Many people ask why it is that Mahmoud Abbas doesn’t sign the “Rome statute” to include the State of Palestine, now recognised by the United Nations as a sovereign body, in the ICC (International Criminal Court). Abbas’ threats to do so has led, as I posted below on http://different-traditions.com/wp-admin/post.php?post=1740&action=edit, the US State Department spokesperson intimating to journalists that the US would bloc Palestine’s attempt to become part of the ICC. The EU has followed the US position and even threatened Abbas to cancel a donor conference it was planning on Sept 1 to rebuild Gaza, if he pursued the ICC route.
Sa’ib Erekat, Palestine Chief Negotiator, has been pushing Abbas in this direction since some time (listen to leaked tape by opening link: http://www.awraqq.com/?p=18061 and going to the bottom of the page) . Now Hamas’ Khaled Meshaal has instructed Hamas’ chief negotiator in Cairo, Moussa Abu Marzouk to sign the document supporting Palestine’s application to become a member of the ICC. Abbas’ main line of argument for staying had been that it might endanger Hamas itself from being referred to the court. But now that Hamas, having taken legal advice is itself (as of 8th August 2014) now prepared to take that risk, the argument no longer stands. The PLO central committee, the Fatah central committee and all other Palestinian factions have all already agreed, and have signed the document.
Jordan is a signatory and a member of the ICC, and could easily have made a case on behalf of Palestine, but it hasn’t, also because of US/EU pressure. Now all Palestinian factions are decided to take their fate into their own hands and use the ICC weapon against Israel.
However, more generally, we have to consider that, as has been discovered by the lawyers pursuing crimes against humanity perpetrated by the Egyptian Junta, the ICC is politicised in the sense that it position is ambivalent and that the legal status of the Rome statute with respect to the functioning of the UNSC (United Nations Security Council), means that it is weak and will never be able to act independently, except with regard to minor war crimes figures which the US agrees should be prosecuted. If Abbas ran the gauntlet of US/EU threats, ICC judges might be leaned on to find some reason why application against Israel would be deemed to be outside its brief, as was discovered by the lawyers pursuing the case of Egypt.
There is a better avenue for redress on war crimes and crimes against humanity and that is “Absolute Universal Jurisdiction”. Which involves pursuing the perpetrators of war crimes and crimes against humanity everywhere in local courts. Another legal term for this is ‘erga omnes’ (Lat.: towards all), which involves rights or obligations which are owned towards all, and are statutory rights distinguished for instance from a right based on contract, which is only enforceable against the contracting party. In international law this becomes a legal term describing obligations owed by states towards the community of states as a whole, expressing its need to prevent the breach of critical rights, typically including matters of piracy, genocide, slavery, torture, and racial discrimination. I detailed this on the following link:
Associated with this is pursuing cases in the ICJ (International Court of Justice), which is directly an arm of the UN and associated primarily with the disputes between nations, and therefore traditionally tied more to the administrative structure of the General Assembly rather than the UNSC. The ICJ has also recognised “Absolute Universal Jurisdiction” by precedent in the Barcelona Traction case, on which open link:
It is through the latter means that criminals like August Pinochet were arrested and other criminals like Tzipi Livni and Ehud Barak were pursued.
So when it comes to the ICC, so far it has looked more like a forum used by world powers to bring those war criminals they don’t like to justice. Nevertheless, the mere signing of the “Rome statute” could be a declaration of the coming of age of a united Palestinian government. Even if there are difficulties with the ICC, all the other avenues are still open.
Now Palestinian Justice Minister Salim Al-Saqqa confirms that indeed complaints will be lodged with the ICC on behalf of Palestine against Israeli leaders, and Palestinian Foreign Minister Riad Al Malki did meet with ICC officials on this score, although they did initially claim lack of jurisdiction, because the Rome statute still hasn’t been signed.