International law and the future of the Israeli-Palestinian conflict.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, April 9, by its moderator Sean Murphy of George Washington University Law School, who introduced the panelists: Ken Anderson of American University Washington College of Law, Nimrod Karin of New York University School of Law, and William Schabas of Middlesex University London. *

INTRODUCTORY REMARKS BY SEAN MURPH ([dagger])

Good morning, I am Sean Murphy, a Professor of International Law at George Washington University and a Member of the UN International Law Commission.

I would like to welcome everyone to this panel on "International Law and the Future of the Israeli-Palestinian Conflict."

Despite a long-term peace process and the general reconciliation of Israel with Egypt and Jordan, Israelis and Palestinians have failed to reach a final peace agreement, one that would result in a two-state solution, involving the recognition of an independent Palestinian state alongside the state of Israel. The remaining key issues are: mutual recognition, borders, security, water rights, control of Jerusalem, Israeli settlements, Palestinian freedom of movement, and resolving Palestinian claims of a right of return for their refugees.

The most recent round of Israeli-Palestinian peace talks ended in failure. As is well-known, the two parties engaged in direct negotiation are the Israeli government, currently led by Benjamin Netanyahu, and the Palestine Liberation Authority Organization (PLO), currently headed by Mahmoud Abbas. The official negotiations are mediated by an international contingent known as the Quartet on the Middle East represented by a special envoy, which consists of the United States, Russia, the European Union, and the United Nations. The Arab League and Egypt are also important participants.

The question for this panel is how, if at all, might international institutions play a role in influencing the realization of a lasting peace agreement?

Recall that in 2004, the International Court of Justice (ICJ) issued an extensive advisory opinion analyzing the legal consequences of the construction of a barrier in the occupied Palestinian territory, finding such construction to be unlawful on various grounds. Might there be a future role to play for the ICJ in resolving this conflict?

Recall as well that the Human Rights Council (Council), since its creation in 2006, has repeatedly addressed the Israeli-Palestinian conflict, and has even been criticized as doing so disproportionately in the context of the overall work of the Council. Might there be a future role to play for the Council in resolving this conflict?

Recall that in 2011, Palestine was admitted to membership in the UN Educational, Scientific and Cultural Organization (UNESCO), and in 2012, the UN General Assembly upgraded Palestine's status at the United Nations to being a "non-member observer state." Might there be a future role to play for the General Assembly or the UN specialized agencies in resolving this conflict?

And most recently, Palestine acceded to the Rome Statute (Statute) establishing the International Criminal Court (ICC or Court), and asked the Court to exercise jurisdiction over any crimes committed in the occupied territories of East Jerusalem, the West Bank, and Gaza from June 2014. This covers events during last summer's conflict between Israel and militants in Gaza. What role can we expect the ICC to play in relation to resolution of the Israeli-Palestinian conflict?

To help us work through these and other issues, we have a wonderful panel, consisting of William Schabas of Middlesex University London, Nimrod Karin of New York University School of Law, and Ken Anderson of American University Washington College of Law. Unfortunately, Diana Butu of the Harvard Extension School was unable to join us at the last minute for personal reasons.

REMARKS BY WILLIAM SCHABAS *

On January 16, 2015, the Prosecutor of the International Criminal Court (Prosecutor) announced that she was conducting a "preliminary examination" into the "situation in Palestine." (1) As a matter of both practice and policy, the Office of the Prosecutor undertakes a "preliminary examination" when a state formulates a declaration pursuant to article 12(3) of the Rome Statute. The Prosecutor stated that she acted pursuant to the Government of Palestine's accession to the Rome Statute on January 2, 2015 as well as to its declaration of January 1, 2015, lodged under Article 12(3) of the Rome Statute accepting the Court's jurisdiction over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014." (2)

The Rome Statute entered into force for the State of Palestine on April 1, 2015, giving the Court territorial and active personal jurisdiction from that date. However, the Court can also exercise jurisdiction as of June 13, 2014 as a result of the declaration formulated under article 12(3). This was the second such declaration made by Palestine. In January 2009, Palestine gave jurisdiction to the Court as of July 1, 2002. However, in April 2012, the Prosecutor of the Court said that he did not consider the declaration to be effective because of uncertainty over whether Palestine could be considered a "State" as this term is used in article 12(3) of the Statute. At the time, the Prosecutor said this was a matter for the UN General Assembly or, possibly, the Court's Assembly of States Parties. That issue was clarified in November 2012 when Palestine was admitted to the General Assembly as a nonmember observer state. The Prosecutor has said that she does not consider this to validate the January 2009 declaration, but that Palestine is empowered to accept the jurisdiction of the Court subsequent to the General Assembly resolution of November 2012.

The Prosecutor's assessments have been contested by Israel, the United States, and Canada. They have taken the view that Palestine cannot yet be considered to be a "State." Article 125 of the Rome Statute declares that it "shall be open to accession by all States." The silence of the...

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