ICC asks PA, Israel to declare if Oslo still applies in war crimes debate

The ICC gave the PA until June 10 to respond and gave Israel until June 24 to respond.

The International Criminal Court has asked the Palestinian Authority and Israel to declare whether the Oslo Accords are still legally binding in the war crimes case it is currently assessing.

The answers which the parties give could have huge implications for whether a war crimes case is brought against Israelis relating to the 2014 Gaza War, the settlements enterprise and the 2018-2019 Gaza border conflict.

The request comes following PA President Mahmoud Abbas’s May 19 declaration that, in frustration with Israeli noises about making a West Bank annexation move, the PA no longer viewed itself as bound by the Oslo Accords.

Although the ICC Pretrial Chamber technically issued its order on Tuesday asking the parties to respond, it was only publicized on Wednesday.

The ICC gave the PA until June 10 to respond and gave Israel until June 24 to respond.

Israel and its allies have claimed that the Oslo Accords foreclose the PA from seeking ICC involvement in any potential criminal issue and from seeking statehood absent a deal between the parties.

In a brief filed by the Czech Republic supporting Israel, the argument was that the Oslo Accords give Israel exclusive jurisdiction over criminal issues in the West Bank relating to Israel, proving that there is no “State of Palestine” to send a case to the ICC.
Only a state can usually refer a case to the ICC.

Responding to these arguments, ICC Prosecutor Fatou Bensouda, who supports opening a full criminal war crimes probe of Israel and Hamas, has said that, “State practice demonstrates that Oslo provisions derogating from the right of the Palestinian people to self-determination do not apply.”

In other words, Bensouda – and the PA for that matter – have argued that even if the Oslo Accords were not nullified, the ICC can move forward with the war crimes case.

But it is a dicey and gray area of law and a potential winning argument for Israel which could knock the war crimes case out before it even comes to interrogations, let alone indictments.

In contrast, if the Oslo Accords do not apply, the PA can say that Israel has lost one of its best defenses to ICC involvement.

There are many other potential Israeli defenses, but the Oslo Accords have always been held up as a key one because the PA voluntarily entered the deal in the 1990s – long after the Six Day War.

The Foreign Ministry said it had no response at this time.

Bensouda announced her intent to move forward against Israel and Hamas on December 20, but requested an endorsement from the ICC Pretrial Chamber.

Even before this latest development, it was unclear when the ICC would issue its ruling.

With this latest legal curveball, it is likely that no ICC ruling will be issued before August at the earliest.

Bensouda herself is only in office until June 2021.