ICC Blues responses.

The response to this post has been far more immediate than usual ~ something I am profoundly grateful for.

So what do they say?

Hat tips to:

Avi Eshel who wrote:

They signed but did not ratify. They can lodge without being a state party under Art 12(3).

Article 12 Rome Statute of the International Criminal Court
Preconditions to the exercise of jurisdiction

3. 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. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

It just seems to me more than a little chutzpah for Israel to deny jurisdiction because they are not members of the court and then claim jurisdiction with the counter suit, on a technicality. Surely, the court would decide all or nothing. Besides much of the world would deride it as more [insert antisemitic smear here, if you must] lawyer tricks and the credibility of war crimes charges against the Palestinians would suffer.

Niall Lynch who wrote:

How so? Hamas runs Gaza, not Fatah. And Hamas has never been internationally recognized as a government. This is just nonsensical.

Precisely.  It has always been the Palestinian claim that the ‘state’ of Palestine includes Gaza. The Palestinian Authority and Hamas, both posture to be the legitimate government of both the West Bank† and Gaza. If the Palestinian Authority is not responsible because that have no control there, it destroys their claim under the Montevideo Convention to even be a sovereign state. Lose-lose for the Palestinians.

Diane Krief who wrote:

Do you know that a few of the NGOs who submitted a file to the ICC against Israel are affiliated to terrorist groups such as PFLP or to BDS?

Bizarrely, despite Hamas, together or separately with its military wing, the Izz ad-Din al-Qassam Brigades, and PFLP being considered terrorist groups by many countries, the ICC has been consulting with them on this case.

PLO Secretary-General Saeb Erekat, head of the ICC committee, admitted as much,

“This committee includes all the bodies of the Palestinian political spectrum without exception… We worked together as a team”. “Dr. Ghazi Hammad, for example, was elected as the committee’s spokesman… He is one of Hamas’s leaders. There were six Hamas members in the committee. Khalida Jarrar – may she be released [from prison] soon – represented the PFLP. I don’t want to go into the names, but I will just say that no [faction] was left out.”

So it is hardly a surprise that groups with affiliations with terrorist groups are on the list of Amicus Curiae ~ Friends of Court. To be fair that’s a long list and includes many on our side in the argument.

Tomer Ilan wrote:

Regarding ICC. Are you aware that part of their decision is to investigate possible Hamas war crimes?

He included two links: ‘What about Hamas?’: Fact-checking Israel’s response to ICC prosecutor’s call to probe war crimes (Haaretz) and Shurat HaDin: ICC giving PA immunity while going after Israel, Hamas (Jerusalem Post).

I must apologise to 5MFI readers but I didn’t read as far as Section 94 of her report. Clearly I wasn’t alone in this.

Is it reasonable to suspect that Bensouda buried it so deep to cover her hindquarters? Her expectation would be that by the time court would reach a decision the Hamas war crimes ‘investigation’ would be conveniently forgotten? Hamas in praising the ICC investigating Israel didn’t feel the need to defend itself from the charges.

For those who also didn’t read as far as Section 94

“there is a reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes of: intentionally directing attacks against civilians and civilian objects … using protected persons as shields … willfully depriving protected persons of the rights to fair trial … willful killing … torture or inhuman treatment … and/or outrages upon personal dignity”.

Shurat Hadin spoke about war crimes actually committed by the Palestinian Authority, especially incitement and Pay-for-Slay.

Neither article addressed the major point of the ICC Blues post. That is, the Palestinian Authority should be sued for Hamas crimes.

Someone commented in Facebook that the ICC hadn’t formally recognised Palestine as a state. Apologies but I have lost the link. If it was you let me know.

Many Israel supporters have made the claim that Palestine fails the Montevideo Convention test of a sovereign state‡. For this reason the ICC has no jurisdiction to accept the ‘State’ of Palestine’s referral. That will have to be decided.

However, for the time being, the ICC constantly refers to the State of Palestine in its documents. De facto recognition, at least.


† It is Five Minutes for Israel’s policy to refer to the area invaded, occupied and annexed by Jordan (1948-1967) as Judea and Samaria when referring to Israeli and in supposedly neutral media and the West Bank when referring to Arab claims.
‡ Montevideo Convention on the Rights and Duties of States 1933-4
The state as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with the other states.
David Guy Blogs at Five Minutes for Israel.

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