PA Minister of Justice’s own statement proves that the ICC has no jurisdiction over Israel!

While the judges of the Pre-Trial Chamber of the International Criminal Court (ICC) are still considering the request of the ICC Prosecutor, Fatou Bensouda, to invent a “State of Palestine,” and approve opening an investigation against Israel, the Palestinian Authority Minister of Justice, Muhammad Al-Shalaldeh, has inadvertently made a public statement, which proves that the ICC lacks any jurisdiction over Israel.

Presenting the PA plans to open the PA courts for the first time to allow for both the prosecution of Israelis and for private Palestinians to sue Israelis who allegedly caused them harm, Al-Shalaldeh made remarkable statements.

On the subject of the criminal prosecutions, Al-Shalaldeh clarified that the PA is:

“currently working to gather criminal evidence in order to submit the first lawsuits.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

On the subject of the civil claims, Al-Shalaldeh added:

“The Palestinian courts will examine the issuing of rulings and sentences against settlers, in a demand for civil liability for damages, which is connected to providing civil compensation. This is in order to establish the perception of state sovereignty over an occupied area, and as continuation of Palestine being accepted as a UN non-member state, in addition to strengthening the perception of judicial authority over the occupied Palestinian area.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

Why do these statements by the PA Minister of Justice himself prove what PMW argued in its submission to the ICC that the ICC lacks jurisdiction over Israel?

The ICC is not a regular national criminal court. Rather, it works solely on the basis of “delegated jurisdiction.” Membership in the ICC is limited to “states,” whose national jurisdiction could be delegated, in given circumstances, to the ICC.

When Al-Shalaldeh notes that the PA and its courts have never exercised jurisdiction over Israelis and that these would be the “first lawsuits”, he is admitting that the PA never had any jurisdiction over Israelis. The old maxim declares “nemo dat quod non habet” - “no one gives what they do not have.” Since none other than the PA Minister of Justice has clarified that the PA has no jurisdiction over Israelis, it is clear that the ICC cannot make the legal determination that the PA had more jurisdiction than it itself ever claimed.

According to the PA, it appears to be sufficient to create the “perception” of “state sovereignty” and “perception of judicial authority”, in order for the ICC to establish real, bona fide, jurisdiction. This of course has no legal basis. Continuing the briefing, Al-Shalaldeh made additional comments that represent a fundamental misunderstanding of both reality and law.

For example, Al-Shalaldeh claimed that the proceedings to be conducted in the PA courts would be ignored by Israel and that would then invoke the need for the decisions to be implemented by the countries in which the “settlers” hold citizenship. He further argued that the decision would serve as proof of the ICC’s “complementary jurisdiction.”

“The sentences that the Palestinian judicial system hands out will not be implemented and respected by the occupation authorities, this will constitute proof of the need for their implementation before the states whose citizenship the settlers hold, and will also aid in petitioning the International Criminal Court (ICC), which determines [that it has] complementary jurisdiction – in other words, that the victims of the violations have exhausted all the legal national procedures, and the implementation of the sentences will be transferred to the ICC.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

While Al-Shalaldeh’s opening statement that Israel will not implement or respect the decisions of the Palestinian judicial system as regards Israelis is indeed accurate, the remaining statements are fundamentally flawed.

So why would Israel not respect the decisions of the Palestinian courts?

To answer this question, one need only look to the founding instruments of the PA - the Israeli-Palestinian interim agreements. These agreements, cumulatively referred to as the “Oslo Accords”, were reached between Israel and the PLO starting in September 1993 through September 1995. The agreements provide the legal basis for the creation of the PA and stipulate exactly what powers and jurisdictions the newly created entity holds. Every one of the agreements stipulated, over and over again, that the PA, including, obviously, all of its organs, would be devoid of any jurisdiction over Israelis. If the PA now chooses to act in direct breach of the agreements signed by the PLO, and prosecute Israelis, these decisions would be made beyond the powers (ultra vires) of the PA and its courts, and would have no force whatsoever.

Accordingly, since the Oslo Accords explicitly deny the PA courts the right to put Israelis on trial there would be no reason why Israel should respect decisions of these courts against Israelis.  

On the subject of the use of the decisions of the PA courts against the “settlers” in their countries of citizenship, Al-Shalaldeh’s comments were similarly lacking any real legal basis.  

While some countries do have agreements with other countries that allow, in certain circumstances, for the execution of foreign judicial decisions, this is generally not the case with decisions on criminal matters. Accordingly, if a PA court convicts an Israeli resident of Judea and Samaria who also holds US or EU citizenship, the PA would not be able to use those decisions to force the US or the EU to take criminal actions against their citizens. The underlying message of Al-Shalaldeh’s statement - that the Israeli residents of Judea and Samaria all hold foreign citizenship - is similarly baseless.

On the subject of the “complementary jurisdiction” of the ICC, Al-Shalaldeh has misunderstood the legal concept.  

The principle of “complementarity” governs the exercise of the ICC’s jurisdiction. According to this principle, the ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. As regards Israel and the Palestinian complaints against Israelis, fulfillment of this principle would require the ICC to determine that the Israeli legal system has failed to deal with Palestinian claims or that the Israeli legal system and courts are unwilling or unable to carry out the proceedings.

Since the Israeli legal system has demonstrated that, it is both able and willing to deal with authentic and justified claims of Palestinians, which are supported by credible evidence, the existence of decisions from the PA court system, which has no jurisdiction over Israelis, would be irrelevant to the ICC’s assessment whether to claim jurisdiction over Israelis or not.

The valueless nature of the PA court’s criminal decisions can and should also be influenced by the nature of the proceedings the PA intends to conduct. Describing the procedures to be conducted in the PA courts, Al-Shalaldeh, commented:

“If the other side (i.e. Israel) refuses to recognize the authority of the Palestinian courts, the official procedures will be carried out in a just trial, and sentences will be given in absentia, according to the Palestinian legislation and laws.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

In other words, what Al-Shalaldeh is arguing is that the ICC will be able to use the fact that Israel refused to transfer Israelis - to the Palestinian court system that lacks any jurisdiction over them; which then tried and sentenced the Israelis in absentia; in breach of the basic rights entitled to any defendant in a respectable court system and in breach of the Oslo Accords - to the detriment of Israel and the “convicted” Israelis. While Al-Shalaldeh may be able to force the Palestinian courts to accept his approach, in respectable courts, it lacks any real legal basis.

In April, Palestinian Media Watch exposed the close collusion between the ICC Prosecutor, Fatou Bensouda and the PA, including other internationally designated terrorist organizations. While the collusion between the PA and the ICC Prosecutor may give Al-Shalaldeh reason to believe that as regards Israel, the ICC Prosecutor, is indeed capable of completely absolving herself of any commitment to basic legal standards, one would hope the ICC judges are more committed to basic legal standards and to ensuring the integrity of the court.     

Highlighting the blind nature of the PA’s use and abuse of the ICC to achieve its political goals, Al-Shalaldeh tried to explain why he thought the ICC would have jurisdiction over Israel and Israelis. According to Al-Shalaldeh:  

“Every state is obligated according to the regulations of the ICC to put on trial those who have committed war crimes, crimes of genocide, and crimes against humanity.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

According to Al-Shalaldeh, the fact that Israel has not prosecuted any Israelis for committing so-called “war crimes, crimes of genocide and crimes against humanity,” is in and of itself proof that Israel has failed in its duties.

As the old adage goes: “People who live in glass houses, shouldn’t throw stones.”

Since the establishment of the PA in 1994, Palestinian terrorists have carried out hundreds of crimes against humanity and other war crimes. These crimes include, but are certainly not limited to, firing close to 20,000 missiles, mortars and rockets targeting Israel’s civilian population, mass killings of civilians, often using materials designed to cause additional suffering, as well as the PA’s institutionalized program to incentivize and reward terrorists by paying them monthly salaries. In all those years, the PA has never once indicted a Palestinian for the crime of murdering an Israeli, let alone the commission of crimes against humanity.

If the test Al-Shalaldeh is suggesting for the ICC to establish jurisdiction over Israel is adopted, the PA and the other Palestinian terror groups have a lot more to fear from the ICC than Israel. Or maybe here too, Al-Shalaldeh and the PA are convinced that the inherent anti-Israel bias of Bensouda that PMW exposed, is also true of the judges of the Pre-Trial Chamber and the court itself.  

The following is a longer excerpt of the interview with Al-Shalaldeh:

Headline: “For the first time: Palestine will try settlers in its courts”

“[PA] Minister of Justice Muhammad Al-Shalaldeh announced yesterday [Oct. 14, 2020] that in a matter of days the Palestinian judicial system will begin to examine cases regarding violations that the settlers have committed against Palestinian civilians…
He emphasized that according to the basic law, every citizen whose rights are violated has the right to turn to a Palestinian national judge.

He also explained that they are currently working to gather criminal evidence in order to submit the first lawsuits and convict settlers whose names are known for committing crimes and violations against civilians in the Old City of Hebron and the town of Burin, south of Nablus…

The minister of justice explained that the Palestinian courts will examine the issuing of rulings and sentences against settlers, in a demand for civil liability for damages, which is connected to providing civil compensation. This is in order to establish the perception of state sovereignty over an occupied area, and as continuation of Palestine being accepted as a UN non-member state, in addition to strengthening the perception of judicial authority over the occupied Palestinian area.

He emphasized that if the sentences that the Palestinian judicial system hands out will not be implemented and respected by the occupation authorities, this will constitute proof of the need for their implementation before the states whose citizenship the settlers hold, and will also aid in petitioning the International Criminal Court (ICC), which determines [that it has] complementary jurisdiction – in other words, that the victims of the violations have exhausted all the legal national procedures, and the implementation of the sentences will be transferred to the ICC.

The Palestinian judicial system’s rulings will also be criminal evidence that will be presented before any other international criminal judicial system, if Israel will not honor the implementation of the sentences…

The victims will submit lawsuits to the Palestinian trial courts in the various districts, and a petition will be made to the Israeli side, as the occupying state, to stand before the Palestinian judicial system.

If the other side refuses to recognize the authority of the Palestinian courts, the official procedures will be carried out in a just trial, and sentences will be given in absentia, according to the Palestinian legislation and laws.

Minister of Justice Muhammad Al-Shalaldeh emphasized that when deciding the victims’ cases, the Palestinian judges will not rely only on the Palestinian legislation, but rather also on the international agreements and conventions that Palestine has joined, and which the occupying state has signed.

He explained that every state is obligated according to the regulations of the ICC to put on trial those who have committed war crimes, crimes of genocide, and crimes against humanity, in accordance with Clause 146 of the Fourth Geneva Convention. This clause determines that the states are obligated to legislate national laws in order to put on trial those who commit war crimes, crimes of genocide, and crimes against humanity, regardless of where the crime was committed and what the citizenship [of the perpetrator is].

Al-Shalaldeh said that in accordance with the phrasing of this [clause], the states will anchor in their legislation the possibility to put on trial all those who commit such crimes, but in the most serious cases [of crimes] that are committed against the Palestinian people, it is possible to turn to the ICC because the Israeli judicial system is for the most part politically biased, and therefore we, in the Palestinian judicial system, will submit lawsuits directly to the ICC.

He emphasized that the matter is not limited to attacks by settlers, as the Ministry of Justice… will assemble a national team that will monitor a number of matters, including the bodies of the Martyrs that are being held in the so-called numbered cemeteries (i.e., Israeli cemeteries for temporary burial of terrorists). On this topic, [the ministry] will demand from the occupation authorities civil liability and compensations for the tragedy that their relatives are experiencing. Likewise [the team will monitor] the matter of the foreign companies – over 200 in number – that are active in the settlements, and matters concerning putting settlers with dual citizenship on trial before the judicial system in the state whose citizenship they carry.

Al-Shalaldeh explained that this constitutes a legal struggle that complements the popular resistance (i.e., term used by Palestinians, which also refers to the use of violence and terror) and the political and economic struggle, and its goal is to ensure that no one escapes punishment – especially those who have committed crimes against the Palestinian people, starting with the British Mandate and the Balfour Promise (i.e., Declaration), and ending with the occupying government’s crimes.”

[Official PA daily Al-Hayat Al-Jadida, Oct. 15, 2020]

The Cemeteries for Enemy Casualties (numbered cemeteries) are two burial sites maintained by the Israeli army for burying the bodies of enemy soldiers during wartime as well as terrorists. They are fenced and well-marked. Graves have markers instead of gravestones. Burial is temporary, as the bodies are eventually returned to their countries of origin. No ceremony is held. The bodies are buried in numbered caskets after their identities are documented.

The terms "peaceful uprising/resistance,” and “popular uprising/resistance" are used by PA leaders at times to refer to peaceful protest and at times to refer to deadly terror attacks and terror waves. For example, ‎Mahmoud Abbas defined as “peaceful popular” the murderous terror during the 2015-2016 ‎terror wave (“The Knife Intifada”), in which 40 people were killed (36 Israelis, 1 Palestinian, 2 Americans and 1 Eritrean) and hundreds wounded in stabbings, shootings, and car ramming attacks. Abbas said: "We want peaceful popular uprising, and that’s what this is." https://palwatch.org/page/9276

The Balfour Declaration of Nov. 2, 1917 was a letter from British Foreign Secretary Arthur Balfour to Baron Rothschild stating that "His Majesty's government views with favour the establishment in Palestine of a national home for the Jewish people." In 1922, the League of Nations adopted this and made the British Mandate "responsible for putting into effect the declaration," which led to the UN vote in favor of partitioning Mandatory Palestine into a Jewish state and an Arab state in 1947. In response, Britain ended its mandate on May 15, 1948, and the Palestinian Jews, who accepted the Partition Plan, declared the independent State of Israel. The Palestinian Arabs rejected the plan and together with 7 Arab states attacked Israel, in what is now known as Israel's War of Independence.