Palestine and the Arab World

Arab democracy and resistance

Archive for August 2014

Bensouda on Palestine and the ICC

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Abbas: Palestine not to recognize Israel as Jewish stateGiven the situation stands as Fatou Bensouda outlines below, and the decision to sign up to the Rome statute is with the PA leadership then what are we to expect?


Fatou Bensouda: the truth about the ICC and Gaza

Under the laws of the Hague court, my office can only investigate alleged war crimes in Palestine if it grants us jurisdiction in its territory. It has not done so.

Has the international criminal court avoided opening an investigation into alleged war crimes in Gaza due to political pressure, as suggested in an article published in the Guardian earlier this week? The answer is an unequivocal “no”. As prosecutor of the ICC, I reject any suggestion of this in the strongest terms.

When an objective observer navigates clear of the hype surrounding this issue, the simple truth is that my office has never been in a position to open such an investigation due to lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.

The Rome statute, the ICC’s founding treaty, is open to participation by states. The prosecutor can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the statute.

This means that the alleged crimes committed in Palestine are beyond the legal reach of the ICC, despite the arguments of some legal scholars that fundamental jurisdictional rules can be made subject to a liberal and selective interpretation of the Rome statute. They appear to advocate that as the object and purpose of the ICC is to end impunity for mass crimes, the court ought to intervene, even where clear jurisdictional parameters have not been met. This is neither good law nor does it make for responsible judicial action.

The Palestinian Authority sought to accept the jurisdiction of the ICC in 2009. My office carefully considered all of the legal arguments put forth and concluded in April 2012, after three years of thorough analysis and public consultations, that Palestine’s status at the UN as “observer entity” was crucial – since entry into the Rome statute system is through the UN secretary general, who acts as treaty depositary. Palestine’s status at the UN at that time meant it could not sign up to the Rome statute. The former ICC prosecutor concluded that as Palestine could not join the statute, it could also not lodge an article 12-3 declaration bringing itself under the ambit of the treaty, as it had sought to do.

In November 2012, Palestine’s status was upgraded by the UN general assembly to “non-member observer state” through the adoption of resolution 67/19. My office examined the legal implications of this development and concluded that while this change did not retroactively validate the previously invalid 2009 declaration, Palestine could now join the Rome statute.

That Palestine has signed various other international treaties since obtaining this “observer state” status confirms the correctness of this position. Nonetheless, to date, the statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration following the November 2012 general assembly resolution. It is a matter of public record that Palestinian leaders are in the process of consulting internally on whether to do so; the decision is theirs alone and as ICC prosecutor, I cannot make it for them.

By virtue of the nature of the court’s mandate, every situation in which the ICC prosecutor acts will be politically fraught. My mandate as prosecutor is nonetheless clear: to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality.

Whether states or the UN security council choose to confer jurisdiction on the ICC is a decision that is wholly independent of the court. Once made, however, the legal rules that apply are clear and decidedly not political under any circumstances. In both practice and words, I have made it clear in no uncertain terms that the office of the prosecutor will execute its mandate, without fear or favour, where jurisdiction is established and will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity. My office’s approach to Palestine will be no different if the court’s jurisdiction is ever triggered over the situation.

It is my firm belief that recourse to justice should never be compromised by political expediency. The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities. This, we will never allow.


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August 30, 2014 at 4:04 pm

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Does this short film look familiar?

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August 25, 2014 at 4:19 pm

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How come we count the ‘rockets’ fired by Palestinians but not bombs, shells and Drone strikes by Israel?

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I listen to and read the news every day.  Inevitably the reports read like football results.  “Four more rockets fired by Hamas” and “seven locations hit through the night by Israel”. Does this way of reporting only confuse me?  Some extremely heavy-duty bombs are being dropped on Gaza.  The shelling at times is constant and there are always drones in the air.  Hamas’s military wing have home made ‘rockets’ which are met with Iron Dome.  


We all need to know exactly what weapons Israel are using in civilian built up areas.  There are restrictions of what can and cannot be used. Israel must be made to answer for its attacks, its choice of weaponry.  All international efforts must be focused around lifting the closure, opening Rafah and getting Israel’s leaders in front of the International Criminal Court.




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August 25, 2014 at 8:20 am

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All Palestinian leaders line up to refer to the ICC ….

Without delay, all Palestinian leaders must do what is necessary for to refer Protective Edge to the ICC.  What is at issue is the ultimate test of the ICC.

If the current siege involved less powerful countries – for instance some of those in Africa – the Prosecutor would have moved with haste.  So why is there a delay?

ICC Prosecutor Fatou Bensouda

All the documents must be drawn up, completed and signed.  Everything should be checked and double checked by International Lawyers and academics around the world in sympathy with the aims of the ICC and the process must be moved forward.

The Palestinian government of national unity are behaving in accordance with international law.  They have the right to draw upon the international apparatus of the ICC and Bensouda must move.  The question of jurisdiction must be sorted out immediately so that there can be no come-back.  Israel will challenge everything.  We all know this.  Justice is not acceptable to Israel but it must be the standard for every other state.  So international teams – experts from around the world – must step up to the mark along with the Red Cross, Amnesty, Human Rights Watch and the process moved forward.

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August 23, 2014 at 9:19 am

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Blair the compassionate …

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‘He should be in the Middle East, not the UK’: Peace envoy Tony Blair blasted for throwing surprise birthday party for wife Cherie’s 60th at their £6 million mansion – as Gaza death toll passes 1,050

Tony Blair

The above headline might be stretching the truth but at least Tony is harmless when he is throwing trifle around at his wife’s birthday party.  Just keep the lunatic away from the matches!

Organising a bun fight that cost disgusting amounts of money is the measure of Blair. The man is a disgrace. He is no different to Assad and Mubarak. The difference between Blair and dictators like Ben Ali is that Blair could not get away with it. He sees nothing morally questionable about those leaders that have been overthrown. Most certainly he sees nothing questionable about Zionism. This is the same man remember who took Britain to war in Iraq and murdered thousands and thousands. This is the same man who will do interview after interview telling the world that he acted in good faith on the Iraq issue.

The crisis of the West is expressed in the problem of Blair. He was “our” Prime Minister. He was our man in Number 10 and he was a liar and completely without any compassion for the Palestinian people.

Read more:

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August 21, 2014 at 5:00 pm

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A dangerous game …

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Gaza Siege

Mark Regev has made the statement that ‘if one side violates the peace agreement then the other is no longer bound by that agreement’. He speaks as though Israel has a record of honouring agreements with the Palestinians. Israel has no such record. Israel has not honoured peace agreements of the past just as it has not honoured UN resolutions or international human rights law. Where the Palestinians are concerned, Israel feels it has the right to operate well outside law. The international community has seen this approach to international law take shape over the past 65 years.   Why should Israel change its approach now? Israel will continue its violations for as long as it feels it can do so with absolute impunity, which of course is guaranteed by its US backers. It is that simple.

The sustained bombing and destruction of Gaza has created twenty-six miles of rubble. All the facilities, sustaining personal and social life have been destroyed. Very little remains. Homes, hospitals and schools have all been destroyed. This means lifting the closure is not an option for Gaza. The closure has to be ended otherwise Gaza cannot go on. Or at least this is the thinking of Israel. Without opening the Port of Gaza, without opening the international border at Rafah, and without opening Gaza to exports and imports there can be no peace. Without any sort of future, there will remain only the conditions of slow death. No state has the right to impose such conditions on another people. This was why free Europe fought Hitler.

Were Israel steeling land and water in Europe or the Americas we would be having no debate about resistance.   Imagine that Hitler had have won in 1945 and the UK had have been occupied in just the way that France was occupied we would have seen all hell being let loose.  There would be no compromise with any occupying power on whatever basis.  Why then do we expect something different from the Palestinians when the whole of Gaza is closed off and bombed? No one should ever have to accept an occupation, whether the occupation is of a state or not. An occupation is an occupation.  It runs against every instinct of international justice.  The British would  unleash hell at the mere sniff of an occupation; so why should we demand something entirely different from the Palestinians? Why do we forget that it is the Israelis who moved in on Palestinians over sixty years ago and have never stopped its outrageous acts of land theft every since?  Is it only nice white folks with clipped British accents that have the right to resist injustice?  

The devastation in Gaza is in every direction

Israel is demanding the demilitarization of Gaza. It demands that every Arab state in the region abandons resistance because these are the conditions of Israeli security. So Israel continues its policies of arming to the hilt but all around it there must be no weapons.   This is after the Middle East has been given sixty-six years of hell. Sixty-six years of an aggressive colonial setter campaign that has been merciless. Land and water facilities have been confiscated with greed that respect no one.  No people would agree to these demands. When these demands are rejected, the destruction starts all over again and Mark Regev comes on Al Jazeera with the same mindless statements. Lies have become the standard line for these statements.  No one believes a word Mark Regev says.  Some areas in Gaza, along the security fence have sustained almost constant shelling from the air, land and sea. Incursions are daily.  No one should have to live in these conditions.  Drone attacks never stop. But Palestinians refuse to give up. In doing so, they have the respect of all free people. What do the Israelis have? It would seem the boycott will be the answer to that question. Homemade ‘rockets’ go off and the Iron Dome intercepts and more destruction follows. The world watches this cycle and does nothing. Yet with current technology everyone sees everything and nothing escapes the frame of global collective memory. It is not just the Palestinians that Israelis need to keep their eye on …

Israel is hated everywhere, not because of religion or any other irrelevance. Israel is hated because it kills Palestinians with complete impunity. Israel shows absolutely no sense of common humanity. Yet Israel wonders why it is seen as a state set apart from all others. Israel is a Sparta, a war state that communicates through violence. The idea is of course that it speaks with its bombs as it speaks with its leaflets, always telling the Palestinians to move on. The Palestinians will move at one point but it will be back to their 1948 villages and towns and if Israelis do not like living next door to their Arab neighbours then they can move on, back to the United States and Europe. Palestinians will stay on their land no matter how many bombs are dropped on them …

UNWRA claims more Palestinians have been made homeless during this 2014 siege than at any other time since 1967. Over two thousand have been murdered, over eighty percent of which are women and children. Schools have been destroyed and UN workers murdered along with Red Crescent ambulance men and international journalists. The Geneva Convention has been waived aside as the populations of Jabaliya and Beit Lahiya with absolutely no consideration of what is just and right. It is this impunity that will bring the downfall of the state of Israel because Israel will go too far. They now use death as a form of coercion and they are teasing out one almighty response from the whole of humanity. The game Israel is playing is unbelievably dangerous; it puts the whole world at risk and makes ordinary routine life for Palestinians pure hell. But at some point the game will be discontinued as it has on many occasions in the past.

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August 20, 2014 at 7:51 am

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International Criminal Court

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Hague court under western pressure not to open Gaza war crimes inquiry
Potential ICC investigation into actions of both the IDF and Hamas in Gaza has become a fraught political battlefield
Julian Borger, diplomatic editor
The Guardian, Monday 18 August 2014
The international criminal court has persistently avoided opening an investigation into alleged war crimes in Gaza as a result of US and other western pressure, former court officials and lawyers claim.
In recent days, a potential ICC investigation into the actions of both the Israel Defence Forces and Hamas in Gaza has become a fraught political battlefield and a key negotiating issue at ceasefire talks in Cairo. But the question of whether the ICC could or should mount an investigation has also divided the Hague-based court itself.
An ICC investigation could have a far-reaching impact. It would not just examine alleged war crimes by the Israeli military, Hamas and other Islamist militants in the course of recent fighting in Gaza that left about 2,000 people dead, including women and children. It could also address the issue of Israeli settlements in the Palestinian territories, for which the Israeli leadership would be responsible.
The ICC’s founding charter, the 1998 Rome statute (pdf), describes as a war crime “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies”.
Also at stake is the future of the ICC itself, an experiment in international justice that occupies a fragile position with no superpower backing. Russia, China and India have refused to sign up to it. The US and Israel signed the accord in 2000 but later withdrew.
Some international lawyers argue that by trying to duck an investigation, the ICC is not living up to the ideals expressed in the Rome statute that “the most serious crimes of concern to the international community as a whole must not go unpunished”.
John Dugard, a professor of international law at the University of Leiden, in the Netherlands, and a longstanding critic of Israel’s human rights record, said: “I think the prosecutor could easily exercise jurisdiction. Law is a choice. There are competing legal arguments, but she should look at the preamble to the ICC statute which says the purpose of the court is to prevent impunity.”
In an exchange of letters in the last few days, lawyers for the Palestinians have insisted that the ICC prosecutor, Fatou Bensouda, has all the legal authority she needs to launch an investigation, based on a Palestinian request in 2009. However, Bensouda is insisting on a new Palestinian declaration, which would require achieving elusive consensus among political factions such as Hamas, who would face scrutiny themselves alongside the Israeli government. There is strong US and Israeli pressure on the Palestinian leader, Mahmoud Abbas, not to pursue an ICC investigation.
Western pressure on the ICC to stay away from the issue has caused deep rifts within the prosecutor’s office. Some former officials say the Palestinians were misled in 2009 into thinking their request for a war crimes investigation – in the wake of an earlier Israeli offensive on Gaza, named Cast Lead – would remain open pending confirmation of statehood. That confirmation came in November 2012 when the UN general assembly (UNGA) voted to award Palestine the status of non-member observer state, but no investigation was launched.
Bensouda initially appeared open to reviewing the standing Palestinian request, but the following year issued a controversial statement (pdf) saying the UNGA vote made no difference to the “legal invalidity” of the 2009 request.
Luis Moreno Ocampo, who was prosecutor at the time of the Palestinian 2009 declaration, backed Bensouda, saying in an email to the Guardian: “If Palestine wants to accept jurisdiction, it has to submit a new declaration.”
But another former official from the ICC prosecutor’s office who dealt with the Palestinian declaration strongly disagreed. “They are trying to hiding behind legal jargon to disguise what is a political decision, to rule out competence and not get involved,” the official said.
Dugard said Bensouda was under heavy pressure from the US and its European allies. “For her it’s a hard choice and she’s not prepared to make it,” he argued. “But this affects the credibility of the ICC. Africans complain that she doesn’t hesitate to open an investigation on their continent.”
Moreno Ocampo took three years to make a decision on the status of the 2009 Palestinian request for an investigation, during which time he was lobbied by the US and Israel to keep away. According to a book on the ICC published this year, American officials warned the prosecutor that the future of the court was in the balance.
According to the book, Rough Justice: the International Criminal Court in a World of Power Politics, by David Bosco, the Americans suggested that a Palestine investigation “might be too much political weight for the institution to bear. They made clear that proceeding with the case would be a major blow to the institution.”
Although the US does not provide funding for the ICC, “Washington’s enormous diplomatic, economic and military power can be a huge boon for the court when it periodically deployed in support of the court’s work,” writes Bosco, an assistant professor of international politics at American University.
In his book, Bosco reports that Israeli officials held several unpublicised meetings with Moreno Ocampo in The Hague, including a dinner at the Israeli ambassador’s residence, to lobby against an investigation.
A former ICC official who was involved in the Palestinian dossier said: “It was clear from the beginning that Moreno Ocampo did not want to get involved. He said that the Palestinians were not really willing to launch the investigation, but it was clear they were serious. They sent a delegation with two ministers and supporting lawyers in August 2010 who stayed for two days to discuss their request. But Moreno Ocampo was aware that any involvement would spoil his efforts to get closer to the US.”
Moreno Ocampo denied that he had been influenced by US pressure. “I was very firm on treating this issue impartially, but at the same time respecting the legal limits,” he said in an email on Sunday. “I heard all the arguments. I received different Oxford professors who were explaining the different and many times opposing arguments, and I concluded that the process should … go first to the UN. They should decide what entity should be considered a state.”
He added: “Palestine was using the threat to accept jurisdiction to negotiate with Israel. Someone said that if you have nine enemies surrounding you and one bullet, you don’t shoot, you try to use your bullet to create leverage.”
A spokeswoman for his successor, Fatou Bensouda, rejected allegations of bias in the prosecutor’s choice of investigations. “The ICC is guided by the Rome statute and nothing else,” she said. “Strict rules about jurisdiction, about where and when ICC can intervene should be not be deliberately misrepresented … Geographical and political consideration will thus never form part of any decision making by the office.”
The French lawyer representing the Palestinians, Gilles Devers, argued that it was for the court’s preliminary chamber, not the ICC’s prosecutor, to decide on the court’s jurisdiction in the Palestinian territories. Devers said negotiations were continuing among the Palestinian parties on whether to file a new request for an investigation, even though he believed it to be unnecessary in legal terms. Ultimately, he said, the outcome would be determinedly politically.
“There is enormous pressure not to proceed with an investigation. This pressure has been exerted on Fatah and Hamas, but also on the office of the prosecutor,” Devers said. “In both cases, it takes the form of threats to the financial subsidies, to Palestine and to the international criminal court.”
Among the biggest contributors to the ICC budget are the UK and France, which have both sought to persuade the Palestinians to forego a war crimes investigation.

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August 19, 2014 at 9:23 am

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