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2015-02_dc

40 D+C Vol.42.2015:2 Ban Ki-moon, the UN secretary-­ general, has announced that the Palestinian Territories will be a party to the ICC from 1 April on. Is the matter thus settled? Yes, it is. Every state has the right to join the ICC, and the Palestinian Authority has taken this step. The only thing that might have been in question was whether the statehood of the Territories is acknowledged. But since the UN General Assembly decided to do precisely that on 4 December 2012, Ban’s decision did not come as a surprise, and 1 April results as the date of accession according to Article 126, Paragraph 2 of the Rome Statute, on which the ICC is based. So the ICC will have jurisdiction over Palestine from April on? Yes, but it actually already has such jurisdiction due to another legal procedure: on 31 December 2014, Mahmood Abbas, the Palestinian president, accepted ICC jurisdiction over the occupied Palestinian Territories in an ad-hoc declaration according to Article 12, Paragraph 3 of the Statute. This step was retroactive, taking force on 13 June 2014. There are precedents for retroactive accession, the Ivory Coast used this instrument for example. Therefore, the ICC now has jurisdiction over events that took place during the recent Gaza war. Binyamin Netanyahu, Israel’s prime minister, vehemently opposed the Palestinian Authority’s accession to the ICC. Is he afraid that the Court will sentence Israelis? Well, that would certainly still take a long time. First, there would have to be preliminary examinations, and then formal investigations. Suspects would have to be indicted and transferred to the court. In the meantime, Israel would certainly argue that there is no need for an ICC intervention because Israel’s military justice system deals with the relevant cases. This is how the British government is currently responding to allegations of torture during the Iraq war. In any case, with the new ICC jurisdiction the Middle-East conflict has now clearly an additional legal dimension. Is it really a war crime to build permanent settlements on occupied territory? According to the principles of interna- tional humanitarian law, no occupation force may impose permanent changes on occupied land. Accordingly, the Rome Statute considers the transfer of civilians to occupied territories a war crime. Now if you take a look at the current situation in Palestine, it is obvious that settlements, which are built to last and enjoy all sorts of support – including military protection, water supply and tax exemptions – are not merely campsites. Of course, the ICC jurisdiction does not start before 13 June 2014. The ICC can only consider settlements that were set up after that date. Should settlements continue to be built as they have been so far, however, the ICC could argue in a few years time that there is a settlement pattern that fits the war-crime definition and start investigations accordingly. In any case, there are more obvious cases which may Drew/AP-photo/picture-alliance Palestinian President Mahmood Abbas addressing the UN General Assembly in New York in September 2014. Sovereign action The Palestinian Territories are joining the International Criminal Court (ICC). Law professor Kai Ambos assessed this decision in an interview with Hans Dembowski. Interview Interview with Kai Ambos Debate

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