Photo Credit: Wikipedia
Fatou 0. Bensouda and the ICC HQ in the Hague

On Tuesday, May 22, an entity calling itself the “State of Palestine” will submit to the Office of the Prosecutor at the International Criminal Court (ICC) at the Hague a referral on the “Situation in Palestine.” Fatou Bom Bensouda, a Gambian lawyer and international criminal law prosecutor, has served as the International Criminal Court’s chief prosecutor since June 2012.

As a party to the Rome Statute, this “State of Palestine” is “exercising its right to refer to the Office of the Prosecutor the commission of war crimes, crimes against humanity, and other crimes for immediate investigation.”

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According to a press release issued by the PLO on Monday, the referral covers “all the Israeli crimes and violations committed / to be committed against the people of Palestine in the past, present, and future.” Most notably, this referral will cover “crimes associated with the Israeli colonial settlement regime in the Occupied West Bank including East Jerusalem.”

And so, the process that began on April 1, 2015, when the Palestinian Authority requested to join the ICC, has paved the way for its ability to sue Israel three years later for “war crimes.”

Said “war crimes” are twofold: the settlement enterprise, which the PA argues “encompasses all policies and practices designed to forcibly transfer Palestinians and allow for and perpetuate the unlawful transfer of Israeli citizens to the occupied territory and facilitate their continued presence there, including planning, construction, expansion, maintenance, security and development of settlements,” as well as the blockade on the Gaza Strip, where Israel has dismantled all of its settlements 13 years ago.

It would be interesting to discover if the ICC would be prepared to look into the legal status of the Israeli settlements based on the Geneva Convention which bans an occupying state from transferring its civilian population into the occupied area. The last internationally recognized sovereign in Judea and Samaria as well as in Gaza was the British government, which in May of 1948 abandoned the area, leaving it without a recognized sovereign government.

Jordan and Egypt ruled over those territories for 19 years without international recognition, and then the area was taken away by Israel in June of 1967. So that the fundamental requirement of the Geneva Convention regarding the transfer of civilians to an occupied area, namely that it would be torn away from a sovereign power, is missing from the equation. Israel’s rule over Judea and Samaria is in dispute, much as Jordan’s rule there used to be.

If the ICC were to show intellectual honesty in this case, it could end up ruling that the Israeli settlements are not a violation of the convention and therefore not at all a war crime.

Of course, by going to the ICC the PA is violating the Oslo Accords, once and for all, the very accords which gave it its authority to govern in the first place.

It could get interesting.

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