MILLS: The Gaza armed conflict (2008-09) and the International Criminal Court 5Apr12 April 5, 2012

 

by Stewart Mills  -  Israel and Palestine Diary  -  4 April 2012

Finding a ‘backdoor’ to prosecute war criminals in the Gaza 2008-09 conflict: jurisdiction by nationality

Recent reports (1, 2) have caused concern that the International Criminal Court cannot investigate or prosecute war crimes committed in the 2008-09 Gaza war.

However, all is not lost, for victims of these crimes, although one door is closed (by territorial jurisdiction), there is a window that is waiting to be opened (jurisdiction by nationality).

The ICC has stated that Palestine is not a state therefore it cannot establish territorial jurisdiction (a process identified in Article 12(a). However, an alternate way to establish jurisdiction is by nationality. That is if an accused is a national of a State Party of the Rome Statute (Article 12(2)(b) then the ICC has jurisdiction to investigate any Article 5 crimes (e.g. war crimes). Such crimes were identified as having been committed in Gaza and Southern Israel by the UN Fact Finding Mission (The Goldstone Report). State Parties of the Rome Statute (1) include countries like United Kingdom, Australia and Jordan.

What this means is that if a British or Australian citizen served in the IDF committed an Article 5 Crime (i.e. a war crime) then the ICC could investigate and prosecute, as both Australia and Britain are State Parties to the Rome Statute of the ICC. Similarly, if a Jordanian, British or Australian national served in a Palestinian armed group and committed an Article 5 – such as firing rockets into southern Israel then they too could investigated and prosecuted.

For this to happen this will require identifying (for example) Australian or British nationals who served in the IDF who may have committed Article 5 crimes.

The Australian Federal Police (AFP) in the past have instigated investigations of alleged perpetrators of war crimes in Former Yugoslavia. Why then could they not investigate potential war crimes in Gaza? Sure, politically it may be a difficult call, but it is an avenue that needs to be tried. Failing to achieve the AFP involvement it may be a matter of civil society or investigative journalists to identify possible suspects who could then be brought to the attention of the ICC. Under Article 15 the ICC Prosecutor may initiate investigations proprio motu (i.e. ICC investigations instigated on the Prosecutors own initiative).

References:

‘ICC won’t probe Gaza war because Palestine ‘not a state’’, Ma’an News Agency, 4 April 2012 http://www.maannews.net/eng/ViewDetails.aspx?ID=473738

Barak Ravid, ICC rejects Palestinian bid to investigate Israeli war crimes during ‘Cast Lead’ Gaza operation, 3 April 2012

http://www.haaretz.com/news/diplomacy-defense/icc-rejects-palestinian-bid-to-investigate-israeli-war-crimes-during-cast-lead-gaza-operation-1.422397

To learn more about the International Criminal Court and the Gaza 2008-09 war see the following article (PDF) I prepared on 1 June 2010:

 

The Gaza armed conflict (2008-09) and the International Criminal Court

 

Does the ICC have sufficient jurisdiction to warrant an investigation, and if so, will it demonstrate that complementarity is an ‘Achilles heel’ or a necessary means to prosecute international crimes?[1]

 

Stewart Mills

1 June 2010

 

“The Government of Israel has a duty to protect its citizens. That in no way justifies a policy of collective punishment of a people under effective occupation, destroying their means to live a dignified life and the trauma caused by the kind of military intervention the Israeli Government called Operation Cast Lead. This contributes to a situation where young people grow up in a culture of hatred and violence, with little hope for change in the future”….Richard Goldstone, 29 September 2009[2]
Part 1. Introduction

Israel’s Operation Cast Lead in Gaza lasted 23 days (27 January to 18 January 2009)[3]. The premise for the armed conflict was to halt rocket attacks on Israel from Gaza. The death toll following the conflict included over 1300 Palestinians and 13 Israelis (4 soldiers were killed by friendly fire and 3 civilians killed by rockets)[4]. Human rights and civil society responded with hundreds of reports primarily against the role of Israel and called for war crimes and crimes against humanity prosecutions.[5] The Office of the Prosecutor (OTP) for the ICC received 213 communications about the conflict alone in a five week period.[6]

 This essay will seek to answer whether the ICC has sufficient jurisdiction to warrant an investigation, and if so, will it demonstrate that complementarity is an ‘Achilles heel’ or a necessary means to prosecute international crimes? This essay will conclude, firstly, that the ICC would fail to find it has jurisdiction on territorial grounds to warrant an investigation into any potential crimes that occurred during the Gaza armed conflict of 2008-09 as both Israel and Palestine are not state parties to the Rome Statute (and more importantly) Palestine despite Palestine’s unique status in the community of nations will be held not to be a state.

 Secondly, the ICC would fail to get jurisdiction on grounds that the Security Council acting under the UN Charter was referring the matter to the OPT of the ICC as the US would block such a resolution. This leaves the only practical option for jurisdiction to be via nationality grounds for example if an accused was the national of a State Party to the Rome Statute (for example a British citizen serving in the IDF, or alternatively a Jordanian national in the Palestinian armed forces).

 Thirdly in the unlikely event that the ICC was found to have jurisdiction it is most likely that if an accused was Israeli then the case would be inadmissible to the ICC on the grounds that Israel would be found to be willing and able to conduct (or had conducted) genuine investigations into the situation. That is Israel would use the principle of complementarity to avoid any prosecution of Israeli nationals by the ICC.

 Finally, given the unlikely situation the ICC would prosecute individuals for Article 5 crimes committed in Gaza and Southern Israel this leaves open only the only avenue for prosecution through national courts on the grounds of universal jurisdiction.

 Part 2. Applicable Law

 This essay primarily focuses on the Rome Statute of the International Criminal Court[7]. Also noted is the Fourth Geneva Convention (of which Israel is duty-bound to apply in Gaza and the West Bank)[8]; the UN Charter and customary international law. As both Israel and Palestine are not state parties to the Rome Statute the biggest test for the Pre-Trial Chamber is to determine if it has jurisdiction to investigate the appearance of Article 5 crimes in Gaza and Southern Israel; and whether the situation is inadmissible and should be deferred to Israel to investigate.

 A. Establishing Jurisdiction

 Firstly, the International Criminal Court “shall satisfy itself that it has jurisdiction in any case before it” (Art 19(1)). Jurisdiction is the “legal power” of the Court to state the law[9] or literally jurisdictio is the power to “speak the law”. This is what Judge Cordova stated was “the first obligation of the Court”[10]. The Rome Statute identifies jurisdiction may be found based on territoriality (Article 12(2)(a)) and nationality (Article 12(2)(b). A codified form of universal jurisdiction may be applied by the UN Security Council acting under Charter VII of the United Nations where a situation may be referred to the OPT regardless of a State being a Party to the Rome Statute (Article 13(b)).[11] To establish jurisdiction, and thus to authorize an investigation into the situation in Gaza and Israel, the Pre-Trial Chamber will need to ask five questions. They are:

  • · Does an Article 5 crime (ie the crime of genocide, crimes against humanity, war crimes or the crime of aggression) appear to have been committed?
  • · Will the UN Security Council (under Chapter VII) refer the matter to the OPT (Art 13(b))?
  • · Has the non-State party made an Article 12(3) declaration? And the related question is Palestine a State within the purposes of the Rome Statute?
  • · Has a State party referred the situation to the OPT (Art 14(1))?
  • · Does the Prosecutor conclude there is a “reasonable basis “ to proceed (Art 15(3))?

 B. Determining if a deferral is warranted and if a case is inadmissible (Complementarity I)

 Once the Prosecutor concludes there is a reasonable basis to proceed the Prosecutor is to notify all State Parties and those States (i.e Israel and Palestine) that would normally exercise jurisdiction over those crimes (Art 18(1)). The next hurdle to consider is what grounds either Israel or the Palestinian Authority could defer jurisdiction under the principle of complementarity (a principle which unlike the ICTY or ICTR statutes gives States the first opportunity to investigate or prosecute individuals[12])?

The Prosecutor would then ask:

  • · Has the State requested the Court (within one month of notification by the OPT)[13] to defer to the State’s investigation of those persons as it has investigated or is investigating its nationals or of others within its jurisdiction with respect to Article 5 crimes[14]?
  • · In the event of a request for deferral does the Prosecutor wish to continue with investigation? And if so has the Prosecutor applied to the Pre-trial Chamber to authorize the investigation (despite a State’s request or deferral) (Art 18(2))?
  • · Does the Pre-Trial Chamber authorize the investigation (Art 15(4))?

C. The grounds for a Pre-Trial Chamber to authorize an investigation (Complementarity II)

 The Pre-Trial Chamber will need to determine whether or not to defer an investigation based on Article 53 and Rule 50. A decision to proceed with an investigation is based on a “reasonable basis” (Rules 48, 53) and involves determination of the following five grounds:

  • · Is the State “unwilling or unable genuinely to carry out the investigation or prosecution” (Art 17(1)(a))?
  • · Is there an “unwillingness or inability of the State genuinely to prosecute” (Art 17(1)(b))?
  • · Is there “sufficient gravity to justify further action by the Court” (Art 17(1)(d)?
  • · Has the person “already been tried for conduct which is subject of the complaint” (Art 17(1)(c).
  • · Were the proceedings “for the purpose of shielding the person…or not conducted independently or impartially in accordance with the norms of due process” (Art 20(a) and (b))/ (Art 17(2)(a) and (c))?

 Once the Pre-Trial Chamber establishes it has jurisdiction and the case is not inadmissible then it can authorise the investigation.

Part 3. Establishing Jurisdiction (II)

3.1 Is there a “situation” where an Article 5 crime “appears to have been committed” (Art 13 (a))?

 The UN Fact-Finding Mission in Gaza (The “Goldstone Report”) concluded the situation in Gaza and Israel is one in which there appears Article 5 crimes may have been committed, including war crimes and possibly crimes against humanity[15]. The Mission documents the appearance of the commission of the following breaches:

(a) Crimes Against Humanity (Article 7) including Persecution[16] and intentionally causing great suffering[17]. For example where Palestinians were deprived of their means of sustenance, employment, housing and water, denial of freedom of movement[18] or where Palestinian armed groups from Gaza fired rockets or mortars which constituted “indiscriminate attacks upon the civilian population of southern Israel.”[19]

(b) War Crimes (Article 8) including wilful killing[20], torture[21]. Extensive destruction of property[22], Intentional attack on civilians[23], Outrages upon personal dignity.[24] For example: The targeting of a mosque,[25] killing members of the al-Samouni family[26], severe beatings of prisoners[27], the attack and destruction of Gaza prison and the Palestinian Legislative Council[28]; Palestinian armed forces firing of rockets into Southern Israel is one such war crime and may constitute a crime against humanity[29].

(c) War Crimes (4th Geneva Convention) including: collective penalties[30], attack of hospitals[31], precautions in attacks to avoid loss of civilian life[32] and attacks on the civilian population[33]. For example: declarations made by various Israeli officials who have indicated the “intention of maintaining the blockade of the Gaza Strip until the release of Gilad Shalit”[34] and detention of members of the Legislative Council[35]; attack on Al-Quds[36] and al-Wafa hospitals[37] with artillery shells including white phosphorus; and the shelling of the field office compound of the UNRWA with high explosives and white phosphorus munitions[38].

Conclusion: The UN Fact Finding Mission clearly demonstrated there were numerous of Article 5 crimes committed. Both Israel and Palestinian armed committed breaches.

3.2. Will there be a UN Security Council Article 13(b) referral?

 The ICC would fail to get jurisdiction of such the situation in Gaza and southern Israel as it is highly improbable that the US would allow the UN Security Council (under Chapter VII) to refer the situation to the ICC. Evidence for this claim is demonstrated by looking at the United State’s consistent voting record in the General Assembly and Security Council and its diplomatic pressure internationally and in intergovernmental Agencies to protect Israeli interest which are seen in America’s best interests.[39]

3.3. Is Palestine’s Article 12(3) declaration valid?

 On 22 January 2009, the Palestinian National Authority lodged a declaration with the Registrar of the International Criminal Court under article 12(3) which allows States not party to the Statute to accept the Court’s jurisdiction back until 1 July 2002.[40] That is Palestine sought to declare retrospective and prospective jurisdiction of the Court. Palestine’s use of the Article 12(3) declaration is not without precedent. Take for example Côte d’Ivoire, “while not being a party to the Rome Statute, accepted the exercise of jurisdiction by the Court regarding crimes committed on its territory since the events of 19 September 2002”.[41] A similar declaration extending the jurisdiction back in time was made by Uganda in December 2003.[42] Any such declaration would be on an ad hoc basis and specified for the situation in the declaration (Art 87(5); Rule 44(2)).


3.3.1 Establishing territorial jurisdiction

Is Palestine a State?

Perhaps the most paramount legal question facing the OPT is ‘is Palestine a state’? This is critical as Article 12(3) provides a “State which is not a Party to…[ the Rome] Statute…may by declaration…accept the exercise of jurisdiction by the Court with respect to the crime in question”. The Palestinian Authority lodged such a declaration in January 2009. As a result there have been numerous submissions advocating one side or the other. The OPT has summarized these various positions.[43]

Those that argue Palestine is not a State hold the purported declaration by Palestine to recognize the Court’s jurisdiction is invalid as it does not meet the necessary grounds of Article 12(3).[44] They argue that Palestine is not a state given it is not a member of the United Nations, nor is recognized as a state by Western European nations, the US, Canada, Australia and New Zealand. Their argument if further supported by the PLO’s insistence that Palestine is not a state.

Alternatively, there are those that argue that Palestine is a state (albeit under belligerent occupation) as it meets the 4 grounds of statehood Montevideo Convention of 1933 (Convention of Rights and Duties of States)[45]. That is:

“The state as a person of international law should possess the following qualifications:

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”[46]

Palestine has a permanent population of 4.1 million.[47] Palestine has defined territory by the UN Security Council Resolution 242 which specifically defines territory occupied by Israel; including East Jerusalem, the West Bank and Gaza Strip. Palestine has a government. The Palestine Liberation Organisation is the international representative of the Palestinian people and the Palestinian National Authority is elected by the people of Palestine. The current President is Mahmoud Abbas and the current Prime Minister is Salam Fayyad. Palestine was recognized by 104 countries in its 1988 declaration of independence[48]. Palestine is a member of numerous international ’s membership in a range of international organizations that require statehood for membership,. For example Palestine is a member of the International Federation of the Red Cross and Red Crescent Societies (2006)[49], the Olympic Games Committee[50], the Group of 77[51], Non-Aligned Movement, Economic Commission for Western Asia (ECWA)[52], the Organization of the Islamic Conference[53] and the Arab League.

Similarly Palestine has a unique status within the United Nations. Despite Palestine not being a dejure member of the United Nations in many ways I would argue it operates as a defacto member given its role as a permanent observer to the United Nations since 1974[54]. This role is not insignificant as Palestine has the right of reply in General Assembly debate and it is permitted to speak at the UN Security Council. Such rights formally are limited to UN state members.

Palestine has a unique status with the ICC. Palestine attended the Rome Conference: Palestine attended the as an observer[55]. Palestine was the only observer listed as an organzation. And curiously in the order of annexes Palestine was the first political unit that followed the list of states.[56] The ICC has not outright dismissed Palestine’s declaration. Curiously it has promoted the declaration as evident by the two Office of the Prosecutor/ICC brochures with a photograph of the Prosecutor and Palestinian representative(s) on 22 January 2009[57] and 13 February 2009.

A final argument to consider is how the term ‘State Party’ is construed. While it is clear the Court is to construe a crime strictly (Article 22(2)); it may be open to the Court to construe a term such as ‘State Party’ in “good faith” and “in the light of its object and purpose”[58] and using all the elements of international law[59]. This would mean a more liberal view of what constitutes a state especially in the unusual case of Palestine and especially when the purpose of such a characterization is to meet the key elements of the Preamble such as to “put an end to impunity”. It would be only on such a construction that Palestine’s declaration would be accepted.

Conclusion: Despite the hope and possibility that the ICC would characterize Palestine as a state or in the least a political entity that could make such a declaration, it is most likely that the ICC will construe the Statute narrowly. This would mean the ICC would not have jurisdiction on territorial grounds.

 

3.3.2 Establishing jurisdiction by nationality

The ICC can exercise jurisdiction if an accused is a national of a State Party of the Rome Statute (Article 12(2)(b). This is perhaps the only real practical means to establish the ICC’s jurisdiction over any Article 5 crimes that appear to have been committed in Gaza and Southern Israel. A possible scenario of such an occurrence is if there was an appearance that a British citizen served in the IDF committed an Article 5 Crime; or alternatively a Jordanian national (who served in the Palestinian armed forces) committed an Article 5 – such as firing rockets into southern Israel. Any citizens from Australia with dual citizenship or nationality might also be liable for such prosecution.

Part 4. Is there a ‘reasonable basis’ to proceed with the investigation?

If Palestine’s declaration was found to be valid it is likely that from the evidence of the UN Fact Finding Mission that there is a reasonable basis for the Prosecutor to proceed with the investigation, so long as Israel is not able to prove that Israel has already conducted or in the process of conducting genuine investigations into the situation.

The Pre-Trial Chamber will need to determine whether or not to defer an investigation based on Article 53 and Rule 50. A decision to proceed with an investigation is based on a “reasonable basis” (Rules 48, 53) and involves determination of the following four grounds:

  • · Is the State “unwilling or unable genuinely to carry out the investigation or prosecution” (Art 17(1)(a))?
  • · Is there an “unwillingness or inability of the State genuinely to prosecute” (Art 17(1)(b))?
  • · Is there “sufficient gravity to justify further action by the Court” (Art 17(1)(d)?
  • · Has the person “already been tried for conduct which is subject of the complaint” (Art 17(1)(c).
  • · Were the proceedings “for the purpose of shielding the person…or not conducted independently or impartially in accordance with the norms of due process” (Art 20(a) and (b))/ (Art 17(2)(a) and (c))?

What are the grounds to defer a case to the jurisdiction of the States where the crime was committed?

 (A) The Israeli juridical system

 It is unlikely that the ICC will be found to have jurisdiction to investigate the alleged Article 5 crimes committed during the Gaza-Israel conflict then Israel. But if such a situation occurred then Israel could request to defer the investigation to the Israel’s jurisdiction on the grounds it is investigating or has investigated its nationals (Article 18(2)). Israel would seek to demonstrate it is willing and is and has conducted genuine investigations or prosecution (Art 17(1)(a)). Israel would cite the two reports it has made following the Gaza war that document the progress of Israel’s investigations into any violations of international humanitarian law. The first report it would say was launched even before the Goldstone Report was completed. The second report was tabled with the UN General Assembly in response to the claims made in the Goldstone Report.

Israel would seek to demonstrate the similarities in the investigative systems in Israel with “other democratic states”[60]. That is Israel has a court martial framework to adjudicate criminal indictments alleging violations of the Law of Armed Conflict.[61] It would establish the various elements of investigation starting from the preliminary military review (known in Israel as a Command review). This is followed by a review by the Military Advocate General (MAG) which would decide whether or not to instigate criminal charges. Israel would argue the independence and impartiality of the MAG[62]. It would show the MAG’s decision is reviewable by civilian authorities such as the Attorney General[63] and the Israeli Supreme Court[64].

The IDF would argue it has already launched 150 investigations arising from the conflict in Gaza. Of those 36 have been referred for criminal investigation[65]. The IDF would argue of the effectiveness of Israel’s justice system and cite international approval. For example the Spanish judgment that closed proceedings initiated in Spain under universal jurisdiction for an IDF attack in 2002 given Israel’s ability to fully and fairly investigate the charges itself[66]. The IDF would argue from “January 2002 through December 2008, there were 1,467 criminal investigations into alleged misconduct by IDF soldiers, leading to 140 indictments against soldiers for alleged crimes committed against the Palestinian population.”[67] Examples of such criminal offences would include:

  • · aggravated assault, for both his own use of force as well as the use of force by his subordinate[68]
  • · the Military Advocate General’s Corps filed an appeal to seek a harsher sentence for a senior officer convicted of threatening the child of a suspected terrorist and using a civilian as a human shield.[69]

In relation to the specific offences alleged in the Goldstone Report Israel would argue the following actions have been done.

(a) The shelling of the UNRWA: The IDF would agree that in the case of the shelling of the UNRWA compound that several artillery shells were fired in violation of rules of engagement prohibiting their use of such artillery near populated areas. The IDF would argue that it had investigated the misconduct and acted appropriately as the Commander of the Southern Command disciplined a Brigadier General and a Colonel for exceeding their authority in a manner that jeopardized the lives of others[70]. Israel would deny involvement in the following (and therefore no reason to order a criminal investigation)

(b) The attack on the Gaza wastewater treatment plant and the flour mill: Israel stated the Military Advocate General had reviewed the Command finding in relation to the attack on the Gaza wastewater treatment plant and concluded the damage was not caused by a pre-planned IDF attack and suggested it may have been Hamas trying to slow IDF movements[71]. The MAG concluded that the attack on the El-Badr Flour Mill was a legitimate target to allegedly “neutralize immediate threats”[72]. No reason for a criminal investigation (IDF para 174). The Military Advocate General:

“acknowledged that the investigations had found operational lapses and errors in the exercise of discretion. However, given the complexities of decision making under pressure, particularly when the adversary has entrenched itself within the civilian population, such mistakes do not in themselves establish a violation of the Law of Armed Conflict”[73].

Israel would argue the Military Advocate General has already referred 36 separate incidents for criminal investigation. The Military Advocate General determined that “the nature of the alleged incidents and/or the evidentiary record raised a reasonable suspicion that allegedly criminal behaviour occurred”[74]. Nineteen of these were for alleged shooting towards civilians[75]. One indictment has been for credit card theft (for the withdrawal of the equivalent of more than $400).[76] To further establish the credibility of Israel’s investigation system Israel would argue that all investigations are subject to review so it is possible that different conclusions will emerge as these cases advance through Israel’s justice system.[77]

 Arguments against the Israeli report of a genuine and willing investigations

 In response to the positive assertions by the Israel the UN Fact-Finding Mission found the Government of Israel refused to cooperate and implicitly refused to give the Mission access to Gaza, the West Bank and to southern Israel.”[78] Similarly there would be numerous Palestinian groups and Israeli human right groups like B’Tselem that might offer an alternative view to the Israeli military and civil justice system

Conclusion: Despite the evidence of failings within Israel’s judicial system it is unlikely that Israel would be found by the ICC to be unwilling to conduct genuine investigations. As such even in the remote instance that the ICC established jurisdiction then Israel would more than likely seek a deferral.

(B) The Palestinian judicial system

In contrast to the likelihood that Israel could defer any investigations to Israel’s jurisdiction it would be much more difficult for the Palestinian Authority to show the same level of impartiality and due process. Hamas is considered a terrorist organization so it has no chance of being considered impartial. In the case of the PA, the ICC would take priority for any investigation as it is likely that the PA would be found to have an “inability” (Article 17(1)(b) to prosecute given the lack of influence Fatah has in Hamas controlled Gaza. [79]

Conclusion

In answering the question ‘does the ICC have sufficient jurisdiction to warrant an investigation, and if so, will it demonstrate that complementarity is an ‘Achilles heel’ or a necessary means to prosecute international crimes’? The answer depends on your perspective. From the perspective of Israel, in the unlikely situation that the ICC could establish jurisdiction to investigate any Article 5 crimes then Israel could use the lifeline[80] offered by the principle of complementary that allows a state priority over prosecutions if it is willing to conduct (or has conducted) genuine investigations. Whether this is or not indeed the case only time will tell. But there is a real concern that such crimes (despite the rhetoric) are not being properly brought to trial. As I write this now I have just learnt of the boarding and the killing of a number of protestors on a peace flotilla that was bound for Gaza to symbolically break the siege. Unsurprisingly Israel blames the protestors for the deaths and say their commandos were the ones attacked so they responded in self-defence. By chance ABC TV screened Australian story which described of an Australian UN peace keeper who narrowly missed being killed during the 2006 Lebanon war when her UN station was directly hit by Israeli fire killing four UN peace keepers. It is in this context that the metaphor of the Achilles heel and the ICC is apt. Only it appears that in the case of Israel and Palestine there are two Achilles heels for prosecution one for jurisdiction and one for complementarity. Sadly this means that the ICC will offer no protection (in the foreseeable future) for the commission of Article 5 crimes in Israel and Palestine.

 

 


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[1] Word Count – Body text 4072; Footnotes 1201 (Total words = 5273 words).

[2] R Goldstone, “Statement by Richard Goldstone on behalf of the Members of the United Nations Fact Finding Mission on the Gaza Conflict before the Human Rights Council”, Human Rights Council 12th Session – 29 September 2009

http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm

[3] Israel announced a unilateral ceasefire on the 17 January, timed to precede the inauguration of President Elect Barack Obama on the 20 January. Palestinian forces announced a unilateral ceasefire on 18 January. See Johan D. van der Vyver, “Legal Ramifications Of The War In Gaza”, 21 Fla. J. Int’l L. 403, December, 2009, p. 403.

[4] Amnesty International, Israel/Gaza: Operation ‘Cast Lead’ – 22 Days of Death and Destruction, 2 July 2009

http://www.amnestyusa.org/document.php?id=ENGMDE150212009 (Accessed 30 May 2010).

[5] On one website alone there are 66 reports that document the effect of Operation Cast Lead in addition to those reports that relate to separate issue of the three year long siege of Gaza. The reports are by such groups as The International Committee of the Red Cross, Human Rights Watch, Amnesty International, B’Tselem, Gisha, Palestinian Centre for Human Rights, The Crisis Group, Al Haq, Adalah, National Lawyers Guild, Centre on Housing Rights and Evictions (COHRE); and by UN bodies such as the Un Human Righst Council, UNICEF, the World Health Organization: See Palestine Media Project, Gaza http://www.palmediaproject.org/infobulletins/IBgaza2000.htm (Accessed 27 May 2010).

[6] For example between 27 December 2008 and 6 February 2009. These communications were under article 15 Rome Statute see The Office of the Prosecutor to the ICC, Visit of the Minister of Justice of the Palestinian National Authority, Mr Ali Khashan, to the ICC (22 January 2009), The Hague http://www.icc-cpi.int/NR/rdonlyres/979C2995-9D3A-4E0D-8192-105395DC6F9A/280603/ICCOTP20090122Palestinerev1.pdf (Accessed 27 May 2010).

[7] A/CONF.183/9

[8] Goldstone report, para 326.

[9] Tadic, ibid, para 10.

[10] Judge Cordova, 1956 ICJ Reports 77, 163 (Advisory Opinion) cited in Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para 18 [the prosecutor in this stage in the Tadic case was Richard Goldstone]. http://www.icty.org/x/cases/tadic/acdec/en/51002.htm

[11] Antonio Cassese, International Criminal Law, 2nd ed, Oxford University Press, Oxford, 2008, p. 337.

[12] Preamble para 10, Article 1, Article 17(1)(a), Article 18(2), Article 19(2)(b).

[13] Art 18(1)

[14] Art. 18(2)

[15] Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf (Accessed 25 May 2010).

[16] Article 7(1)(h)

[17] Article 7(1)(k)).

[18] UN paras 75, 1335.

[19] para 108

[20] Article 8 (2)(a)

[21]Article 8(2)(a)(ii)

[22]Article 8(2)(a)(iv)

[23] Article 8(2)(b)(i)

[24] Article 8(2)(b)(xxi)

[25] para 45

[26] Human Rights Watch White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead, August 2009, http://www.hrw.org/sites/default/files/reports/ioptwf0809web_1.pdf (Accessed 24 May 2010).

[27] para 1175

[28] para 32

[29] para 108

[30] Article 33, 4th Geneva Convention

[31] Article 8 of the Fourth Geneva Convention

[32] Article 57(2)(a)(ii) of Additional Protocol I of the Geneva Conventions; and Rule 15 Jean-Marie Henckaerts, “Study on customary international humanitarian law”, International Review of the Red Cross, Volume 87 Number 857, March 2005, p. 199 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/customary-law-rules-291008/$FILE/customary-law-rules.pdf (Accessed 30 May 2010); Volume I of the study on customary international humanitarian law. http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-857-p175/$File/irrc_857_Henckaerts.pdf

[33] Article 51(2)) Additional Protocol II

[34] para 78

[35] para 91.

[36] paras 596, 629

[37] para 652

[38] para 38

[39] Jewish Virtual Library, ‘U.S. Vetoes of UN Resolutions Critical of Israel (1972-2006)”, http://www.jewishvirtuallibrary.org/jsource/UN/usvetoes.html (Accessed 31 May 2010).

[40] Letter from the Minister of Justice of the Palestinian Authority to the Registrar of the ICC, 21 January 2009 [but lodged on 22 January 2009] http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf A9ccessed 27 May 2010).

Letter from the Registrar of the ICC to the Minister of Justice of the Palestinian authority, 23 January 2009 http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279778/20090123404SALASS2.pdf (Accessed 27 May 2010)

[41] Dominik Zimmerman, ICL Database and Commentary http://www.iclklamberg.com/Statute.htm#_ftn136 (Accessed 30 May 2010).

[42] Ibid.

[43] The International Criminal Court, “Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements”, Office of the Prosecutor , 3 May 2010, http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281989/PALESTINEFINAL2_2_.pdf (Accessed 28 May 2010).

[44] Johan D. van der Vyver, Legal Ramifications Of The War In Gaza, 21 Fla. J. Int’l L. 403, December, 2009

[45] Thomas D Grant, The Recognition of States: Law and Practice in Debate and Evolution, Praeger, Westport CT, 1999, p. 5

[46] Article 1, Convention on Rights and Duties of States (inter-American); December 26, 1933 [Montevideo Convention]

http://avalon.law.yale.edu/20th_century/intam03.asp (Accessed 20 May 2010).

[47] Palestine total population is 4,119,083 – Gaza (1,604,238 (July 2010 est.)) https://www.cia.gov/library/publications/the-world-factbook/geos/gz.html West Bank (2,514,845 ), https://www.cia.gov/library/publications/the-world-factbook/geos/we.html Palestinian Central Bureau of Statistics, http://www.pcbs.gov.ps/.

[48] General Assembly Resolution 43/177 of 15 December 1988. 4 Pal. Y.B. Int’l L. 294 (1987-1988) http://books.google.com/books?id=DWhgIe3Hq98C&dq=isbn:9041103414

 

[49] The International Federation of the Red Cross and Red Crescent Societies, Directories: National Red Cross and Red Crescent Societies

http://www.ifrc.org/address/directory.asp (Accessed 28 May 2010). A negative response to this would be Michael Meyer, “Questions And Answers Concerning Issues Related to the 29th International Conference?” Standing Commission on the Red Cross and Red Crescent

http://www.rcstandcom.info/conference_qa.shtml (Accessed 28 May 2010).

[50] National Olympic Committees: Palestine, Olympic.org

http://www.olympic.org/en/content/National-Olympic-Committees/palestine/

[51] Member States of the Group of 77, The Group of 77 at the United Nations

http://www.g77.org/doc/members.html (Accessed 26 May 2010).

[52] Economic and Social Commission for Western Asia, ESCWA Member Countries http://www.escwa.un.org/members/map.asp (Accessed 26 May 2010)

[53] Member States, Organization of the Islamic Conference

http://www.oic-oci.org/member_states.asp (Accessed 26 May 2010).

[54] General Assembly, A/RES/3237(XXIX), Observer status for the Palestine Liberation Organization, 22 Nov. 1974.

http://unispal.un.org/UNISPAL.NSF/0/512BAA69B5A32794852560DE0054B9B2

Voting summary: Yes: 95, No: 17, Abstentions: 19, Non-Voting: 7, Total voting membership: 138, UNBISNET.un.org
Examples of abstentions Australia, New Zealand; examples of those in favour USSR, China, African and Middle Eastern States

[55] Annex III List Of Organizations And Other Entities Represented At The Conference By An Observer http://www.un.org/icc/iccfnact.htm

[56] Other observer’s had the title of intergovernmental organization; other entity; UN agency or programme; or nongovernmental organization, cited Ibid

[57] Office of the Prosecutor (ICC), Visit of the Minister of Justice of the Palestinian National Authority, 22 January 2009 http://www.icc-cpi.int/NR/rdonlyres/979C2995-9D3A-4E0D-8192-105395DC6F9A/280603/ICCOTP20090122Palestinerev1.pdf; Visit of the Palestinian National Authority Minister of Foreign Affairs and Minister of Justice, 13 February 2009 http://www.icc-cpi.int/NR/rdonlyres/4CC08515-D0BA-454D-A594-446F30289EF2/280869/PNAMFA130209.pdf

[58] Article 31 General rule of interpretation of treaties. Vienna Convention of the Law of Treaties 1969.

[59] Article 21 Rome Statute.

[60] The State of Israel, Gaza operation investigations: an update, January 2010 cited in Follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict, Annex 1, A/64/651, 4 February 2010, para 12 http://www.un.org/Docs/journal/asp/ws.asp?m=A/64/651 (Accessed 30 May 2010).

[61] Ibid, para 73.

[62] Ibid, para 16.

[63] Ibid, para 31.

[64] Ibid, para 6.

[65] Ibid, para 9.

[66] Decision no. 1/2009, 17 July 2009 (plenary), of the National Criminal Court of Appeals (“Sala de lo Penal de la Audiencia Nacional”), at 24, regarding Preliminary Criminal Proceedings no. 154/2008 of the Central Investigation Court no. 4. Cited Ibid, para 42.

[67] Ibid, para 168

[68] Military Prosecutor v. Lt. A.M. and Sgt. A.G., C/125+126/09 cited Ibid, para 70.

[69] Lt. Col. Geva v. Chief Military Prosecutor, A/153/03 ¶ 50 (5 August 2004) cited Ibid para 70

[70] Ibid, para 108.

[71] Ibid, para 160-162

[72] Ibid. para 171.

[73] Ibid. para 122.

[74] Ibid para 131.

[75] Ibid. para 134.

[76] Military Prosecutor v. Sergeant A.K., S/153/09 ¶ 12 (11 August 2009) cited Ibid para 137.

[77] Ibid. para 94.

[78] “Statement by Richard Goldstone on behalf of the Members of the United Nations Fact Finding Mission on the Gaza Conflict before the Human Rights Council”, Human Rights Council 12th Session – 29 September 2009

http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm

[79] Not forgetting that ultimate control rests with the State of Israel which controls the border, what enters and leaves the territory and the effective military force that can be utilized by Israel against Gaza.

[80] Geoffrey Robertson, Crimes Against Humanity, 3rd ed, Penguin, Camberwell (Vic), 2006, p. 447.

 

http://untreaty.un.org/cod/icc/statute/romefra.htm

 

Article 5

Crimes within the jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

  • • (a) The crime of genocide; (b) Crimes against humanity; 
(c) War crimes; 
(d) The crime of aggression.

Article 12

Preconditions to the exercise of jurisdiction

 

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

 

 

Article 13

Exercise of jurisdiction

 

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

 

Article 14

Referral of a situation by a State Party

 

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

 

Article 15

Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

 

Stewart Mills works in the education sector. He has been a teacher in high school and primary schools and campaign coordinator for Jubilee Australia.  He completed an MA in Peace and Conflict Studies in 2002 on the Palestinian-Israeli conflictand in 2011  completed a law degree from the University of New South Wales.  He has organised and worked on various interfaith projects and is a member of the Canberra Ecumenical Working Group on Palestine and Israel.


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