apart from putting a heavy burden on the ICC (having to inquire whether article 8 (2) (b) (viii) is in line with customary international law), can hardly be an obstacle to adjudication here.
A more difficult question is raised by the character of the crime as a continuous or permanent crime. Could that imply that transfers anticipating the coming into existence of the State of Palestine would fall within the ICC’s jurisdiction? What is the decisive point in time to sever the jurisdictional link with regard to continuous crimes? There are quite a few theoretical answers to this question. One could focus on the commencement of the transfer and thus exclude all transfers which commenced before 29 November 2012. This is similar to the solution chosen by the States parties for the crime of enforced disappearance. They required – by footnote 24 to the elements of crime to article 7 (1) (i) – that the attack (as the context element of crimes against humanity) must have commenced after the entry into force of the Statute. Of course, the problem of the enforced disappearance approach is that it focuses on the context, not an individual element of the crime, and therefore is too restrictive. The other side of the coin is the question of what has to be “continuous”? In other words, what has to reach into the present or even the future? Is it the actual act (as proposed by article 14 (2) of the ILC Articles on State Responsibility), i.e., the transfer as such, or do its mere effects or consequences suffice? For reasons of space, this cannot be further explored here. In any case, these temporal considerations do not affect the Court’s jurisdiction over the ongoing settlement policy and practice.