Dr. Norman Finkelstein on the International Criminal Court

By Scott Douglas Jacobsen

Dr. Norman Finkelstein remains one of the foremost experts and independent scholars on the Israeli occupation and the crimes against the Palestinians. His most recent book is I Accuse!: Herewith a Proof beyond Reasonable Doubt That ICC Chief Prosecutor Fatou Bensouda Whitewashed Israel (2020). Professor Emeritus John Dugard at Leiden University, former Special Rapporteur to the UN Human Rights Council on Human Rights in the Occupied Palestinian Territory and member of the International Law Commission, gave an endorsement, to the previous text Gaza: An Inquest into Its Martyrdom, “Norman Finkelstein, probably the most serious scholar on the conflict in the Middle East, has written an excellent book on Israel’s invasions of Gaza. Its comprehensive examination of both the facts and the law of these assaults provides the most authoritative account of this brutal history.”

Here we talk about the International Criminal Court.

*Interview conducted on July 27, 2020.*

Scott Douglas Jacobsen: So, we’ve done some interviews before. I have done some interviews with some others with some recommendations from you, or others who are journalists or dealing directly with the human rights violations regarding Israel and the occupied Palestinian territories. You have published another book. It is entitled I Accuse!. So, it is focused around the ICC Chief Prosecutor Fatou Bensouda. For those who are not aware of the developments happening at the International Criminal Court, what are some of the pieces of the image that can help sketch things out with regards to the development of the case on rights violations, rights abuse, in regards to Israel and the occupied Palestinian territories, or the Israelis and the Palestinians?

Dr. Norman Finkelstein: Well, the first point to make is it is a little bit confusing. So, I have to go slowly. Also, I have to clarify. At the outset, there are not one but two cases before the International Criminal Court pertaining to the Palestinians. The first case was referred to the court by the Union of the Comoros. The Union of the Comoros is a small country. It happened to be the country to which the Mavi Marmara, which was the flagship of the flotilla that went to Gaza in May, 2010, and came under Israeli assault. By the end, 9 passengers had been killed. A 10th died later, he was in a coma and died from his wounds. That case, as I said, was referred to the court by the Union of the Comoros. There are a lot of technicalities about the court, which, unfortunately, I have to go through in order to clarify the status of the cases. The first technicality is the International Criminal Court is not a universal court or does not possess universal jurisdiction. In order to bring a case before the court, you have to be a state. Effectively, what a state does, it says, “We will join the court or we’re requesting that the court take over criminal jurisdiction for this or that situation.” So, the Union of the Comoros is a state party to the ICC, the International Criminal Court. So, it had the option, which it exercised, to refer the case of the Mavi Marmara to the ICC.

The case sat in the ICC for quite a long time. Fatou Bensouda, the Chief Prosecutor, was trying to drag out the case. In the end, let me just clarify, there are several stages to any case that comes before the court referral. There are several stages to each situation that comes before the court. The first step is called the preliminary examination. In the preliminary examination, the Chief Prosecutor decides whether there is enough evidence to support an investigation. And then, after an investigation, there is, again, another stage. Is there sufficient evidence for an indictment? Then after the indictment, there is the actual prosecution, and the decision, whether or not the party or parties are guilty of the crimes. So, we’re talking about a very early stage, which is called the preliminary investigation. Fatou Bensouda decided that the case or the referral was, to a technical term of the court, of ‘insufficient gravity’ [Ed. “…the situation would not be of sufficient gravity to justify further action…”] to warrant stage two, an investigation. To now go through, quickly, because I think the basics are now clear for your listeners [Ed. readers], there was a lot of pushback in the court because it was clear the Chief Prosecutor was engaging in a whitewash and cover up. She, basically, simply appropriated all of the arguments and all of the effectively fake evidence that Israel presented in order to justify her refusal to move on to stage two, an investigation.

As I said, there was a lot of pushback in the court. A lot of people inside the court were not happy with the way Bensouda was conducting the case. There was sufficient pushback that she had to reconsider her decision. She alleged that she reconsidered it, but came to the same conclusion. For a second time, she declared the case closed. Then there was pushback again. The case, she was forced to reconsider. The third time, she declared it closed. Now, it is in a new stage of appeal by the lawyers for the victims in the case. So, that case, she’s attempted three times to kill it. She closed the case three times. However, now, it’s under appeal again. Simultaneously, with that case, the state of Palestine has referred a separate/distinct case to the court. Basically, its essence is the Israeli settlements in the West Bank, which are illegal under international law and a war crime under the Rome Statute of the International Criminal Court and the murderous Israeli assault on Gaza in 2014 Operation Protective Edge. Now, what happened there is, to make a long story short, Bensouda switched sides.

Where before, she carried out a whitewash and a cover up for Israel. In this new situation, as it is called, she has fiercely championed the Palestinian side. Now, it is coming under attack from the U.S. and Israel. Where we currently stand is, there are two technical issues in the case currently referred to by the state of Palestine. Each of the technical issues will be very clear to your listeners. So, it doesn’t require extensive elaboration. Issue number one, I said it earlier to you. In order to present the case to the court, you have to be a state. Basically, you’re delegating to the state. Your sovereign right to prosecute war crimes. You’re saying, “We’d rather you prosecute this case.” So, the issue arose, “Is Palestine a state?” If it is not a state, it doesn’t have the right to refer any situation to the court. So, question number one, “Is Palestine a state?” Question number two, if a court is going to prosecute, it has to know, “What is the territorial extent of the court?” So, you have to know. If a state refers a case, let’s say Canada refers a case to the ICC, Canada is a Member State.

Let’s say, for arguments sake, the United States launched an unprovoked attack on Canada. So, they attacked Canadian territory. Canada refers the case to the ICC. So, the first thing the ICC has to decide is, “Was the attack on Canadian soil?” Because Canada can only refer cases that occur in its state. So, the court has to know whether or not the attack occurred on Canadian soil or something under Canadian jurisdiction, e.g., a Canadian vessel or a Canadian plane. So, the second issue before the court is, “Even assuming Palestine is a state, what is the territory of that state?” Because, as you know, Israel insists the West Bank including East Jerusalem and Gaza are disputed territories. That there is no Palestinian territory. So, where that second referral now stands is, it has to be determined a) whether Palestine is a state; and b), if it is a state, what are the territorial demarcations of the state?

Jacobsen: With regards to the definition of a state within the United Nations, and as it is being presented to the court, and for the readers today, the terminology for a state within the United Nations is a “Member State,” as many are aware, for perfect clarity. With regards to the definition of occupied Palestinian territory or the state of Palestine, how is this proceeding in regards to the evidence being presented on a) status as a state and b) the territorial demarcations of said state, if defined as such?

Finkelstein: Okay, I’ll give you the principal arguments on both sides. On the UN question, Palestine is officially defined as a non-member observer state. That’s its status. So, it is not a member of the General Assembly, but it is classified as a state: non-member observer state. I think the only other entity that has that definition is the Vatican. The Vatican also has non-member observer state status. Whether or not Palestine is a state, the essence comes down to the following: technical, under what is called the Montevideo criteria, a state has four characteristics. It has a territory. It has a population. It has an effective government. And it has the capacity to engage in foreign relations to sign treaties and things like that. Those are the four technical criteria of a state. The issue that has been the most contentious between the two sides is the effective government. Israel and its supporters say, “Palestine does not have an effective government. It is under Israeli occupation. The governmental rights of the state, in particular the criminal rights of a state, were handed over to Israel in the Oslo Accord.”

So, the Oslo Accord says, ‘The Palestinians have no criminal jurisdiction over Israelis in the West Bank.’ The Oslo Accord says, ‘The Palestinians have no criminal jurisdiction over Area C,’ which is where most of the settlements are located. So, the argument of Israel is, “In the Oslo Accord, the Palestinians handed over already all criminal jurisdiction to Israel. Having done that, it cannot go and say it will hand over criminal jurisdiction to the ICC. They can’t do it because they signed over the jurisdiction in the Oslo Accord to Israel.” The main argument on the Palestinian side is, “If Palestinians don’t have an effective government, it is because of Israeli criminality. In particular, the building of the settlements, the building of the wall. All of these illegal undertakings are the reason why Palestinians don’t exercise effective government.” So, the argument is, “If you say, ‘Palestinians can’t refer a case to the ICC because they don’t have effective government,’ you’re, in effect, rewarding Israel for illegal behaviour.” The argument being, “It is Israeli illegal behaviour that is responsible for the fact that Palestinians aren’t able to exercise effective government.” So, those are the main arguments on both sides.

After the issue of territory, the main Israeli argument is, “The Palestinians agreed that territorial issues would be resolved in the course of negotiations. So, the Palestinians agreed to defer into the future the question of whose territory is it.” The main argument on the Palestinian side is, “It has already been decided by the International Court of Justice, for example, that the West Bank, including East Jerusalem and Gaza, constitute – to use the nomenclature of the UN including the ICJ, the International Court of Justice, which is the principal judicial body of the United Nations – occupied Palestinian territories.” So, they say, “The issue of territory has been resolved. You want to know what the territorial jurisdiction of the ICC in this case. All you have to do is look at UN resolutions, look at the advisory opinion of the ICJ (the International Court of Justice). They all agree that the West Bank, including East Jerusalem and Gaza, are occupied Palestinian territory.”

Jacobsen: Thank you for the opportunity and your time, Dr. Finkelstein.

Scott Douglas Jacobsen is the Founder of In-Sight: Independent Interview-Based Journal and In-Sight Publishing. He authored/co-authored some e-booksfree or low-cost. If you want to contact Scott: Scott.D.Jacobsen@Gmail.com.

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Image Credit: Norman Finkelstein/Cristiana Radu (Cover Designer). Permission was given by Dr. Norman Finkelstein.

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