Addressing the International Criminal Court. Legal and Political Challenges and Expectations

On 4 February 2015, Rosa Luxemburg Stiftung Regional Office Palestine (RLS) organized a Round Table entitled: “Addressing the International Criminal Court: Legal and Political Challenges and Expectations” with Dr. Valentina Azarova, Assistant Professor in the MA in Human Rights and Democracy Program at Birzeit University, and Mr. Shawan Jabareen, General Director of the Palestinian human rights organization “Al-Haq” and Vice-President of the International Federation for Human Rights (FIDH). Additionally, Katja Hermann and Wadieh Elhozayel from RLS spoke afterwards on the ascension of Palestine to the International Criminal Court (ICC). In the following read our interview with Shawan Jabareen.

RLS: Why did Palestine now move to the ICC?
Jabareen: I think Palestine is late. They were late for political reasons, because of pressure from outside like countries as the US and some European countries, but they moved now. The political solution closed before them and they felt that they have no other choice. Then the application to the ICC became popular among public opinion and everyone spoke about it. Everyone pushed for that move and the Palestinian leadership felt that they came to an end point: they felt like they have nothing to do with the negotiations and their people were pushing them, and that the Israelis continued committing crimes. After the Palestinian leadership’s consultations with civil society organizations and their own experts they felt this was the only move. It took time but eventually we built up enough support to move forward.
RLS: You were saying the pressure came from the people and from the politicians. Could you detail that a bit further?
Jabareen: Look, the pressure come from civil society, mainly, but also from the political parties such as Fatah for example. You can just imagine… the Fatah supporters and Fatah members used to meet with the Palestinian President Abu Mazen (Mahmoud Abbas) all the time and raise the issue of the ICC as a tool in their hands that was not being used. RLS: What are the Palestinian expectations to the ICC? Jabareen: Well, I think protection and some justice, and also preventive actions for the future. And maybe they think that Israel will potentially act differently after the application to the ICC and that this would affect their policies and practices.
RLS: Is this move to the ICC embedded in a strategy or is it – as it sometimes looks like – only the last try to change something with regards to occupation?
Jabareen: If you asked them, the officials, they would say it`s part of the strategy. But I have my doubts. It`s not part of the strategy, but when you look at the last few years, the accessions to different human rights and international laws, different international treaties, and also to the UN General Assembly in submitting also their draft resolutions before the Security Council, I think that is the way. They try to get out of the box that the Oslo Accords and the Israelis put them in. I think they lost their hope and you can feel that even inthe President’s recent words, saying that he is disappointed by the situation of the last few years and this is the main policy that he had and it failed. He got nothing. Unfortunately, we still have a lack of institutions, but there are some that tried to move. To be realistic, there is some competition between them, but I feel that there are some changes. Today they are more open.
RLS: How possible is it to have the ICC bid on the one hand and future negotiations with Israel on the other hand?
Jabareen: If they want to negotiate like before, then there is no hope for any change. But if they want to negotiate on the basis of international law, you have to build any negotiation initiatives or any peace initiatives on the basis of international law.
RLS: Which parts of the Israeli occupation apparatus can you bring in front of the ICC?
Jabareen: You can`t bring the occupation apparatus before the ICC, because at the end you bring individuals in front of the ICC. Persons, who are part of the crime, planned or committed the crime. There are some criteria for that. The international criminal law in general goes after persons, individuals, and not after the institutions or structures. In our case, you are talking about transferring civilians or settlers (to the occupied Palestinian territories) directly or indirectly. This is the crime we have to build on and here there are many people responsible for that. For instance, on the level of politics, it`s the policy makers. On the military level, there are individuals responsible for crimes and when it comes to business it`s the banks for example. You have to prove the relationship between the crime and the person. Here we will talk about the transferring of civilians, the displacement policy and the house demolitions for punitive reasons for example and the destruction of property without any military necessity. Further, you have for example military orders signed by specific military commanders and all these are crimes under the ICC statute, you can bring in front of the court. This is how we have to build, put, and classify our information.
RLS: How is it perceived within Palestine that there is a chance that the ICC will also bring up violations from the Palestinian side?
Jabareen: I think the door is open for everything and we said this clearly to our people and to the leaders. Before the leaders used to use that problem as a justification to not apply to the ICC, because they don’t want to criminalize the Palestinians, those who also killed civilians. It was only a justification from the leaders and from our point of view we said: “You have to proceed and you have to be principled, not selective,” and at the end they accepted that. And you have to know that they have asked all political parties to sign a declaration before they decided to proceed. And those parties which agreed included Hamas. Hamas signed the decision to apply and they said they show their will and they even said that even if the ICC goes after fifty of their leaders they are ready to pay this price to defend our people and for the interest of the victims. I think this is very important step. The only party which didn’t sign was Islamic Jihad.
RLS: What are you expecting from the international community in this matter?
Jabareen: Support. Firstly, that the ICC reevaluates their position regarding the previous long-time of negotiations and it’s now time for a new approach respecting the international law and taking the international law as a basis for any political initiative. It’s good for Europe to play its role instead of only watching and paying because the Europeans I think are good payers, but not good players. Now it’s time for them to play their role and have their own foreign policy regarding this conflict, not just following the US, and with that, Israel. What we got, from let me say the US umbrella, is only more settlements, more crimes, and more suffering. It’s time, for mainly Europe, to reevaluate its policy and to take a new approach and play a leading role on the basis on international law and taking actions. It’s time for actions. Israel, they can live without actions forever and they can continue their policies. With actions, things will completely change and here you can help, what is called the peace camp, even if there is no peace camp inside Israel until now. Because if Israel enjoys all the interests of the occupation, people in Tel Aviv enjoy water, enjoy the economy, enjoy even the view on the occupied territories, why would they want to step back? Here, by not taking actions you [Europe] or the international community are strengthening the right wing. But by taking actions, such as sanctions like banning settlement products and not allowing their import into Western countries, and by warning their own companies not to make any business with the settlements or with the occupation at a whole, this will, I think, create change.
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