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December 27, 2018 9:11 am

Electing the Palestinian Authority’s Attorney-General to the ICC’s Nominations Committee for Judges

avatar by Alan Baker / JNS.org

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An aerial view of the Temple Mount in the Old City of Jerusalem. Photo: Wikimedia Commons.

JNS.orgThe election of the Palestinian Authority Attorney-General, Dr. Ahmad Barak, to serve as a member of the “Advisory Committee on Nominations” of judges on the International Criminal Court (ICC) — if it were not so serious — could be seen as comical. The move cannot but invoke the ancient Latin maxim “ovem lupo commitere,” or in its literal version, “to set the wolf to guard the sheep.”

This perhaps sums up the absurdity to which respected international institutions, and particularly the United Nations and the ICC, have descended. Sadly, they have permitted themselves to be abused and manipulated by an irresponsible Palestinian leadership intent on hijacking international organizations for obvious and blatant political purposes.

The election of a Palestinian representative to the judges’ Nominations Committee — as unwise and ill-advised as it may be — is indicative of a far wider and more serious problem facing the ICC, with the admission of what purports to be “The State of Palestine” as a party to its Statute.

By any international, legal, and factual criterion, this is nothing more than a political fiction invented and given prominence by the United Nations General Assembly and bequeathed to the ICC. There exists no sovereign Palestinian state, and there exists no sovereign Palestinian territory over which the ICC could exercise its jurisdiction.

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The acceptance in 2014 of the “State of Palestine” as a party to the 1998 Rome Statute of the ICC, and the issue of Palestinian status vis-à-vis the court, remain questionable and legally flawed, since membership of the Court, pursuant to its Statute, is restricted to states, and there exists no sovereign Palestinian state. The question therefore must be asked: how could a fictional non-state entity be accepted by the ICC as a state party to the Rome Statute, and how, therefore, could its representative be appointed to the nominating committee for judges?

The Palestinian leadership has little interest in the vision, aims, and purpose of the ICC, set out in the preambular provisions of its 1998 Rome Statute, so laboriously negotiated and drafted over many years by the international community. Nor are they interested in the detailed provisions of the Statute regarding membership, jurisdiction, admissibility, and the elements of crimes. To the contrary, their only purpose for involving themselves with and engaging the ICC is to utilize the Court politically in their campaign to delegitimize Israel and its leadership.

This has been stated by senior Palestinian leaders, and is especially evident in the 2014 Palestinian formal announcement of acceptance of the ICC’s jurisdiction “for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem.”

It is widely acknowledged that the issue of the final status of the West Bank areas of Judea and Samaria, as well as the Gaza Strip, is an open negotiating issue between the Palestinians and Israel pursuant to the Oslo Accords. These accords were countersigned by leading members of the international community (United States, EU, Russia, Egypt, Jordan, and Norway) and endorsed by the UN. They do not specify what the final status of the territories will be, and the issue remains open for negotiation between the parties.

Pending their final settlement, the territories cannot be regarded as Palestinian territories but as disputed territories, subject to a dispute-settlement process. Hence, any determination — whether by the UN, by any of its specialized agencies, or by the ICC — as to any form of Palestinian status of the territories, cannot be seen as other than an attempt to prejudge the outcome of the permanent status negotiations.

The fact that there exists no sovereign Palestinian state has been repeatedly acknowledged by the Palestinian leadership itself since their initial and still binding commitment in the Oslo Accords to withhold initiating or taking any unilateral step to alter the status of the territory pending the outcome of the agreed-upon permanent status negotiations.

The non-existence of a Palestinian state was even recently reaffirmed on December 22 by Palestinian chief negotiator and PLO Secretary-General Saeb Erekat, as reported by the Wafa Palestinian news agency. Commenting on a ruling by the Constitutional Court of the Palestinian Authority dissolving the Palestinian parliament, Erekat declared that dissolution of the parliament “is part of the transition from the period of the Palestinian Authority into the ‘State of Palestine’ period.”

However, this has not prevented the Palestinian leadership from advancing, through the institutions of the international community, a fictitious claim to statehood. Similarly, it has not prevented the international community from blindly accepting and advancing this parallel Palestinian attempt to bypass their negotiating commitment, and trying to achieve statehood unilaterally through international bodies.

Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and Israel’s ambassador to Canada. You can read a longer version of this article at JCPA.

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