On the evening of December 31st the BBC News website’s Middle East page published an article currently going under the title “Palestinians sign up to join International Criminal Court“. Previous versions of the report can be viewed here.
The story of course relates to the latest in the series of moves by the Palestinian Authority designed to “pave the way for the internationalization of the conflict as a legal matter” as Mahmoud Abbas himself put it and thereby avoid the internationally accepted route of bringing the dispute to an end by means of direct negotiations.
The BBC’s report informs readers that:
“Palestinian leader Mahmoud Abbas has signed papers to join the International Criminal Court (ICC).
He signed the Rome Statute, the ICC’s founding treaty, at a Ramallah meeting.[…]
The Rome Statute was among some 20 international agreements signed by Mr Abbas at the meeting in Ramallah, in the West Bank. Signing up to the statute is seen as the first move to joining the ICC.”
Whilst the BBC focuses its attentions on the Rome Statute, according to the PLO, the full list of international agreements signed by Abbas is as follows:
At the end of the article the BBC reminds audiences that:
“Earlier this year Mr Abbas signed applications by the “State of Palestine” to join 15 UN treaties and conventions, beginning with the Fourth Geneva Convention.”
It does not, however, note the very relevant fact that those applications were signed on April 1st in breach of the commitment made by the PLO not to take such steps before the deadline for the then ongoing negotiations expired or that the PA was already violating the majority of the conventions signed.
So what does this BBC article actually do to contribute to audience understanding of the significance of the signing of the Rome Statute by a PA president whose elected mandate long since expired? Readers are told that:
“Palestinian chances of joining the ICC were improved in 2012 after the UN General Assembly voted to upgrade their status to that of a “non-member observer state” in November of that year.
Membership is not guaranteed but correspondents say the application is a highly political move that carries great symbolism.”
The rather opaque phrase “membership is not guaranteed” fails to adequately clarify that:
“The ICC Prosecutor must recognize Palestine as a full member and accept its signature to the Rome Statute. This is not guaranteed since the UN Security Council has not done so…”
The BBC also informs audiences that:
“Membership could see the Palestinians pursue Israel on war crimes charges…”
However, as the Jerusalem Post explains, in order for that to happen:
“The Palestinians must officially file a complaint against individual Israeli soldiers and leaders. This is also far from guaranteed as it could expose the Palestinians to “mutually assured legal destruction” with the Palestinians facing probably worse war crime cases for indiscriminate rocket fire and Israelis facing complex grayer fog-of-war cases, in the Palestinians’ best scenario.
The ICC Prosecutor must decide based on the complaint to order a preliminary examination and then a full criminal investigation. It cannot do this unless it shows that Israel refuses to or is unable to investigate itself. Israel investigating itself does not require a set number of convictions, just reasonable investigations and Israel has already ordered 13 investigations into the Gaza war.
The ICC Prosecutor, not Palestine, decides whether or not to indict. To indict, the prosecutor would need to believe there is evidence beyond a reasonable doubt to convict that there was essentially intent to murder, whereas many incidents in war are foggy and involve mere negligence or mistake.”
For more background on the issue it is well worth reading this paper from 2013 by Professor Eugene Kontorovich of Northwestern University School of Law.
The BBC report goes on:
“Israel, which is not a member of the ICC and does not recognise its jurisdiction, says joining the court would expose the Palestinians to prosecution.”
Contrary to the impression given by the BBC, it is not just “Israel” which has warned that membership of the ICC could be a double-edged sword for the Palestinians; a former chief prosecutor of that court noted the same fact several months ago.
“When he was the court’s chief prosecutor, Luis Moreno-Ocampo turned down a request by the Palestinians to join the court. But as a non-member state, they are now eligible, he said. If they accepted its jurisdiction, however, the Palestinians could also be investigated for Hamas rocket attacks and suicide bombings against Israeli civilians.”
The BBC report also states:
“Based in The Hague, the ICC can prosecute individuals accused of genocide, crimes against humanity and war crimes committed since 1 July 2002, when the Rome Statute came into force.”
However, it does not clarify to audiences that:
“The Palestinians cannot file complaints relating to any date before November 29, 2012, when the UN General Assembly recognized Palestine, and Israel, if it joined the ICC could not file complaints relating to any date earlier than July 1, 2002, the effective start date of the ICC.”
Obviously this BBC report does little to meet the BBC’s remit of enhancing audiences’ awareness and understanding of international issues.