Palestine Takes to International Courts
Introduction
Many legal practitioners have looked at the case filed by Palestine against Israel at the UN’s Committee against Racial Discrimination on April 2, 2014, may in a bid to know if the move has jurisdiction. Palestine reported that Israel was promoting racial discriminating against Palestinian citizens in the country. Palestine stated that Israel’s actions were against its obligations under CERD. The case said that Israel had supported the discrimination in the Occupied Palestinian Territory for more than five decades. This factor necessitates the establishment of long-term solutions anytime from now. The submission of the case to CERD in 2014 was expected to bear significant fruits in a bid to solve the issues. However, Palestine reported later that Israel did not make adequate efforts in an attempt to overcome the challenge. That was contained in a written response to the committee in 2018.
To determine the jurisdiction of this case, one needs to look at several factors. One of them is the definition of the relationship between the two countries under CERD’s legal framework (Bosco, p. 155). The other factor is the necessity to determine the CERD’s applicability in the issue. On the first, Israel denies having the responsibility of preventing acts of racial discrimination based on the fact that the country has no treaty relationship of rights with Palestine. For that reason, Israel stated that the document lacked validity. In response, Palestine said that it would continue expressing issues of importance to its citizens, which directly or indirectly involve the member states (Bosco, p. 153). The problem was complicated further by Israel’s unwillingness to participate in some of the critical meetings. Such include the case in May 2019 when the country declined to attend a meeting that had been arranged to discuss the conflict between itself and Palestine. The country stuck to its statement that it did not have a treaty relationship with Palestine.
My opinion on the matter is that if Israel is right on the issue of its relationship with Palestine, then CERD might lack the jurisdiction to handle the case. For that reason, the case will be inadmissible. That argument is based on the fact that CERD can only handle similar cases involving countries that have treaty relationships under the committee.
Under the terms of CERD, every member state is responsible for preventing the occurrence of actions that violate the respect for humanity such as apartheid, racial discrimination, and similar vices within their areas of jurisdiction (Pellet, p. 981). Israel is among the member states and is expected to do the same within its geographical area. For that reason, Palestine states that the country has failed to perform its role in the OPT (Hajjar, p. 137). On this, Palestine’s case might be valid only if Israel recognizes OPT as part of its territorial space. In that case, the country would be responsible for implementing human rights policies and treaties in the stated region (Bosco, p. 157). It would be responsible for the protection of all the humans within its jurisdiction, including the Palestinians. However, the case might lack authority if Israel denies the legal obligation to implement human rights treaties in OPT. According to a statement sent to CERD by Israel in response to the same, the country stated that it is willing and able to implement the treaties but only within its territory. For that reason, it disqualifies the statement made by Palestine that it should do so in OPT.
My opinion on the same is that CERD will lack the jurisdiction to handle the issue because its provisions only apply within a state’s territory. For that case, Israel cannot be held accountable for the anti-human right actions in the OPT. The committee could only have the jurisdiction if Israel made an individual declaration that it would be responsible for the implementation of human rights treaties in the OPT. The fact that it did not do so is a significant reason to declare Palestine’s claims invalid.
The case in which Palestinian foreign minister referred to the situation in Palestine to the International Criminal Court calls for the intervention of legal practitioners in a bid to determine the ICJ’s jurisdiction over the issue. On the same, Israel states that the case is also invalid for various reasons. The country believes that the ICJ does not have jurisdiction based on the fact that it abides by the terms of international law. Israel also argues that the case is legally “invalid” because the Palestinian Authority is not a state (Bosco, p. 162). My opinion on the issue is that Palestine might be exploiting the ICJ for political reasons. That is based on the fact that resuming a peace process with Israel would be easier and less adverse. Palestine’s decision to consult the ICJ for assistance happened at a time when Palestinians had made threats of causing terror against Israel (Lubell, p. 5). In 2019, Fatou Bensouda made a statement regarding the issue that there is significant evidence that shows that Palestinians were actively involved in war crimes.
The outcomes of Palestine’s decision to table its issues at the ICJ depend on many factors, among them the court’s willingness and ability to handle it. The court’s involvement in the problem depends on whether it has the jurisdiction to do so (Bosco, p. 164). If it does not have jurisdiction, the ICJ could end it within a relatively short time. If it has the jurisdiction, Israeli Prime minister and the defense minister would be required to present themselves at The Hague to answer questions regarding human rights violations against Palestinians.
Palestine believes that the involvement of the ICJ in the long-term conflict between itself and Israel will help end the inhumane practices against its citizens at the OPT. However, Israel believes that such an action would be inappropriate in that case and would be illegal under international law (Bosco, p. 165). Israeli prime minister, in 2019, stated that the idea of using the ICJ in the conflict is a form of absurdity because it can hardly yield the desired outcomes. The prime minister also said that if the court decides to violate international law in the process, the action would be similar to other anti-Semitic acts.
Bensouda stated that the involvement of the ICJ could be difficult because the Israeli legal systems show significant effort in a bid to promote respect for human rights. The courts in Israel have, for many times, probed Israeli soldiers associated with allegations of actions that violate human rights (Bosco, p. 167). For that reason, the ICJ’s role, in that case, could be just a waste of time and resources. It could be redundant and inadmissible. The judge also stated that the Palestinian side did not show significant effort on the same issue.
In September, the Palestinian government made its most high-profile move, starting proceedings against the United States at the ICJ. That move can succeed or fail, depending on many factors. First, the fact that both the United States and Palestine are member states means that the court has jurisdiction to handle the case (Bosco, p. 170). The ICC Prosecutor analyzed the conflict and determined that the s issue between Palestine and Israel needed the actions of the court. Also, Palestine had the capacity to accept the jurisdiction of the ICC to intervene in the matter. The move by the United States of transferring its embassy from Tel Aviv to Jerusalem could necessitate the intervention of the ICJ (Fletcher, p. 5). That is based on the fact that Jerusalem is still a region under conflict between Israel and Palestine. It also shows that the US supports what the Palestinians refer to as anti-human rights actions against the Palestinians perpetrated by Israel in Gaza and several other parts under conflict. The ICJ can have jurisdiction to deal with cases relating to human rights, genocide, and war crimes. The ICJ can take action in cases where the parties involved are member states (Fletcher, p. 7). It can also do the same in case a non-party state accepts jurisdiction. Palestine is a member but also accepts ICJ’s jurisdiction to be involved in the conflict. However, the action of presenting the case to the ICC alone is not enough to say that the decision will be made as required (Hajjar, p. 143). Palestine still needs to follow-up and ensure that it offers the court the support it requires to proceed with the case. However, the ICC retains the total power to decide on whether to bring charges against or prosecute Israel or the United States.
The case in which the United States moved its embassy to Jerusalem can be validly based on the fact that the ICJ requires member states to establish their embassy only within the jurisdiction of the host state. In this case, Jerusalem is a region under conflict. It means that the US move is perceived as taking their embassy outside Israel’s jurisdiction (Bosco, p. 170). Being an ICJ member state is optional. For that reason, member states can willingly withdraw or choose to remain. After the case was filed, the United States withdrew. However, the ICJ still has jurisdiction to handle the situation. The withdrawal does not invalidate the claim because it had already been filed.
Conclusion
This paper shows that Palestine’s bid to seek justice at the international level is a challenging task. In some cases, the country can get justice, while in others, it seems relatively tricky. The difference depends on the court’s jurisdiction to handle the situation. For the case involving Palestine and Israel, the country can hardly get justice because the ICJ might lack jurisdiction to handle the case. For the case involving Palestine and the United States, the ICJ might have jurisdiction to handle the issue because both are member states.
Works Cited
Bosco, David. “Palestine in the Hague: justice, geopolitics, and the international criminal court.” Global Governance: A Review of Multilateralism and International Organizations 22.1 (2016): 155-171.
Fletcher, George P. “No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration.” Contemporary Issues Facing the International Criminal Court. Brill Nijhoff, 2016. 5-14.
Hajjar, Lisa. “Human rights in Israel/Palestine: The history and politics of a movement.” Law and Social Movements. Routledge, 2017. 137-154.
Lubell, Noam. “Key Issues in the Israeli-Palestinian Conflict from the Viewpoint of International Law: Prepared for the Independent Panel Appointed to Review the Impartiality of the BBC’s Coverage of the Conflict.” Available at SSRN 1366708 (2019).
Pellet, Alain. “The Palestinian declaration and the jurisdiction of the International Criminal Court.” Journal of International Criminal Justice 8.4 (2010): 981-999. https://alainpellet.sharepoint.com/Documents/PELLET%20-%202010%20-%20Palestinian%20Declaration.pdf