[MENTION=25338]docmauser1[/MENTION], [MENTION=35713]pbel[/MENTION],
et al,
Many people make this argument; but it is by no means a "slam - dunk" conclusion. From a legal perspective, there is more to being a "state" than the layman generally considers; but the ICC, being a court, must consider.
Palestine was Recognized by the UN as a non-member State like Switzerland and the Vatican and has rights to the ICC, but you knew that, keep dancing!
Our honorable P F Tinmore would ask on the occasion "If it's a state, where're its borders?"
(COMMENT)
There are many questions that must be answered, the first of which is: Can the State of Palestine (such that it is) even accept the Jurisdiction of the Court?
- Is the territory of Palestine defined?
- Well, if you follow the finding of the International Court of Justice, during the deliberations on the Wall (Advisory Opinion), you might come to the conclusion that the territory (borders of Palestine) is undefined.
- Even if it were to be accepted that the boundaries for the State of Palestine are fixed (which the ICC theoretically cannot do) can the State of Palestine accept and delegate to the ICC, jurisdiction over the Israeli Settlements.
- Many would argue that the Oslo Accords give the Jewish State of Israel exclusive criminal jurisdiction over Israelis in the West Bank. The question becomes: Can the State of Palestine accept ICC territorial jurisdiction over the Israeli territory covered by the Oslo Accords, jurisdiction that Palestine does not hold now? (ie You cannot delegate authority you don't have.)
The entire argument that [MENTION=21837]P F Tinmore[/MENTION] makes on boundaries and borders comes into play, just to establish Jurisdiction; and which states (Israel and Palestine) qualify as an ICC state party. The Area "C" portion of the West Bank is under the jurisdiction of the Oslo Accords (binding).
Then, comes the two related issues of "leadership/Head of State" and "effective control." In the matter of "leadership/Head of State" there is confusion among the Palestinians. Does Palestinian Prime Minister Ismail Haniyeh have the authority as "Head of State" representing HAMAS, or does Palestinian President Mahmoud Abbas, also Chairman of the Palestinian Authority really hold the position of "leadership/Head of State?"
Palestinian President Mahmoud Abbas has two things going for him:
- Palestinian President Mahmoud Abbas is recognized by the UN as President of the State of Palestine.
- And as Chairman of the Palestinian Liberation Organization, he is recognized by the Arab League as the "sole legitimate representative of the Palestinian people in any Palestinian territory that is liberated."
Palestinian Prime Minister Ismail Haniyeh became Prime Minister after HAMAS won the Palestinian legislative elections of 2006. It appears that HE has effective control over Gaza.
Having said that, both the Palestinian Authority (Mahmoud Abbas) and HAMAS (Ismail Haniyeh) claim to be under occupation by Israel, which they claim, among other things, that is preventing the Palestinian in their "right of self-determination." The question becomes:
If Israel hold the "right of self-determination" at bey, do either of the Palestinian principles (HAMAS or the PA) actually have effective control of the State of Palestine?
- If not, then which of the Palestinians Principles have "effective control?"
- How do you legally test for "effective control?"
Can the Palestinian Authority (Mahmoud Abbas) order HAMAS (Ismail Haniyeh) to accept an unconditional cease-fire; and be obeyed? If not, does that have an impact on the question of "effective control?"
These are just a couple of things that effect the ICC Prosecutor must consider.
Finally, can HAMAS and PIJ Representatives, as EU designated terrorist Organizations, and Palestinian Authority (Mahmoud Abbas) all sign on behalf of Palestine, the petition before the court. What impact will that have, the Court becoming the prosecutor on behalf of EU and US designated terrorist organizations?
Most Respectfully,
R