International Criminal Court will distinguish between Palestinian "liberation" terror “for the sake of freedom” and Israeli “organized terror,” says PA Minister
Headline: “Al-Shalaldeh: The time has come to achieve justice for our people and settle accounts with the occupation”
The following is an excerpt of an interview with PA Minister of Justice Muhammad Al-Shalaldeh regarding the International Criminal Court -Ed.
“There are those who think that the jurisdiction [of the International Criminal Court (ICC)] will be limited because Israel has an independent and recognized legal system, as opposed to other states where investigation would be difficult due to the lack of an independent and fair legal system. Hamas’ [legal] system would be more exposed to this point, due to the weakness of the justice system there, so what will be the Palestinian political and legal response?
Minister Al-Shalaldeh responded to this: ‘In the ICC regulations there is a text that explains the principle of complementarity. The ICC has authority, and according to this authority the ICC does not harm the national sovereignty of the state. In other words, the international criminal justice system, which the ICC represents, complements the national justice system… The one responsible for the violations must be put on trial before a national court, and if he is sentenced the ICC does not intervene in the national justice system.
When does the ICC intervene and when does it have authority in a case of war crimes, genocide, or crimes against humanity being committed? It intervenes when the national justice system collapses in this or that state, or when trials are held on the matter for the sake of appearance. Then the ICC has a right to intervene. At this opportunity, we should mention what Israel did following the last war against Gaza (i.e., the 2014 Gaza war, which was initiated by large scale Hamas rocket attacks). It claimed that it established an investigative committee for the Israeli officers and soldiers, but in reality we did not hear of any criminal sentence against any soldier or officer. No trial was held. There was just an investigation against an Israeli soldier who stole a credit card. Regarding the Palestinian side, as far as I know, it has not conducted any investigation on this matter. In such a case, it is the ICC’s right to fulfill its role in this field.
I want to explain a most important matter. When we say that the ICC’s decision applies to crimes that have been committed or will be committed in the Palestinian territory – without defining who is responsible for this, whether it is the Israeli side or whether it is the Palestinian side, given that international law does not exclude anyone and the State of Palestine is a party to this agreement – nevertheless there is a difference between the national liberation movements that the PLO is leading, as an occupied people fighting for the sake of freedom, independence, and its right to self-determination, and the organized terror of the occupying government. The ICC will take this into account, but if crimes or violations were committed by the liberation movements against civilians, or against international humanitarian law, or against the Geneva Convention – that is a different matter.
At this opportunity I emphasize that Protocol I that was appended to the Geneva Convention in 1977 notes in Article 1-4 that the wars in which liberation movements, which are fighting for the right to self-determination against a foreign occupation and colonialist rule, participate are considered international armed conflicts. This has legal consequences, and we are protected by virtue of this. In other words, international law considers the liberation movements’ prisoners as prisoners of war (sic., Palestinian terrorists do not meet international conditions of being prisoners of war, such as wearing a uniform, openly carrying a weapon, and intending to follow the rules of warfare), and they must not be punished for what they fought for in the framework of a legitimate struggle according to the principles and rules of international law and international humanitarian law.’
[Question:] The battle and confrontation in the international legal arena are large and complicated. What are the strengths that the Palestinian side has achieved as a result of this step?
Al-Shalaldeh: ‘The Palestinian side – which is represented by the State of Palestine, the [PA] Ministry of Foreign Affairs, and the civil society organizations – provided the ICC with all the legal cases based on criminal evidence, reports by human rights organizations, and proper legal documentation. ICC Chief Prosecutor [Fatou Bensouda] and the ICC Pre-Trial Chamber relied on this when they decided to apply jurisdiction to the Palestinian territory. They also have an idea and belief that war crimes were committed in the Palestinian territory, and currently the State of Palestine is regularly providing the ICC with all the documents, evidence, proof, and references that strengthen the Palestinian claim that Israeli violations were committed against the Palestinian people in 2014, regarding the settlers, and regarding the prisoners. This is in addition to other complementary cases that were presented to the ICC.’”