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Palestine’s moment of truth for the International Criminal Court

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The State of Palestine’s ascension to the Rome Statute of the International Criminal Court offers the global tribunal a choice between two clear paths into the future. By launching a serious prosecution of Israel’s crimes against Palestinians, the court can begin to repair its tarnished reputation, restoring confidence in the impartiality of the justice it dispenses. Its failure to do so would confirm growing suspicions that it has little purpose beyond helping the world’s old empires police their former colonies.

The ICC already faced a crisis of legitimacy due to its narrow focus on African leaders. Its 21 cases have stemmed from the nine full investigations it has launched, each in Africa. This gross disparity in the court’s attention has sparked predictable discontent among member states of the African Union. At an emergency AU summit in October 2013, Kenyan President Uhuru Kenyatta, whose charges the court would dismiss 14 months later, called it “the toy of declining imperial powers.”

Meanwhile the court rejected numerous opportunities to defend Palestinians, even as Israeli encroachments on their land and attacks on their lives escalated. On January 22, 2009, four days after Israel’s first military onslaught against the besieged Gaza Strip ended, the Palestinian leadership filed a declaration accepting ICC jurisdiction. Then-prosecutor Luis Moreno Ocampo refused to accept it, claiming that Palestine’s observer status at the United Nations did not qualify it as a state.

Following another round of Israel-inflicted bloodshed in the Gaza Strip, the UN General Assembly voted overwhelmingly to afford Palestine non-member observer state status on November 29, 2012. The ICC’s new prosecutor, Fatou Bensouda, once again declined to open an investigation, arguing that the court could not treat Palestine’s new status retroactively for purposes of legal jurisdiction.

Last November, Bensouda blocked further investigation of killings by Israeli naval commandos of nine Turkish activists and one Turkish-American on a flotilla challenging Israel’s naval blockade of the Gaza Strip. She said that although her office’s preliminary examination found “a reasonable basis” to suspect war crimes, the deaths lacked “sufficient gravity” to merit further action by the court.

Defenders of the ICC may argue that the court faced substantial hurdles to establishing its jurisdiction in Palestine, particularly reluctance by Pres. Mahmoud Abbas to claim statehood at the UN and ratify the Rome Statute.  But its critics will note that many African governments joined the court under pressure from European donor countries, often as a condition for participation in the Cotonou Agreement, a trade pact offering duty-free access to EU markets.

Through their membership, Palestinians have withstood the opposite sort of pressure. In the United States, a major backer of the Palestinian Authority, Pres. Barack Obama signed an appropriations bill mandating an end of aid to the PA if the Palestinian leaderships files or “actively supports” a case against Israel at the ICC. And the PA’s tax revenues, collected by Israel as the occupying power, remain punitively frozen for months after Palestinians ratified the Rome Statute, crippling local administration and impoverishing families.

A legal system with a purview determined by a small number of the world’s wealthiest and most powerful governments, many of which have chosen to exempt themselves from it, through various forms of economic blackmail, hardly resembles a system of justice. If the arbitrary nature of the ICC’s jurisdiction, driven by the wiles of donor states and occupiers, cannot be blamed on the court itself, it can hardly be counted in its favor.

But despite these structural challenges, the ICC now has an opportunity to begin redeeming itself. With signed documents filed in the Hague, no legal barriers – or excuses – remain to obstruct an investigation and prosecution. Israel’s massacre of over 2,100 Palestinians, including more than 500 children, maiming of thousands more, and wholesale destruction of civilian homes and neighborhoods in the Gaza Strip lie only months behind us, and its construction of illegal settlements on Palestinian land continues at full speed in the West Bank. The way for the court to restore accountability is obvious. If it shirks its responsibility, the blow to its legitimacy will be devastating.

When I met Issam Younis, executive director of the Al Mezan Center for Human Rights, in his Gaza office shortly after the explosions ended last summer, I noticed his gentle, relaxed demeanor. Despite the killing of his father and mother-in-law, an employee, and untold extended family and friends over Israel’s 51-day bombardment and invasion of the Gaza Strip, he had fixed his eyes firmly on the future.

“Abbas only needs to sign the forms,” he told me when I asked him about the ICC. “We are ready to do the rest.”

For his sake, and the sake of countless other Palestinians grieving their losses and struggling to defend what remains of their land, I hope his optimism was well-placed. Supporters of the ICC should share this hope. The stakes for the system they champion could not be higher.

Joe Catron

Joe Catron is a US activist in Gaza, Palestine, where he works with Palestinian groups and international solidarity networks, particularly in support of the Boycott, Divestment and Sanctions (BDS) and prisoners' movements. He co-edited The Prisoners' Diaries: Palestinian Voices from the Israeli Gulag, an anthology of accounts by detainees freed in the 2011 prisoner exchange, blogs at joecatron.wordpress.com and tweets at @jncatron.

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48 Responses

  1. just on May 4, 2015, 10:05 am

    Thank you Joe.

    There has been and there is so much incontrovertible evidence available that it certainly does beg many questions about the ICC’s legitimacy. Only this morning there are damning reports from Breaking the Silence wrt last summer’s massacre.

    http://www.telegraph.co.uk/news/worldnews/middleeast/gaza/11580539/Israeli-soldiers-describe-losing-their-sense-of-morality-during-the-Gaza-conflict.html

    http://www.independent.co.uk/news/world/middle-east/fire-at-every-person-you-see-israeli-soldiers-reveal-they-were-ordered-to-shoot-to-kill-in-gaza–even-if-the-targets-may-have-been-civilians-10223427.html

    http://www.theguardian.com/world/2015/may/04/israeli-soldiers-cast-doubt-on-legality-of-gaza-military-operation (h/t oldgeezer)

    Coupled with the testimonies at the Russell Tribunal and evidence from other human rights organizations it seems impossible/inconceivable that the ICC will ignore this ongoing horror once again.

    • mohandeer on May 11, 2015, 9:20 pm

      Thank you “just” have read many of you posts and am glad for the efforts you put in. I personally don’t know how to put links in a post and rely heavily on other people’s IT skills.

      • annie on May 11, 2015, 10:11 pm

        mohandeer, do you know how to copy and paste? http://www.wikihow.com/Copy-and-Paste

        highlight text and copy it by clicking control (ctrl) and “c” on your keyboard. then go to another location (like our comment box) and click control and “v” and it will drop the copied text wherever you put it. again, to copy a link simply highlight the url at the top of your browser page click ctlr and c, and drop it (control and v) into the comment box. try it! it’s so easy.

        Ctrl+C (Copy) and Ctrl+V (Paste).

      • just on May 11, 2015, 10:23 pm

        You’re welcome, mohandeer. Welcome to MW.

        I’m quite sure that you’ll get plenty of help with linking. I’m not the best resource for any of that! All I know is to go to an article, copy the URL, then paste it to the appropriate place in your post. Others are obviously much more proficient than I am.

        Edit: I see that Annie has already helped you! Told you so!

      • mohandeer on May 13, 2015, 7:19 pm

        Thanks, have copied advice from email.

  2. zaid on May 4, 2015, 10:42 am

    I read the Breaking the silence report .
    it is horrifying.
    here is the website and you can download the whole report.

    http://www.breakingthesilence.org.il/

    • mohandeer on May 11, 2015, 9:22 pm

      As for “just” I thank you also for the links you provide, but am unable to reciprocate, have a catalogue of horrific apartheid, theft and genocide, but unable to post links, so please keep posting.

  3. amigo on May 4, 2015, 10:53 am

    Joe, thanks for this report.

    If the ICC again refuses to act in the interests of truth and justice, then the Palestinian people should declare the 2SS dead and proceed with seeking one man/woman , one vote .They will be left with no other choice.

    Lieberman has resigned and good riddance all though I say that with mixed feelings as there now remains the possibility that nietanyahu may have to bring herzog into his coalition and we all know that will lead to more of the same piss process and more illegal squats.

    1S , 1P, 1 V.

    • Kay24 on May 4, 2015, 11:16 am

      So now that Lieberman is out of work, what will he do?

      I am guessing he will slink back to the illegal settlements and either steal olive trees or syphon Palestinian water. Any bets?

      • David Doppler on May 4, 2015, 12:25 pm

        Hi Kay,

        Here’s a good report about Lieberman’s “announced” (but apparently not yet tendered) resignation.
        http://www.haaretz.com/news/israel/1.654931

        This coalition-building process is one amazing poker game, as Netanyahu’s deadline looms on Wednesday. Lieberman says he’s out, opening Foreign Minister to offer to Herzog, but is the resignation for real (announced but to-be-tendered)? Would Herzog take it, despite having consistently denied interest? Or is it a bluff to pull Bennett and Shas into line, to settle their bitter dispute over their respective slices of the pie of power and the direction of government policy and the Haredim. Without Lieberman, but with Shas, UTJ, Jewish Home (Bennett) and Kulanu (Kahlon), it’s a 61-59 razor thin majority unlikely to last very long at all. And with Lieberman out of government, he could rabble-rouse to the right in opposition to any Centrist move Netanyahu’s government might make to placate the US and international community. Kahlon has spoken against such a razor thin government – not likely to support any controversial reforms that are apparently his whole reason for being in government.

        Is Herzog ready to cut a deal to enter government in a last-minute, broad coalition? Or is he running a counter-proposal game under the surface, to pull away Lieberman, Kahlon and maybe Shas and or UTJ, leaving Netanyahu and Bennett to compete in a sort of fascistic opposition?

        Netanyahu, Herzog, Kahlon, Bennett, Deres, Lieberman, betting and bluffing, with Rivlin the dealer there to enforce a time-limit on Netanyahu’s efforts. High drama. Surprise endings possible.

      • amigo on May 4, 2015, 12:50 pm

        Kay, I got my info from AJ in Europe.

        They even interviewed an Israeli reporter –named Hoffman, (did not get his first name).

        As David suggests , there may be some shenanigans going on.We will see.

      • ckg on May 4, 2015, 4:44 pm

        So now that Lieberman is out of work, what will he do?

        The Sands Hotel and Casino can always use another experienced bouncer.

    • ckg on May 4, 2015, 11:40 am

      From ynetnews:

      Lieberman lashed out at the disappearance of the controversial nationality bill, which sought to legally define Israel as the nation state of the Jewish people, and determine that the right to national self determination in Israel belongs solely to the Jewish people. “Someone vetoed the issue and suddenly it’s off the agenda. The coalition does not reflect the position of the national camp. This government has no intention of overthrowing the Hamas regime,” he said.

      So who vetoed the nationality bill issue? Shas, or UTJ?

      • a blah chick on May 4, 2015, 12:37 pm

        Isn’t it interesting that the Israeli government want the world to recognize them as the Jewish state but they themselves do not. Funny that.

      • Hostage on May 5, 2015, 10:45 am

        Isn’t it interesting that the Israeli government want the world to recognize them as the Jewish state but they themselves do not. Funny that

        I wish that were true, but I’ve commented many times here in the past that there are already several other Basic Laws which constitutionally entrench the precept that Israel is a Jewish and democratic state and that the Knesset can adopt any law befitting Jewish values, even if it contradicts the certain clauses of the Basic Laws regarding Human Dignity and Liberty, Freedom of Occupation, & the so-called “aspirations” mentioned in the Declaration of Independence (i.e. equal rights under the law). In some cases, the liberal values of the Basic Laws in question only have prospective application going forward, since they contain explicit clauses that prevented any retroactive application to overturn existing (read discriminatory) laws, such as the ones on nationality and right of return. The latest draft Basic Law was included in the coalition agreements of the last Netanyahu government. It was mainly political grandstanding and racial incitement, but it would have removed any remaining illusions or pretensions.

      • Mooser on May 8, 2015, 5:36 pm

        I wish that were true…”

        Thanks for summarizing that Hostage. It is (at least for me) difficult to grasp the number of corners Israeli paints itself into while it tries to work all the angles.

    • mohandeer on May 11, 2015, 9:24 pm

      I heard that Herzog was not as psychotic as Netanyahu, maybe I’m wrong. ~With that superbitch railing against Palestinians wanting them all dead, Herzog could be a moderating influence.

  4. zaid on May 4, 2015, 11:15 am

    “It was during our first Sabbath. Earlier that day one of the companies was hit by a few anti- tank missiles. The unit went to raid the area from which they were fired, so the guys who stayed behind automatically cared less about civilians. I remember telling myself that right now, the citizens of Gaza, I really don’t give a fuck about them. They don’t deserve anything – and if they deserve something it’s either to be badly wounded or killed. ”

    source: breakingthesilence.org.il

  5. pabelmont on May 4, 2015, 11:18 am

    Well, yes, impossible and inconceivable that ICC should ignore. But, then USA has ignored CLIMATE CHANGE, a far, far, far worse matter involving all of human-kind (and all other life forms, what with ocean acidification, melting arctic and antarctic, clearing of tropical forests, etc.) rather than merely (as people who count only with numbers might say) 10 million (?) Palestinians.

    We are dealing with psychopaths here — people who ignore other life. Why should ICC be any different?

    • Keith on May 4, 2015, 5:23 pm

      PABELMONT- “We are dealing with psychopaths here….”

      One of the most difficult things for the average person to come to grips with is that most of our elites who struggle for power and care for little else are psychopaths of perhaps merely sociopaths. As such, our greatest threat and cause for concern comes not from foreign sources but rather from our own elites unto whom we are merely a means to an end or perhaps a threat. Pieces on a chessboard. Elite ambition may yet kill us all.

    • mohandeer on May 11, 2015, 9:29 pm

      Share you views, the US was overwhelmingly the major contributor to global warming and as with ratifying any commitments to war crimes and such like, they also refused to be bound by any kind of CO2 reduction or attempts to reduce global warming. I have heard people say terrible things like nuke the US and Israel and solve the World’s problems – how psychotic is that. Nobody is taking climate change seriously enough and I fear that any changes will be too little too late. Hope I’m wrong, but glad to see your post.

  6. Bumblebye on May 4, 2015, 2:55 pm

    “Insufficient gravity”, 10 dead, hundreds abducted and imprisoned, thousands in stolen money an goods, all in international waters. I suppose that potentially bodes well for the near victimless rockets lobbed from Gaza. Little if any payload, minimal damage, very few lives lost, minimal injuries = insufficient gravity. Same can’t be said for most Israeli crimes against Palestinians.

    • mohandeer on May 11, 2015, 9:31 pm

      The figure Israel has stolen with Obama’s blessing is put at approximately $8.7 billion. No wonder they can buy the best greedy politicians money can buy.

  7. Kathleen on May 4, 2015, 6:14 pm

    Clear, crisp piece. Thank you Joe. Hoping and praying that the ICC will act with integrity and at long last a real commitment to justice.

  8. just on May 4, 2015, 9:22 pm

    I am hoping that Hostage will weigh in…

    Does anyone here think that the report by Breaking the Silence will fortify the Palestinian case with the ICC?

    • Kathleen on May 4, 2015, 11:52 pm

      Would seem like it. Would be great to hear from the law folk

    • Hostage on May 6, 2015, 5:10 pm

      I am hoping that Hostage will weigh in… Does anyone here think that the report by Breaking the Silence will fortify the Palestinian case with the ICC?

      In my opinion, the moment of truth for the ICC on the subject of Palestine, from both a legal and moral standpoint, already came (in 2003) and went (in 2009). I’ve discussed writing a series of articles about that situation with Phil, but he and Adam are naturally reluctant to publish stuff from anonymous authors – and I prefer to stay that way. It’s supremely ironic, but I happen to live in the one country on Earth that has taken over the Middle East Peace Process, lock, stock, and barrel, where the Supreme Court has also ruled that it’s a criminal offense under the Patriot Act to advise a terrorist organization about the non-violent methods it can use to pursue a peaceful solution for its grievances through the United Nations or the international courts:

      They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.
      Held:
      The material-support statute, §2339B, is constitutional as applied to the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations. The Court cannot avoid the constitutional issues in this litigation by accepting plaintiffs’ argument that the material-support statute, when applied to speech, should be interpreted to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. [i.e. “specific direction” is not a relevant legal consideration] That reading is inconsistent with §2339B’s text, which prohibits “knowingly” providing material support and demonstrates that Congress chose knowledge about the organization’s connection to terrorism, not specific intent to further its terrorist activities, as the necessary mental state for a violation.

      – Holder, Attorney General, et al. v. Humanitarian Law Project, et al.
      link to scribd.com

      The only reason it isn’t illegal to support the efforts of the PLO is because Obama issued a certification and waiver of the Anti-Terrorism Act of 1987, Public Law 100-204. I’ve noted that the PLO Delegation to the USA includes Mondoweiss stories in its Daily News Analysis. But now that they are coalition partners with Hamas, who knows? This is the same administration that prosecuted the Holy Land Charities folks and jailed them for life after it admitted during their first trial in 2007, that no foundation money had gone to any terrorist organizations; rather, some money went to the same zakat (charity) committees in Palestine that the U.S. Agency for International Development (USAID), the U.N., the Red Crescent and many NGOs used to distribute aid to the Palestinian community during the same period. They are also the same administration that warned federal employees that, unless they had both the proper security clearance and the need to know, it was a criminal offense for them to read classified material on Wikileaks (like everyone else on the Planet).

      A former Deputy Legal Advisor to the Israeli UN delegation, Nimrod Karin, actually complained a while back about the fact that the Palestinians had filed another retroactive Article 12(3) declaration:

      “To avoid forfeiting this option, the Palestinians (who are apparently avid readers of the international legal blogosphere) followed an advice tendered in the comments section to Kevin Jon Heller’s post over at Opinio Juris, and lodged the declaration a day before they submitted the instrument of accession.

      http://justsecurity.org/19301/establishment-international-criminal-tribunal-palestine-part-ii/

      Fortunately, all of the (not) guilty parties who offered advice reside outside of the USA. If you are interested in seeing my rebuttals to Nimrod Karin’s articles, and the sort of thing I’d like to expand upon here @MW, there’s plenty of information in my comments regarding the Opinio Juris article on the subject here: No, Going to the ICC Is Not “Lawfare” by Palestine, by Kevin Jon Heller http://opiniojuris.org/2015/01/22/no-going-icc-not-palestinian-lawfare/

      As for Breaking the Silence, there’s an article about their report that I’ve been commenting on here: http://opiniojuris.org/2015/05/04/breaking-the-silence-about-israels-assault-on-gaza/

      Long story short, I don’t think it’ll make a bit of difference to the Prosecutor. If she can ignore the findings of fact written by 14 ICJ Judges for more than a decade and still say that she is trying to determine if any crimes within the jurisdiction of the ICC have been committed, why should she weigh the eyewitness statements of some ordinary soldiers?

      • just on May 6, 2015, 5:44 pm

        Thanks Hostage. I was afraid that you might come to that conclusion. I understand it though~ once again, you make great sense.

        This is disheartening, to say the least:

        “It’s supremely ironic, but I happen to live in the one country on Earth that has taken over the Middle East Peace Process, lock, stock, and barrel, where the Supreme Court has also ruled that it’s a criminal offense under the Patriot Act to advise a terrorist organization about the non-violent methods it can use to pursue a peaceful solution for its grievances through the United Nations or the international courts.”

        The abomination and wholesale injustice wrt the Holy Land charities people is a stain that cannot ever be removed (nor should it be), though a Presidential pardon would be most welcome.

        Thanks for the links that you provided. I look forward to perusing them.

      • just on May 6, 2015, 6:31 pm

        I went over to Opinio Juris and learned a lot. You answered many of my questions, especially with this:

        “For its own part, Israel has turned down several offers from NATO and President Abbas to deploy an international peace keeping force in the Occupied territories.

        During the operation, Israel and its allies in the Security Council demanded that the UN delay taking even symbolic action, until after the IDF had been granted sufficient time to locate and destroy tunnels. But that shouldn’t have amounted to a state of necessity, since the IDF could have done the very same thing in peace and comfort on its own side of the border. FYI, contrary to popular misconception, the Gaza tunnels have primarily been used for smuggling and to circumvent restrictions on freedom of movement, not for making attacks on the territory of Israel or Egypt.”

        and this:

        “Israel is not a cop. It is a co-belligerent that has refused to implement UN Security Council and General Assembly resolutions calling for the immediate and unconditional withdrawal of its armed forces from the occupied Arab territories. It has refused to permit the deployment of a NATO or other international peacekeeping force in the Palestinian territories as well.”

        http://opiniojuris.org/2015/05/04/breaking-the-silence-about-israels-assault-on-gaza/

        I keep wondering why there is no peacekeeping force~ now I know. It’s somewhat surprising that you get some of the same lame arguments @ that site that one can find just about anywhere.

      • Hostage on May 6, 2015, 10:39 pm

        I was afraid that you might come to that conclusion.

        That’s unavoidable given the more than ample evidence. But it should be trivially easy for the Government of Palestine to get the Prosecutor’s bogus determination about the invalidity of the 2009 Article 12(3) Declaration overturned and have the Court itself request that the Office of the Prosecutor investigate all crimes committed in Palestine since July of 2002, including Operations Cast Lead, Pillar of Defense, and Protective Edge.

        Article 98 of the Rome Statute imposes a duty on the organs of the Court, including the Office of the Prosecutor, to respect agreements between member states and third party, non-member states. In 2009, the League of Arab States advised the Prosecutor that Palestine was a State with multilateral agreements on diplomatic immunity and extradition with several other States that happen to be ICC members, those now include Jordan, Comoros, Djibouti, and Tunisia. Some of those relevant League of Arab States conventions entered into force in 1998, long before the Rome Statute itself ever came into force in 2002. FYI, the General Assembly adopted a resolution on Palestine’s observer status in 1998 which noted that it was a full member of several international organizations that are only open to membership by States, e.g. the Group of Asian States, the Group of 77, the Economic and Social Commission for Western Asia, and the League of Arab States. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/52/250

        The Government of Palestine simply needs to file a declaration accepting the compulsory jurisdiction of the ICJ for the purposes of the Genocide Convention under the auspices of UN SC resolution 9 (1946) and the optional protocol in Article 36 of the ICJ Statute. See http://www.un.org/ga/search/view_doc.asp?symbol=s/res/9%20%281946%29 and http://www.icj-cij.org/documents/?p1=4&p2=2

        FYI, if you are going to pretend to “consult the practice of the UN General Assembly”, like Ocampo or Bensouda did, then you should have already discovered that General Assembly Resolution 368 (1950) gives the Secretary General standing instructions to dispatch letters of invitation to all members of UN specialized agencies, like UNESCO, asking them to become State parties to the UN Genocide Convention. The General Assembly also convened a Diplomatic Conference of Plenipotentiaries in Vienna, much like the one that wrote and adopted the Rome Statute of the ICC. The Vienna Conference codified the UN Convention on the Law of Treaties. Articles 81-83 obligate the Secretary General to accept treaty ratifications, signatures, or accessions to that multilateral UN convention from any member of a UN specialized agency, because they all belong to a formally recognized “category of states”. Article 6 says that “Every State possesses the capacity to conclude treaties.” Article 5 says that the Law Of Treaties Convention applies to any treaty (like the Rome Statute) which is the constituent instrument of an internal organization. That’s particularly relevant, since the ICC Trial and Appeals Chambers have repeatedly cited that Convention and have reminded the Prosecutors that its rules govern any interpretation of the Rome Statute. For example, in its judgment of 13 July 2006 in the case of the Prosecutor v. Thomas Lubanga Dyilo, the Appeals Chamber held the following: “The interpretation of treaties, and the Rome Statute is no exception, is governed by the Vienna Convention on the Law of Treaties (23 May 1969)”. In his April 2012 letter, Ocampo acknowledged that:

        “The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies.”

        — All without noticing that several of them were subsidiary organs of the General Assembly itself, like the UN HRC, and one of them was a specialized agency mentioned in Articles 81 and 83 of the Vienna Convention on the Law of Treaties. He then proceeded to cite a completely inapposite paragraph from an informational pamphlet on the Practice of the Secretary General Acting as Depositary for Multilateral Treaties, while overlooking the two preceding sections in which it explained that the Secretary General does not need to consult the General Assembly at all in cases involving members of the UN specialized agencies.

        In addition, I’ve explained in the past that, decades ago, the General Assembly acknowledged the receipt of unilateral treaty declarations made by Palestine and Israel in line with the Minority Protection Plan contained in UN GA resolution 181(II) “C Declaration” accepting the compulsory jurisdiction of the ICJ in advance in accordance with a compromissory clause in Chapter 4: Miscellaneous Provisions” of that same subsection of the resolution. The rights in question are under UN guarantee and cannot be altered without the consent of the General Assembly.

        The ICC only has jurisdiction over the crime of genocide with respect to natural persons in accordance with Article 5 and 25 of the Rome Statute, while the UN Genocide Convention assigns responsibility for determinations of State responsibility to the ICJ. See for example Palestine Should Sue Israel for Genocide before the International Court of Justice, by Prof. Francis A. Boyle http://www.mediamonitors.net/francis1.html

        General Assembly resolution 67/19 stated that it was upgrading Palestine’s observer status on the bases of several new factors. Among other things, one of them was this: “Taking into consideration that the Executive Committee of the Palestine Liberation Organization, in accordance with a decision by the Palestine National Council, is entrusted with the powers and responsibilities of the Provisional Government of the State of Palestine,4 … 4 See A/43/928, annex” Note that numbered UN document was a PNC Declaration dated November 1988, NOT November 2012. So it is still a big mystery why the Prosecutor claimed the resolution had no retroactive effect. See the resolution http://unispal.un.org/UNISPAL.NSF/0/19862D03C564FA2C85257ACB004EE69B and the declaration http://www.un.org/ga/search/view_doc.asp?symbol=A/43/928

        Even the Secretary General’s after action report on the resolution indicated that the State of Palestine was already in existence in September of 2011 when it applied for UN membership: It [General Assembly resolution 67/19] also reaffirmed the right of the Palestinian people to self-determination and expressed hope that the Security Council would consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations.” — A/67/738
        8 March 2013 http://unispal.un.org/UNISPAL.NSF/0/0DFE97DB5A9A633185257B2D004943A7

        Unlike Bensouda, the UN did not claim the application had been “invalidly filed” or that a new application was required.

        Under the rules of customary international law, when the government of a country is recognized like that by another party, that recognition is retroactive in effect and validates all the actions and conduct of the government in question from the commencement of its existence. See for example:
        *Tinoco Claims Arbitration (Great Britain v. Costa Rica) (1923) 1 R.I.A.A. 369; link to untreaty.un.org
        *Oetjen v. Central Leather Co. , 246 U.S. Supreme Court 297 (1918);
        link to caselaw.lp.findlaw.com
        *Ti-chiang Chen, “The international law of recognition, with special reference to practice in Great Britain and the United States”, Praeger, 1951, “Introduction” page 4 and “the doctrine of the retroactive effect of recognition” starting on page 34 “Recognition of States” and the Chapter on the Doctrine of Retroactivity here: link to archive.org

        Ti-chiang Chen cites landmark cases from all of the major global systems of public international law.

        In fact, declarations made under the optional protocols of both the Statutes of the PCIJ and ICJ are customarily considered to be retroactive in effect. That practice dates back to a landmark decision in the Mavrommatis Concession cases involving – wait for it – the Mandated State of Palestine:

        The Court has established that declarations under the Optional Clause have retroactive force. In the Mavrommatis case the Court expressed the opinion that “ in cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to it after its establishment” . The Court carried further the analogy between an international agreement and mutual obligations created by declarations under the Optional Clause by stating that “ the correctness of the rule enunciated above is obvious since reservations made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seem to prove the necessity for an explicit limitation of jurisdiction”. Therefore, States that want to exclude disputes already existing at the time they make their declarations, need to formulate explicit reservations.

        — See Stanimir A. Alexandrov, “Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice”, Martinus Nijhoff Publishers, 1995, page 40 https://books.google.com/books?id=Zo2j2l-FfUsC&lpg=PA40&pg=PA40#v=onepage&q&f=false

        Some people mistakenly believe that the application of those customary rules mentioned in Article 21 of the Rome Statute only comes into play once an investigation is initiated, because of the subsection of the Statute in which the Article happens to appear, and that no one but the Prosecutor can make a decision to investigate. But there really is no such chicken and egg conundrum. The International Law Commission commentary on the Draft Statute for an International Criminal Court paragraph on “Applicable Law” noted that, in the draft statute adopted in 1993, the Commission had placed this article in the part dealing with jurisdiction. However, there is a distinction between jurisdiction and applicable law, and it seemed appropriate to place the article in the part dealing with the primary function of the court, the exercise of jurisdiction through a trial chamber. “But the article applies in relation to all actions taken by the court at any stage.” See page 27 http://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1994.pdf

        So Palestine can simply bypass the Prosecutor and advise the Court that a genuine dispute has arisen with the Prosecutors concerning the judicial functions of the Court under Article 12(3) and ask that it be resolved in accordance with “Article 119 Settlement of disputes”. That article also provides that disputes between Palestine and any other State can be referred to the ICJ.
        http://web.archive.org/web/20130310172833/http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm

        It is also possible, but probably more difficult, to file a complaint with the Presidency of the Court to have a Prosecutor removed from office under the terms of Article 46 of the Statute and Article 24 of the Court’s Rules of Evidence and Procedure for repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases. http://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf

        I could cite a long list of examples beside Palestine, but that subject deserves its own article.

      • just on May 7, 2015, 7:54 am

        Sincere thanks for your most excellent post, Hostage. I know that I have a tendency toward hope, and it seems from what you wrote that all is not lost.

        This seems pretty straightforward, for instance:

        “So Palestine can simply bypass the Prosecutor and advise the Court that a genuine dispute has arisen with the Prosecutors concerning the judicial functions of the Court under Article 12(3) and ask that it be resolved in accordance with “Article 119 Settlement of disputes”. That article also provides that disputes between Palestine and any other State can be referred to the ICJ.”

        I can only hope that further steps will be taken by Palestine, and that this attempt @ the ICC does not end there if this Prosecutor continues the legendary recalcitrance of the Court to pursue justice.

        (Hope that lots of Palestinians, Americans, and Israelis are reading…)

      • Hostage on May 7, 2015, 9:25 am

        “So Palestine can simply bypass the Prosecutor and advise the Court that a genuine dispute has arisen with the Prosecutors concerning the judicial functions of the Court under Article 12(3) and ask that it be resolved in accordance with “Article 119 Settlement of disputes”.

        That’s not going to happen by accident. The poor Palestinians in Gaza and the West Bank will probably have to start demonstrating and throwing shoes at pictures of officials again, like they did when the UN HRC vote on the Goldstone Mission report was first delayed. The government of Palestine explicitly reserved its right of retroactivity with respect to other crimes in its latest Article 12(3) Declaration and the “powers that be” in Israel and at the ICC should know that the issue of retroactivity all the way back to July of 2002 remains unsettled. See for example my comments to Dr. Daphné Richemond-Barak (Head of the International Law Desk at the International Institute for Counter-Terrorism, IDC Herzliya) @ the European Journal of International Law on that subject: “Double Duty at the ICC” http://www.ejiltalk.org/double-duty-at-the-icc/

        People have to be made aware of the fact that it has been the Prosecutors who have been sandbagging all along, ever since the 2009 Article 12(3) Declaration was initially filed and that they are the ones who have been delaying investigations into Cast Lead, Pillar Of Defense, Protective Edge and every other crime committed on the territory of Palestine since 2002 – not Abbas. But it does appear as if he is going to have to force the personnel of the Office of the Prosecutor to do their jobs.

        The General Assembly did NOT create the State of Palestine via its November 2012 resolution. It has always said that Palestinian statehood is a matter of self-determination and that it is not subject to the peace process or to any veto. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/55/87

        The Assembly was simply responding to the recommendation of the Security Council’s Committee on the Admission of New Members concerning the application of Palestine for admission to membership in the United Nations in order to implement that right:

        It was further stated that the question of the recognition of Palestinian statehood could not and should not be subject to the outcome of negotiations between the Palestinians and Israelis, and that, otherwise, Palestinian statehood would be made dependent on the approval of Israel, which would grant the occupying Power a right of veto over the right to self-determination of the Palestinian people, which has been recognized by the General Assembly as an inalienable right since 1974. Concerns were raised in relation to Israel’s continued settlement activities. The view was expressed that those activities were considered illegal under international law and were an obstacle to a comprehensive peace. … The view was expressed that the Committee should recommend to the Council that Palestine be admitted to membership in the United Nations. A different view was expressed that the membership application could not be supported at this time and an abstention was envisaged in the event of a vote. Yet another view expressed was that there were serious questions about the application, that the applicant did not meet the requirements for membership and that a favourable recommendation to the General Assembly would not be supported.

        Further, it was suggested that, as an intermediate step, the General Assembly should adopt a resolution by which Palestine would be made an Observer State.

        — S/2011/705, 11 November 2011 http://unispal.un.org/UNISPAL.NSF/0/097ACC6FFFF29D5785257949005D2A63

        People will have to protest against the Prosecutor’s intransigence too and call for their removal if need be. There was never any requirement for Palestine to join the Court in the first place. If you read the Security Council resolution 9 and Article 36 of the ICJ Statue in the links above, you’ll see that non-member states can either become permanent parties to the Statute of that Court; file optional declarations accepting that Court’s jurisdiction regarding a specific dispute; or file a revocable optional declaration with prospective application going forward. All of those can have retroactive effects too. I only used the case of the Genocide Convention and Article 119 to illustrate that these two Courts can’t employ a different birthday for the same State party and call that any kind of “resolution” to this dispute.

      • just on May 7, 2015, 10:06 am

        Thanks for your comments wrt Palestinian statehood. I also appreciated this very much:

        “People have to be made aware of the fact that it has been the Prosecutors who have been sandbagging all along, ever since the 2009 Article 12(3) Declaration was initially filed and that they are the ones who have been delaying investigations into Cast Lead, Pillar Of Defense, Protective Edge and every other crime committed on the territory of Palestine since 2002 – not Abbas. But it does appear as if he is going to have to force the personnel of the Office of the Prosecutor to do their jobs.” – See more at: http://mondoweiss.net/2015/05/palestines-international-criminal#comment-145975

        Abbas gets heaps of blame for lots of stuff. I tend to stay silent about it, because I cannot fathom the situation that Palestinians are in.

        It is important to note that on this, he is not at fault.

        “People will have to protest against the Prosecutor’s intransigence too and call for their removal if need be.”

        I’m ready.

      • Hostage on May 7, 2015, 5:26 pm

        Abbas gets heaps of blame for lots of stuff. I tend to stay silent about it, because I cannot fathom the situation that Palestinians are in.

        I think Palestinians backed the moves in the UN and ICC, but his time has come and gone too.

      • Hostage on May 7, 2015, 12:07 pm

        It’s somewhat surprising that you get some of the same lame arguments @ that site that one can find just about anywhere.

        The legal position of Israel is simply untenable, so even their allies in the legal profession have to divert attention away from the subject. Even the most distinguished ones employ the same shopworn hasbara and try to sow fear, uncertainty, and doubt. Here’s a load of crap by Eugene Kontorovich to the effect that the Court won’t be able to determine whether or not the settlements are in Palestine, the General Assembly resolutions mean nothing, & etc. and my reply: http://www.ejiltalk.org/settlements-territory-and-the-icc/

        After Palestine unexpectedly joined the ICC, on 31 Dec. 2014, he managed to get four canned articles just like that one published in as many major newspapers within 24 hours. The series of six or so Lawfare articles and Letters to the Editor at Just Security by the former Israeli UN Legal advisor and his circle of friends attracted a few comments, but there were no articles there containing the sort of material we’re discussing here, or anywhere else for that matter.

      • Hostage on May 7, 2015, 12:23 pm

        The abomination and wholesale injustice wrt the Holy Land charities people is a stain that cannot ever be removed (nor should it be), though a Presidential pardon would be most welcome.

        I was being facetious about the Obama administration in my earlier remarks. To me he pretty much does represent the fourth G.W. Bush term in office. But I wouldn’t get my hopes up about any pardons for the “guilty”, when we all know that he’s deliberately kept innocent people locked-up in Gitmo.

      • lysias on May 7, 2015, 2:00 pm

        we all know that he’s deliberately kept innocent people locked-up in Gitmo.

        Indeed. I am now reading the horrifying book Guantanamo Diary, by the Gitmo “detainee” Mohamedou Ould Slahi, who continues to be held in Gitmo despite a federal court having authorized his release. There are now no charges outstanding against him, but he continues to be held in the place where he was subjected to the torture he describes in his book, which reminds me of The Count of Monte Cristo. Americans used to sympathize people subjected to such outrages and to despise those who inflicted them. How we have changed!

      • just on May 7, 2015, 2:35 pm

        “To me he pretty much does represent the fourth G.W. Bush term in office. But I wouldn’t get my hopes up about any pardons for the “guilty”, when we all know that he’s deliberately kept innocent people locked-up in Gitmo.”

        I attribute many of his similarities to GW and the travesty that is Gitmo to Congress and their clueless and xenophobic constituents.

        I think/hope that he has a measure of goodness/fairness in him and that a pardon may come. That can be done completely independently of the irascible, dysfunctional Islamophobes on the Hill.

      • Hostage on May 8, 2015, 11:50 am

        I attribute many of his similarities to GW and the travesty that is Gitmo to Congress.

        Not at all. Obama could earn his Nobel prize by simply calling President Castro and advising him that there are some civilians at Gitmo who will require the assistance of the Cuban authorities after our withdrawal – and then order all of the US military personnel off the island.

        The military base at Gitmo has always been an exercise of Presidential power ever since the day that Teddy Roosevelt and Secretary of War Elihu Root turned the Teller Amendment into a legal nullity and dictated the terms of the new Platt amendment that subjugated Cuba and imposed a perpetual international servitude on the island regarding the lease of that naval base. https://history.state.gov/milestones/1899-1913/platt https://history.state.gov/milestones/1899-1913/roosevelt-and-monroe-doctrine

        The Platt Amendment, and other legal subterfuges like it, allowed the US to intervene militarily in the affairs of all the Latin American and Caribbean States to collect debts owed to foreign investors or to put down revolts against the abusive practices of corrupt American or other foreign-owned companies. Essentially we invaded and wouldn’t leave until the “uncivilized” inhabitants adopted treaties and constitutions recognizing our free right of action against them at any time in the future, the appointment of our customs collectors to repay the debts our Military Governors and foreign investors had incurred on their behalf during the occupation for things, like projects that benefited foreign owned cane, fruit, and banana companies. The Platt Amendment was still in effect, even after Cuba became a full member of the League of Nations and the first Pan American State to exercise its “plenipotentiary powers” by signing the Montevideo Convention. It’s very ironic that anyone today would claim that Palestine doesn’t fulfill the same Montevideo criteria for statehood, when the US was doing precisely the same things to many of its signatories back then that Israel is doing to Palestine today. In fact, Root got a Nobel prize for his efforts. Perhaps Netanyahu’s request for a permanent presence in the Jordan Valley is an attempt to pad his resume too in hopes of getting one. http://www.nobelprize.org/nobel_prizes/peace/laureates/1912/root-facts.html

        The Montevideo Convention is one of the reasons the customary Definition of Aggression authored by the General Assembly has an explanatory note that says the term “State” is used in that codification of international law without any regard to recognition by others or to UN membership, i.e. when a victim “State” claims its “independence” and complains that another “State” is violating its “territorial integrity” or right of “self determination” through “invasions”, “occupations”, “blockades”, & etc., that is by definition the Crime of Aggression – and neither non-recognition nor a veto of its UN membership application by the other “State” or a “group of States” can be used as the basis for their legal defense or to prevent a criminal prosecution on the grounds of the victims juridical status. It would also be an absurd result if the only International Court with criminal jurisdiction over the crime of apartheid could not accept and act upon a complaint from a victim, “Bantustan” state over the objections of a perpetrator state regarding non-recognition. After all, denial of nationality and self determination + creation of reserved areas for certain ethnic groups are the constituent acts of the offense that serve as prima facie evidence that apartheid exists in the first place. If non-recognition were to be allowed as a defense, then the Court would be required to permit every defendant to profit by his or her own wrong doing and the crime of apartheid would always go unpunished.

        In Reid v Covert the Supreme Court held that the Congress and the President are creatures of the Constitution and that they can’t do anything outside of our US territorial jurisdictions that is prohibited by that document. Nonetheless, President Bush’s legal advisors suggested he establish a prison in Cuba, outside the jurisdiction of our Article III Federal Courts, where persons who had been deported or transferred from Afghanistan in violation of Article 49 of the 4th Geneva Convention could be imprisoned forever without any charges. The UK Supreme Court has long since ruled that British citizens, like Mr. Rahmatullah, are being detained by the U.S. in Gitmo illegally. See UK Supreme Court Rejects Jack Goldsmith’s Interpretation of GC IV http://opiniojuris.org/2012/11/01/uk-supreme-court-rejects-jack-goldsmiths-interpretation-of-gc-iv/

        Now the UK and Afghanistan are both members of the ICC, so the Court automatically has jurisdiction in case either of them is unwilling or unable to conduct credible investigations and prosecutions of the responsible US officials. Sitting members of Congress aren’t even immune from criminal indictments under our own laws, so they don’t enjoy anything like diplomatic immunity under international law or the Rome Statute. We all know that there is ample evidence that the US has tortured innocent people there and is holding them there illegally, while Congress and the Commander in Chief refuse to close Gitmo. The right of the USA to even have the Cuban base is doubtful at best under international law. But its establishment and use as a prison operated beyond the jurisdiction of any regularly constituted courts is a flagrant violation of the Geneva Conventions and a crime against humanity. So what gives? The Office of the Prosecutor has turned a blind eye to the situation and the UK Supreme Court decision. It continues on with a “preliminary examination” that it has been conducting ever since 2007 to determine if any crimes within the Court’s jurisdiction may have been committed. See for example “The OTP’s Remarkable Slow-Walking of the Afghanistan Examination” http://opiniojuris.org/2013/12/01/otps-remarkable-slow-walking-afghanistan-examination/

        Send Phil and Adam an email if you’d like to see these comments on the relevant history and law turned into some articles. I’m no writer, but Phil, Adam, and James North could take the information in this thread and run with it. You’re not ever going to see it spelled-out this way in the mainstream media.

      • just on May 7, 2015, 3:00 pm

        “The legal position of Israel is simply untenable, so even their allies in the legal profession have to divert attention away from the subject. Even the most distinguished ones employ the same shopworn hasbara and try to sow fear, uncertainty, and doubt. Here’s a load of crap by Eugene Kontorovich …”

        It certainly is a “load of crap”! I notice he didn’t bother to reply to your factual comments. It’s troubling that he bills himself as “Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.” No wonder so many folks remain uneducated/uninformed.

        (It’s like listening to David Rivkin…)

      • just on May 7, 2015, 5:56 pm

        Agreed.

        It’s time for someone new. I have some ideas, but clearly it is only up to the Palestinians.

      • just on May 8, 2015, 12:07 pm

        Heavens to Murgatroyd!

        “…The right of the USA to even have the Cuban base is doubtful at best under international law. But its establishment and use as a prison operated beyond the jurisdiction of any regularly constituted courts is a flagrant violation of the Geneva Conventions and a crime against humanity. So what gives? The Office of the Prosecutor has turned a blind eye to the situation and the UK Supreme Court decision.” – See more at: http://mondoweiss.net/2015/05/palestines-international-criminal#comment-145975

        That “office of the Prosecutor” seems to be almost criminal in its inaction (except in Africa!) They seem to be Anglophiles above all else. You’re right, I haven’t seen 99% of what you wrote, including the easy steps President Obama could take to shut Gitmo down, anywhere in MSM. As for your writing abilities, you’re mistaken. :-)

        MW should indeed take this on. It certainly is suited to “The War of Ideas in the Middle East”

      • Mooser on May 10, 2015, 12:22 am

        “The legal position of Israel is simply untenable”

        The extent of Zionism’s contempt for law is breathtaking. Thanks for all this work, Hostage.

      • Hostage on May 15, 2015, 2:31 pm

        Here’s a link to an article by Eugene Kontorovich which compares the Saudi blockade of Yeman to Iranian relief ships to Israel’s blockade of Gaza. The subject of the legality of blockades in non-international conflicts versus international armed conflicts (i.e. some victims are more equal than others under the law) actually stirred quite a debate. http://opiniojuris.org/2015/05/11/guest-post-irans-relief-ship-and-the-blockade-of-yemen

        Here’s a comment I made about the “sovereign equality of states” jargon in the UN Charter that you might find interesting:

        Re… Adrian: in the 19th Cent. it was well known that all of the customary laws of war applied to a “belligerency” (like the US Civil War between the United States and the belligerent CAS) and that they applied to wars with “nations,” etc. The US was at war with certain Indian nations and tribes.

        FYI, the change to the undefined term “State” in the portion of the UN Charter regarding “sovereign equality” altered the entire nature of the organization and prevented it from actually becoming the “United Nations”. To anyone familiar with the actual documentary history and the rules of international organization, it’s simply ludicrous to suggest that the absence of some aspect of “sovereign equality” could somehow serve as a jurisdictional bar to criminal prosecution in an international court – because there never has been any such thing.

        I discussed in my post above, that entities like the Latin American and Caribbean states or the India Colony were admitted as full members of the League of Nations, decades before they attained any real measure of independence or sovereignty of their own. They weren’t looking for statehood in the end, they already had that, they were seeking independence. The US State Department Digest of International Law explains that:

        “A state in the international sense is generally described as a recognized member of the family of nations, an international person. Authorities differ in respect to the qualifications for such statehood, but there is general agreement on certain basic requirements. Independence is not essential. The requisite personality, in the international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relationships between itself and other contracting parties” — Marjorie M. Whiteman, Digest of International Law, vol. 1 (Washington, DC: U. S. Government Printing Office, 1963) page 223

        So if the PLO Executive Committee concluded treaties on behalf of the PA, acting in its capacity as the Provisional Government of the State of Palestine, that would not prevent the PA from being a state in the customary sense.

        The first time the phrase “sovereign equality” was used in the foreign relations of the United States was when the Secretary of State advised the US Delegation to the Kingdom of Hawaii that it was okay to arrange with the commanding officer for the continued presence on shore of a US marine force, so long as he did NOT establish “a protectorate over the Government of the Hawaiian Islands, which the United States have recognized as sovereign and with which they treat on terms of sovereign equality.” The very next day he cabled again and said “A treaty of annexation has been signed and will be sent to the Senate without delay.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1894Ap&isize=M&submit=Go+to+page&page=407

        In 1943, the first draft of the declaration of the Moscow Conference said: “That they recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all nations, and open to membership by all nations, large and small, for the maintenance of international peace and security.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=523

        That formula would never do for the Big Five, since those particular Allies wanted to keep their war time enemies out of the organization and they also wanted to prevent smaller powers from entertaining any pretensions that some nations might not play a larger role than others. So the British proposed: “That they recognise the necessity of establishing at the earliest practicable date a general international organization based on the principle of sovereign equality of all nations for the maintenance of international peace and security in which all peace-loving nations, great and small, may play their parts.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=532

        Uncle Joe Stalin would have been understandably apoplectic over all of this talk about the sovereign equality of all the nations in his Soviet fold, their right of self-determination, and their right to play a part. While he agreed in principle with the British proposal, proper top-down control under Marxist-Leninist theory would have demanded that it be reworded through a simpler amendment: “namely, to insert the word “States” for “nations” and drop all the talk about small ones playing a part. That’s exactly what the USSR recommended. – http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=598

        In the end they determined that the idea of sovereign equality among peace loving states wasn’t even flexible enough to accommodate the principle of official state neutrality, since peace loving members might have to accept a decision of the Big Five that would require them to go-off to war on a moment’s notice. Article 25 also seemed at odds with the concept of equality, since all of the members had to agree to accept any decision of the Security Council, including a veto that only five members would ever possess. The term lost almost all residual meaning when the USSR, a single constitutional union or entity, demanded and received 3 votes (Russia, Ukraine, and Byelorussia) in the General Assembly – and the veto in the Security Council – compared to the single measly vote permitted to all of the smaller States.

        Honest scholars of political science have never harbored any illusions about the inequality of these historical arrangements which focused all the attention on so-called sovereign states and away from “nations” and “communities”.

      • mohandeer on May 15, 2015, 2:45 pm

        While the piece was an excellent resource, we have still the problem of the US and other EU member state and of course NATO, all of whom seem incapable of distinguishing false propaganda as practiced so well by the US and certain bought and paid for media outlets, from the facts and truths. They blithely go where man has gone before, ignoring laws as if they don’t apply to them and regardless of the mass casualties they leave in their wake. The fact that such laws do exist seems to do us no good, not even within the UN and certainly not with the ICC. It would be wonderful if we could have a major publication media source that was honest and had integrity, but that takes money and the Rothschilds and Koch’s, ExxonMobil etc. have it all. What’s a person supposed to do?

    • mohandeer on May 11, 2015, 9:32 pm

      I have long given up on the UN and the ICC, wish I could be proven wrong.

  9. NickJOCW on May 5, 2015, 10:10 am

    Law and Justice are quite separate. Law is rules defining the way identifiable groups agree to abide. Justice is an abstract concept differently perceived by different groups and even by sub-groups and individuals. If a law is overwhelmingly regarded as unjust by the group whose behaviour if defines, it can be discarded or modified, many Western laws against homosexuality would be an example. Obviously Israelis do not consider themselves members of the group to which many international laws are deemed to apply, and they are far from alone in that, and therefore they feel no compunction to abide by them. Nor do they share the same concepts of Justice. Most international laws are loosely or less loosely based on Christian values and Israelis are not Christians. Therein lies the rub, less in any malfeasance at the ICC which must follow the letter of the Law rather than the Justice it may reflect but does not automatically enshrine.

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