Palestine’s legal tool in fighting with Israel

On June 26, the government of Palestine deposited the  instrument of  adoption of the amendments to the Rome Statute to the president of the Assembly of States Parties (ASP) of the International Criminal Court (ICC), practically opening the way for this international organisation, which is based in the Dutch city of The Hague, to investigate and prosecute  the crime of aggression. The States Parties to the International Criminal Court came together in the Ugandan capital city of Kampala in 2010 to amend the constituent instrument of the ICC, that is, the Rome Statute, which had been first approved in 1998. During the meeting, they added amendments to the Statute according to which the crime of  aggression was defined as one of the four crimes included under the jurisdiction of the ICC in addition to war crimes, crimes against humanity, and the crime of genocide. Meanwhile, conditions for the activation of the court’s jurisdiction on those perpetrating the crime of  aggression were also determined.

In 1998, the drafters of the Rome Statute had included the crime of aggression under the jurisdiction of the ICC, but due to pressure from warmongering world powers, the states signatory to the statute preferred the jurisdiction of the ICC not be exercised with regard to the crime of military aggression and set conditions for the activation of the ICC’s jurisdiction on this crime in order to avoid being arraigned by the court for a long period of time. The first obstacle in this regard was that the crime of aggression had been left without any definition in the Rome Statute. The definition of this crime, which was a legal requirement for enforcement of the court’s competence in this regard, had been made conditional on holding the revision conference which was scheduled to be held in Kampala in 2010. During the 1998 and through the Rome Conference in which the statute of the ICC was adopted, war crimes were explained in the statute in detail. However, once again, in order to appease the big powers, the countries’ right to consider reservations for enforcing the court’s jurisdiction in this regard was accepted in the form of conditions, which would hold water for a number of years to come. For example, France signed in to the Rome Statute with reservation about competence of the ICC for seeing into war crimes. However, concerns about and opposition to the inclusion of the crime of aggression among those crimes which came under the competence of the ICC was so high that no definition was offered for the crime of aggression, as a result of which a model like that presented for war crimes was not formulated for it.

War crimes constitute a retrospective approach to war. In other words, war crimes are that kind of criminal behavior, which is realized within framework of an armed conflict by any one of the parties involved in that conflict, regardless of the motivation and the reason behind that war and conflict. In fact, even in the midst of a legitimate war, like a defensive war, some behaviors and violation of certain principles of international humanitarian law are considered as war crime. The principles of humanitarian law depict the minimum levels, which should be respected in any war, both legitimate and illegitimate, and their violation would result in criminal liability.

However, the crime of aggression constitutes a prospective approach to war. The crime of aggression, actually, criminalizes illegitimate war. It goes without saying that generalizing criminal responsibility of individuals to the stage which predates war could provide more deterrence. Here, the use of military force without good reason is considered as a crime. It is obvious that big global powers, which deploy their forces to all corners of the world and embark on military intervention in other countries through various justifications, should be very concerned about the military aggression being considered a crime as a result of which, they would naturally try to create obstacles to prevent this.

More than being concerned about war crimes, big powers are concerned about their leaders being prosecuted on charges of warmongering.

This is why the authors of international criminal law believed that approving the definition of the crime of aggression in Kampala was as important as approving the Rome Statute itself and considered it as a turning point in the history of international criminal justice. According to Kampala amendments, the crime of aggression has been defined as planning, preparation, initiation or execution of the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.

The second condition for enforcement of the ICC’s jurisdiction over the crime of aggression was approval of the amendments by 30 member states in order to make those amendments binding. A deadline was considered for this purpose, which ends in January 2017. While a few months still remain before that deadline is met, the government of Palestine has adopted the Kampala amendments, thus, realizing another condition for the enforcement of the ICC’s jurisdiction over the crime of aggression and paving the way for the achievement of this goal by 2017.

The government of Palestine has proven up to the present time that it is good in legal war and the use of legal principles as a war weapon against Israel. Last year, the government of Palestine acceded to the International Criminal Court, thus extending the court’s jurisdiction to crimes committed by Israeli forces in the territory of the Palestinian government, including the Gaza Strip, especially with regard to crimes committed against the people of Gaza in the war launched by Israel in the summer of 2014, and also with respect to Israel’s occupationism and construction of new settler units in the West Bank. At present, Palestine is going through the preliminary examination phase and the ICC prosecutor is evaluating legal conditions to initiate an investigation into crimes committed against Palestinians.

This article was written by Mohammad Hadi Zakerhossein for Ian Review on July 7, 2016. Mohammad Hadi Zakerhossein is Intern at the Office of the Prosecutor, International Criminal Court
& PhD Student in International Criminal Law University of Tilburg, Netherlands.