Thursday, July 18, 2013

Palestinian Statehood, The International Criminal Court, and The Rome Statute


Introduction:

Due to the heavy Israeli influence (through powerful Zionist lobbyist organizations) on the United States Congress, which impacts domestic law and foreign policy, to include billions on billions in annual foreign aid packages issued by the United States government to the nation-state of Israel, Palestine has been a continuous field of study for me.  I do not think it does the Palestine-Israel issue “justice” to analyze Palestine’s status of statehood according to so-called international law in the age of capital globalization without first understanding the historical usage of international capital, Zionist and Christian Zionist, in establishing the modern nation-state of Israel as a military hegemon in the Near-Middle East region and ensured an international political coalition to hinder the official international recognition of Palestinian statehood.  In order to offer that background of historical development which I consider imperative to understanding the limited Palestinian position on the international stage, especially concerning statehood and international law, I provide links to previous papers that I have written on the subject in order to establish a historical timeframe on Palestine:

Liberal Policies of the Ottoman Empire Concerning Immigration and Foreign Land Purchasing


The British in Palestine: The Exploitation of the British Empire


Zionist Historical Documents - Herzl "What is a State", Balfour Declaration, Faysal-Weizmann Agreement


Historical British Documents on Palestine: Churchill White Letter, Peel Commission Report, British Policy Letter 1939


Palestine: The Usurped Non-State


Current Legal Status of Palestine under so-called International Law:

On November 29, 2012 the United Nations General Assembly voted to grant Palestine the status of Non-Member State observer status.  The decision to seek Non-Member State observer status through a General Assembly vote which neutralized U.S. veto power came after “a failed bid to achieve full UN membership in 2011” due greatly in part to the threat of a United States United Nations Security Council Veto [1].  The 2012 General Assembly vote on Non-Member Observer State status for Palestine “passed 138 to 9 with 41 abstentions”, with the United States and Israel, of course, voting against the proposal [2].  The vote “upgraded Palestine’s status without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people” from the previous recognition “as an observer entity in 1974” prior to the UN recognition of the Palestinian declaration of independence in 1988 [3].  

On the day following the historical UN Vote in November of 2012 “Israel declared plans to expand settlements in the West Bank and East Jerusalem” [4].  These settlements are largely viewed as a violation of international law by many members of the United Nations General Assembly.  Why does Israel (and thus, the United States) attempt to block and impede Palestinian efforts for Palestinians to achieve non-member state status or actual UN Member State status?  One of the main reasons is “concern in Israel that non-member state status would empower Palestinian officials to seek recourse at the International Criminal Court” and that “Palestinians could use the forum in order to bring action against Israel for what they view as violations of international law regarding their treatment in the West Bank and Gaza, including war crimes and the construction of Jewish settlements” [5].

The Question on Whether Palestine is a State:

I tend to agree that, as far as can be established under naval blockade and “restrictions on the movement of Palestinians within the West Bank”, that Palestine is a state [6].  I agree with Professor Quigley’s points that Palestine declared statehood in 1988 and the United Nations responded to that declaration, that many United Nations General Assembly member states recognize and support Palestinian statehood, that there are no other claimants to the Gaza Strip and the West Bank, and that “sovereignty devolved upon the Palestinian people when the British Mandate ended, thereby establishing a “continual statehood” for the Palestinians” [7].  Considering the historical developments of the Arab population of Palestine before and after the establishment of the internationally recognized state of Israel, and the international prevention of a recognized Palestinian statehood member status in the United Nations, I question the justice of the inactivity of the International Criminal Court based on a flimsy rejection using article 12 (3) of the Rome Statute:  “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question” [8]. 

Article 5 of the Rome Statute declares that the International Criminal Court has jurisdiction over crimes of genocide, crimes against humanity, war crimes, and the crimes of aggression [9].  Anyone who takes the time, without political, ethnic, or religious bias, to review Israeli actions toward the Palestinian territories and population over the past 15 years, to include the creation of illegal settlements, can clearly see that the Palestinians have reason for requesting international jurisdiction under the International Criminal Court.  The problem for the Palestinians remains to be the lack of protection and constant vulnerability to Israeli military aggression due to the legal terminology of article 12(3) of the Rome Statute which insists on statehood for consideration, while Palestine is denied both recognized statehood and International Criminal Court Jurisdiction due to greater political and economic powers preventing it.

We have already discussed the (always) looming threat of the U.S. United Nations Security Council veto (on behalf of Israel) preventing official recognition of Palestinian statehood, and this is not the only political ‘blockade’ in recent history that has been implement by the United States and Israel.  In 1989, the Palestinian Liberation Organization “applied for membership in the World Health Organization (W.H.O.)” only to be rejected after “the United States informed the W.H.O. that if Palestine were admitted as a member state, the United States would withhold funding.  At the time, the United States contributed one fourth of the W.H.O. budget.” [10].

As for the response by Robert Weston Ash to Professor Quigley’s argument that Palestine should indeed by recognized as a state by the International Criminal Court, I can only say that Ash is obviously pro-Israeli in ideology and used the most trivial ‘he said/she said’ points, along with weak terminology twisting, against Quigley’s strong historical references [11].

Conclusion:

Being prevented from internationally recognized statehood by the United States and Israel, and second-hand state actors and NGOs with economic ties to both, what rights or duties do the Palestinian people actually have?  They are internationally isolated and basically ignored by the international community while forced to incur the most economically damaging, humiliating, and oppressive policies instituted by the state of Israel, who is heavily funded by the by the United States.  If there is any chance of true international justice for Palestine, perhaps it is time to reassess the concept that “much of international law can be applied and enforced only by states” that are recognized by full membership in the United Nations [12]. 

International law, whether in the United Nations or the International Criminal Court, has an owner, and that owner is capital.  It clearly states as much on the International Criminal Court website in the admission that while “the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities” [13].  Wouldn’t it be very interesting to see a breakdown of that funding amounts and funding entities?  International organizations?  Corporations?  Individuals?  And other entities?

Notes:

[1]  Robert McMahon,  “Palestinian Statehood at the UN, Council of Foreign Relations,” Council on Foreign Relations, November 30, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[2]  Robert McMahon,  “Palestinian Statehood at the UN, Council of Foreign Relations,” Council on Foreign Relations, November 30, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[3]  United Nation General Assembly, “General Assembly Votes Overwhelmingly to Accord Palestine ’Non-Member Observer State’ Status in United Nations,  http://www.un.org/News/Press/docs/2012/ga11317.doc.htm

[4]  NPR staff, “Now What? The State of Palestinian Statehood,” NPR, December 1, 2012, http://www.npr.org/2012/12/01/166313016/the-state-of-palestinian-statehood

[5]  Robert McMahon,  “Palestinian Statehood at the UN, Council of Foreign Relations,” Council on Foreign Relations, November 30, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[6]  Robert McMahon,  “Palestinian Statehood at the UN, Council of Foreign Relations,” Council on Foreign Relations, November 30, 2012, http://www.cfr.org/palestine/palestinian-statehood-un/p25954

[7]  John Quigley, The Palestinian Declaration to the International Criminal Court: The Statehood Issue, http://lawrecord.com/files/35_Rutgers_L_Rec_1.pdf

[8] Rome Statute of the International Criminal Court, Article 12(3), http://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf

[9] Rome Statute of the International Criminal Court, Article 12(3), http://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf

[10]  John Quigley, The Palestinian Declaration to the International Criminal Court: The Statehood Issue, p. 3, http://lawrecord.com/files/35_Rutgers_L_Rec_1.pdf

[11]  Robert Weston Ash, Is Palestine a “State”?  A Response to Professor John Quigley’s Article, “The Palestine Declaration to the International Criminal Court: The Statehood Issue, http://lawrecord.com/files/36_Rutgers_L_Rec_186.pdf

[12] Gerhard von Glahn and James Larry Taublee, Law Among Nations: an Introduction to Public International Law 9 (2010), p. 104.

[13] International Criminal Court Website, About the Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx

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