Quick Thoughts: Ardi Imseis on the ICC and Palestine

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Feb 22, 2021 Israel
The International Criminal Court (ICC) in Hague, Netherlands. Photo by Roman Yanushevsky via Shutterstock. The International Criminal Court (ICC) in Hague, Netherlands. Photo by Roman Yanushevsky via Shutterstock.

Quick Thoughts: Ardi Imseis on the ICC and Palestine

By : Ardi Imseis

[On 5 February 2021, the Pre-Trial Chamber of the International Criminal Court in The Hague, The Netherlands, ruled that “the Court's territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”, and further “determined that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.” Mouin Rabbani, editor of Quick Thoughts and Jadaliyya Co-Editor, interviewed Ardi Imseis, Professor of Law at Queen’s University and a former United Nations legal counsel, to get a better understanding of the context and implications of this decision.]

Mouin Rabbani (MR): If we could put the political dimensions of the International Criminal Court’s 5 February decision to the side for a moment, what is its legal significance, and were you expecting this ruling or a different outcome?

Ardi Imseis (AI): In short, the February 2021 ruling of the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) in the situation in Palestine is a very positive development from a legal standpoint. In order to appreciate this, it may help to briefly recount why and how the matter of Palestine now finds itself before the ICC.

As your readers are doubtless aware, during the course of Israel’s 53-year “temporary” presence in the Occupied Palestinian Territory (OPT), impunity for violations of international law, including the commission of war crimes and crimes against humanity, has become endemic. As noted in 2019 by Professor Michael Lynk, United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, the situation prevailing in the OPT “is a bitter illustration of the absence of accountability.”

The upgrade of the status of Palestine to non-Member Observer State by the United Nations General Assembly on 29 November 2012 was a watershed moment in this regard. Among other things, it allowed the State of Palestine to accede to a host of international treaties open only to states, thereby paving the way for increased legal possibilities for redress. One of these treaties was the 1998 Rome Statute of the International Criminal Court, which Palestine acceded to in January 2015, thereby exposing its nationals and territory to the jurisdiction of the Court. While Israel is not a party to the Rome Statute, its nationals would still be subject to the Court’s jurisdiction in accordance with the Rome Statute if they were to commit proscribed crimes in the territory of a State Party. 

The Rome Statute established the ICC to hold individuals (not states) to account for the most serious crimes of concern to the international community, including war crimes and crimes against humanity. Among the many war crimes codified in Article 8 of the Statute for which there are reasonable grounds to believe have been committed in the OPT are: “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”; “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”; “intentionally directing attacks against civilian objects”; and grave breaches of the Fourth Geneva Convention, including “willful killing”, “torture or inhumane treatment”, “willfully causing great suffering or serious injury to body or health”, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”, “willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial”, and “unlawful deportation or transfer”. In addition, Article 7 of the Rome Statute proscribes the crime against humanity of apartheid. While the public record suggests that the vast majority of these crimes appear to have been or are being committed in the OPT by individuals acting on behalf of the Israeli occupying power (e.g. settlements, apartheid, use of lethal force during the 2018-2019 Gaza border protests, etc.), it also suggests that individual members of Palestinian armed groups may have committed proscribed crimes (e.g. means and methods of combat not capable of distinguishing between civilians/civilian objects and combatants/military objectives). 

On 20 December 2019, the Office of the Prosecutor (OTP) of the ICC concluded its four-year preliminary examination into the situation in Palestine. The Prosecutor, Fatou Bensouda, determined that “there is a reasonable basis to initiate an investigation into the situation in Palestine” under article 53(1) of the Rome Statute. More specifically, she indicated that she is satisfied that (i) “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”; (ii) “potential cases arising from the situation would be admissible”; and (iii) “there are no substantial reasons to believe that an investigation would not serve the interests of justice”. 

Instead of initiating an investigation, as she was entitled to do given the State of Palestine’s referral of the situation to the ICC on 22 May 2018, the Prosecutor decided to seek a ruling from the PTC “on the scope of the Court’s territorial jurisdiction in the situation in Palestine.” Specifically, she sought confirmation of her view “that the ‘territory’ over which the Court may exercise its jurisdiction…comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza” (e.g. the OPT).

At this stage of the proceedings, therefore, the issue before the PTC was very narrow and specific. It wasn’t, as many media outlets appear to suggest, whether the Court can or cannot exercise jurisdiction in the situation in Palestine. The Prosecutor was of the view that “the Court does indeed have the necessary jurisdiction in this situation.” Rather, the question was merely about the territorial scope of the Court’s jurisdiction in Palestine. Or put another way, what territory constitutes the State of Palestine? On 5 February, the PTC decided, by a 2-1 majority, that the Court’s territorial jurisdiction in the situation in Palestine extends to the whole of the OPT  (e.g. the West Bank, including East Jerusalem, and the Gaza Strip), thereby confirming the Prosecutor’s view.

It is worth noting that before making its ruling on territorial scope, the PTC considered objections submitted by a number of amici curiae that Palestine could not be a State Party because it is not a state pursuant to general international law. In addition, these amici argued that the Palestinians have no criminal jurisdiction to delegate to the ICC because the Oslo accords bar the Palestinian Authority from exercising criminal jurisdiction over Israelis. As I have written elsewhere these arguments are not very convincing. As it happens, the PTC wisely refused to make any determination on these issues. It appropriately held that regardless of Palestine’s status under general international law, its accession to the Rome Statute was properly performed and was sufficient to bring its territory within the ICC’s jurisdiction. Mechanisms available under the Rome Statute for other States Parties to challenge the validity of Palestine’s accession had not at that time been invoked. The PTC held that it has no authority to review the outcome of Palestine’s accession, and that Palestine, having subjected itself to the terms of the Rome Statute, has the right to be treated as any other State Party.

MR: What is next for the ICC? What choices does it need to make and what are your expectations in this regard?

AI: The next step in the process is for the OTP to open an investigation into the situation in Palestine, with the knowledge that the scope of the Court’s territorial jurisdiction is the whole of the OPT. I am confident that this will be done, and it should not, in principle, be affected by the fact that the present Gambian Prosecutor, Fatou Bensouda, will be replaced by a British Prosecutor, Karim Khan, on 16 June 2021. This derives from the fact that so long as the Prosecutor is satisfied that there is a reasonable basis to initiate an investigation into the situation under Article 53 of the Rome Statute – which, as noted above, she has already done – the Prosecutor is required to open an investigation pursuant to both the terms of Article 53 of the Rome Statute and ICC jurisprudence. It is for this reason that the PTC noted in its ruling that although the Prosecutor has yet to announce the opening of an investigation into the situation in Palestine, “such an investigation has, in principle, already been opened as a matter of law.”

On choices of what to investigate, the Prosecutor has already indicated that there is a reasonable basis to believe that war crimes have been committed in the context of the 2014 hostilities in Gaza, the shooting of hundreds of civilian protesters at the Gaza border between 2018-2019, and in respect of the ongoing transfer by the occupying power of its civilian nationals into the OPT. Notably, these crimes are considered by the Prosecutor as “illustrative only", and without prejudice to the expansion of her investigation to account for other criminal acts. Therefore, depending on the evidence gathered by the Prosecutor, these can conceivably cover a much wider range of criminal activity. 

Of further note, once the Prosecutor decides to submit an application to the PTC for the issuance of a warrant for arrest or summons to appear – which is something she may do at any time after the initiation of the investigation – affected persons or States may challenge the Court’s jurisdiction. This would not be a duplication of the recent proceedings, but would be part of the due process rights of affected individuals and States that may be engaged in genuine domestic investigations and/or prosecutions of the suspected crimes at issue. This means that further jurisdictional questions may rear their head once again at some stage in the future, notwithstanding the PTC’s 5 February ruling. 

Another interesting point to note is that under the Rome Statute, States Parties are required, in accordance with the Statute, “to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. Given the Court’s dicta that an investigation has, in principle, already been opened in respect of the situation in Palestine, it will be interesting to see whether and to what extent the small group of States Parties that argued against the propriety of Palestine’s accession to the Statute (Australia, Austria, Brazil, Canada, Czech Republic, Hungary, Germany and Uganda), will react if ICC requests are made to them for cooperation. In this regard, despite their ostensible support for the ICC and its objectives, Australia, Canada, Hungary, and Germany were quick to issue statements reaffirming their view that, notwithstanding the ruling of the PTC, Palestine is not a State Party to the Rome Statute. This would suggest that they, and possibly some of the other rejectionist States Parties, are on a collision course with the ICC, together with their non-State Party allies in Israel and the United States. In this context, it bears recalling that Palestine enjoys the support and cooperation from the remaining 115 States Parties to the Rome Statute. 
There is no denying that the ICC, in particular Fatou Bensouda and officials working in her office, came under tremendous pressure to dismiss the preliminary investigation of the situation in Palestine.

MR: The ICC has come under massive political pressure to dismiss the Palestine case, yet has ultimately decided to move forward. Why do you think it has done so, and is the widespread celebration among Palestinians and their supporters justified?

AI: There is no denying that the ICC, in particular Fatou Bensouda and officials working in her office, came under tremendous pressure to dismiss the preliminary investigation of the situation in Palestine. The great length of time taken by the Prosecutor to complete her preliminary examination – which, incidentally, was relatively quicker than a number of other situations she’s handled – raised concerns within the human rights community that she might end up folding as a result. The height of this came when the Trump administration imposed unprecedented sanctions on her and some of her colleagues in an attempt to dissuade her from moving ahead with respect to the situations in both Palestine and Afghanistan. And yet, despite all of that, she seems to have remained unphased. I admit that I was among those who were worried that the pressure would be too much for her and her staff to bear. But in view of the thorough, careful, and deliberate manner in which she has proceeded in putting her request to the PTC for a ruling on the territorial scope of the Court’s jurisdiction in Palestine, and the positive result given by the Court on 5 February, these concerns have been assuaged.

It is hard to predict how things will unfold in the ICC’s handling of the situation in Palestine in the months and years ahead. And make no mistake, it will take time. But based on the endemic pattern of impunity that prevails in the OPT, and the knowledge that credible and good faith domestic prosecutions for the litany of war crimes and crimes against humanity that have occurred or are occurring there are not on offer, it should be self-evident that the PTC’s 5 February ruling is a very important and positive development. As to whether that is a cause for “celebration”, I think it is still too early to tell. After all, international law, including international criminal law, is not on its own capable of delivering Palestine and its people from the multilayered systems of oppression to which they have been subjected for decades. At the same time, there is little question that the ICC process does promise to deliver a modicum of justice and accountability at some point in the future. 

MR: What are the political implications of the ICC decision moving forward for the Palestinians, particularly in terms of the options available to them? 

AI: The political implications of the State of Palestine’s invocation of ICC jurisdiction are considerable. In the face of Israel’s illegal 53-year occupation of the OPT, the move towards the ICC represents an opportunity to finally impose some hard costs upon those individuals responsible for the continuing commission of war crimes and crimes against humanity in Palestine. It is difficult to overstate the importance of this. Even short of the issuance of arrest warrants and the commencement of trials, the very fact that the process has made it this far offers a number of advantages: at best, it adds pressure on Israel to do the right thing and reverse course of its own accord; at worst, it provides even more reason to demand concrete action by other states to ensure Israeli accountability in line with their own ostensible support of the ICC project.

The cynic may balk at this, and cite the defiant position maintained by Benjamin Netanyahu and his supporters who claim that the ICC is politicized and even anti-Semitic(!) for daring to make Israelis the subject of investigation. But merely two days after the PTC’s 5 February ruling, the Israeli press reported that the government of Israel has prepared a confidential list of past and present senior Israeli military and civilian officials, numbering in the hundreds, who may be arrested while on international travel as a result of an ICC investigation. One can only hope that, despite the hyperbolic and frenzied claims of the present Israeli political leadership, the message will have gone out to the many men and women charged with carrying out illegal orders in the OPT on a daily basis that they now do so at their own peril. More broadly, at a time when the very legitimacy of the State of Israel is under increased scrutiny on the world stage, none of this is positive news for it.

All will not be smooth sailing, however. As has been widely reported, the Biden administration has signaled a renewed desire to engage with Palestine following the disaster that was Trump. Among the issues on the table is a commitment to resume funding for UNRWA, and to examine the re-opening of the US consulate in occupied East Jerusalem and of a representative office for the Palestine Liberation Organization in Washington, DC. Because none of these things have actually been finalized, it is wholly plausible that pressure will be brought to bear on the Palestinians to withdraw their referral to the Court as a quid pro quo. Thankfully, the Rome Statute is silent on withdrawal of referrals. As such, States Parties do not appear to have the authority or power to withdraw a referral to the ICC once it has been made.
Jul 23, 2020 Lebanon
Lisa Hajjar By :
Lisa Hajjar

Quick Thoughts: Lisa Hajjar on Executive Excess in the United States

[In a highly unusual move considered illegal by many analysts, US President Donald Trump deployed federal forces to suppress demonstrations in Washington, DC, as well as Portland, Oregon. Insisting he possesses the authority to deploy such troops to any US city, critics have accused Trump of engaging in authoritarian behavior that exceeds his constitutional powers in order to divert attention from his catastrophic failures during the coronavirus pandemic and a faltering re-election campaign. Mouin Rabbani, editor of Quick Thoughts and Jadaliyya Co-Editor, interviewed Lisa Hajjar, Jadaliyya Co-Editor and Professor of Sociology at the University of California, Santa Barbara, to learn more about the historical and ideological context of the Trump administration’s executive excess.]

Mouin Rabbani (MR): The use of federal forces to suppress demonstrations in Washington, DC, and more recently Portland, Oregon, is seen by many as emblematic of the concentration of power by the White House, marginalizing Congress and transforming the Department of Justice into a tool that serves the personal agenda of the president. How is this different from previous campaigns such as COINTELPRO and the elimination of the Black Panther movement during the 1960s and 1970s, and why is it significant?

Lisa Hajjar (LH): President Donald Trump’s assertion of his executive authority to send heavily armed federal agents to US cities on the pretext that national security is imperiled exemplifies a particular view of presidential power. Although Trump is no theorist, he is advised by people, including Attorney General William Barr, who subscribe to the “unitary executive thesis”; they interpret Article 2 of the US Constitution, especially Section 2 (the commander-in-chief clause), as vesting the president with not just unitary but unilateral powers to control all executive branch agencies (i.e., the FBI, the Justice Department, the Department of Homeland Security, etc.), and the prerogative to make security policy decisions and issue executive orders as he sees fit. Furthermore, as the theory goes, any effort by Congress or courts to restrict the ways in which the president chooses to exercise this power would itself be unconstitutional.

What is happening now in Portland, Oregon, similar to what happened in Washington, DC, in June when Trump called in military units to break up demonstrations near the White House, is a case study of the unitary executive thesis in action. Trump is justifying his order to send federal agents into Portland and possibly to other “Democrat-controlled cities”—as though these were enemy territory—on the grounds that ongoing demonstrations against racism and police violence, and some graffiti and vandalism of federal buildings or statues (of historical racists), pose a “national security emergency.” This whole situation is obviously an effort by Trump to distract from the fact that his poll numbers are in freefall and growing sectors of the US public think his handling of the coronavirus pandemic has been an unmitigated disaster. What the current ludicrous and dangerous situation illustrates is that the unitary executive theory advances the position that the president can do whatever he wants because he is the president and because his office bestows this power upon him and him alone. 

In order to contextualize the contemporary manifestations of executive excess, let us take a trip down memory lane. The thesis of unitary executive power was conceived in the mid-1970s during the rise of the “new right.” Right-wing legal intellectuals wanted to expand—or in their view restore—the full powers and discretion of the presidency that had been clipped in the post-Watergate/post-Vietnam/post-COINTELPRO era when Congress imposed new checks, like the War Powers Act, and instituted stronger oversight mechanisms. 

At that time, Dick Cheney was a Republican member of Congress from Wyoming. He was adamantly opposed to the rollback of presidential power, especially in the realms of national security and foreign policy. Andrew McKay’s 2018 dark comedy biopic Vice dramatizes Cheney’s quest to figure out a way to reverse the rollback. In one telling scene, Cheney (played to perfection by Christian Bale) meets Antonin Scalia; this encounter is set in Scalia’s office sometime before President Ronald Reagan appointed him to the Supreme Court. When Scalia tells Cheney that the Constitution can be interpreted to allow the president to assert his powers without subjecting decisions to congressional approval or judicial oversight, Cheney’s normally emotionless face lights up.

In the 1980s, Reagan and his attorney general, Ed Meese, wanted to sidestep the Democratic-controlled Congress in order to do what they wanted at home (e.g., bar the Centers for Disease Control from issuing congressionally mandated information guidelines regarding HIV-AIDS) and abroad (overthrow the government of Nicaragua). In this witch’s brew, Cheney’s first opportunity to advance the unitary executive thesis occurred when Congress launched an investigation into the Iran-Contra scandal. The scandal was triggered by revelations that Reagan administration officials had defied the will of Congress by intervening in Nicaragua in support of a right-wing militia, the Contras, which were trying to overthrow the left-wing Sandinista government, and that they were funding this operation by channeling revenue from the clandestine sale of arms to the Islamic Republic of Iran to the Contras. The Iran-Contra investigative report was an indictment of executive malfeasance. Cheney authored a minority response protesting what he regarded as congressional overreach into the realms of national security and foreign affairs.

When Cheney served as President George H.W. Bush’s secretary of defense, he tried but failed to exclude Congress from having a say in the decision to wage the 1991 Gulf War. He got legal support for the view that the president has the unilateral power to decide whether to go to war from William Barr who was the head of the Justice Department’s Office of Legal Counsel. One of Barr’s other contributions to the unitary executive thesis during the administration of Bush Sr. was to author a legal memorandum on “the president’s snatch authority,” to provide legal justification for US rendition operations (i.e., abducting foreign suspects abroad and extralegally transferring them either to the United States, their home country, or a third country). 

When Cheney returned to Washington in 2000 as George W. Bush’s vice president, he made sure that top positions across the executive branch were filled by people who shared his enthusiasm for strengthening and insulating presidential power. They got their chance to put the unitary executive thesis into practice after September 11. Every aspect of the Bush administration’s “war on terror,” including the torture policy, forced disappearance, Guantanamo, CIA black sites, warrantless spying on citizens, and drone warfare was built with unitary executive thesis building blocks. Notice that I include drone warfare in this list. President Barack Obama inherited the “war on terror” and drone warfare became one of his signature modes of waging it. Thus, while the unitary executive thesis might have been cooked up by right-wingers, it has acquired a bipartisan complexion. Now Trump is playing with the blocks. 

MR: According to a recent article in Axios, the Trump Administration is “privately considering a controversial strategy to act without legal authority to enact new federal policies,” particularly with respect to immigration, and is relying on a recent opinion piece by John Yoo who, during the George W. Bush presidency, drafted legal opinions that promoted the use of torture, in order to do so. What is Yoo's argument, how might it be utilized by the White House, and what would the impact of such a strategy be? 

LH: Indeed, Yoo was appointed to the position of deputy assistant attorney general in the Bush administration’s OLC precisely because he was a proponent of the unitary executive thesis. (He held this position from 2001 to 2003.) He demonstrated his bona fides immediately after September 11. On 16 September 2001, Congress passed the Authorization for Use of Military Force (AUMF), which granted the president a territorially unbounded prerogative to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Echoing Barr’s 1991 advice to Bush Sr., Yoo immediately wrote an official memo for the president telling him that, while congressional approval might be nice, he didn’t need any legislative authorization to go to war where he wanted or do what he wanted. “Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency.”

Yoo is most infamous for authoring the 1 August 2002, memo that “legalized” torture. But he left unitary executive thesis fingerprints all over the place. At the start of the “war on terror,” he wrote a memo arguing that the Geneva Conventions do not apply in Afghanistan because it is a “failed state” (a concept that does not exist in international law). In late December 2001, when Guantanamo was selected as the main site for long-term interrogation and detention, he co-authored a memo pitching the claim that US courts have no jurisdiction over this offshore base and therefore detainees have no habeas corpus rights (the right to appear before a judge or court to determine whether or not detention is lawful). In early January 2002, he wrote another memo arguing that Geneva Convention protections are inapplicable to people whom the president has declared to be “unlawful enemy combatants” because he thought (incorrectly) that the Geneva Conventions only apply as a matter of reciprocity in conflicts with other states. 

When Yoo’s classified legal reasoning on these matters was exposed in 2004, it was resoundingly condemned by legal experts, bar associations, and human and civil rights advocates. But he was neither cowed by condemnation nor schooled in the errors of his ways. In many public events after his memo-writing cover was blown, he was called to task for arguing that the president has the right to authorize torture, but he stood firm in his view that the president can do whatever he deems appropriate and necessary. In a 2005 debate with Notre Dame University law professor Doug Cassell there was an exchange that was highly illustrative of Yoo’s unshakable thinking. Cassell asked, “If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?” Yoo replied, “No treaty.” Cassel pressed him on this position and Yoo replied, “I think it depends on why the President thinks he needs to do that.” 

What makes Yoo’s resurrection as a presidential advisor by Trump so alarming is that he is sanctioning and encouraging the unfettered exercise of executive power by someone whose legal deviancy will go down in history as unparalleled by even the worst former occupants of the White House.