Al-Jazeerah: Cross-Cultural Understanding
Opinion Editorials, June 2019
Facing the Facts: Israel Cannot Escape ICC Jurisdiction
The Chief Military Advocate General of the Israeli army, Sharon Afek, and the US Department of Defense General Counsel, Paul Ney, shared a platform at the ‘International Conference on the Law of Armed Conflict’, which took place in Herzliya, Israel between May 28-30, 2019.
Their panel witnessed some of the most misconstrued interpretations of international law ever recorded. It was as if Afek and Ney were making up their law on warfare and armed conflict, with no regard to what international law stipulates.
Unsurprisingly, both Afek and Ney agreed on many things, including that Israel and the US are blameless in all of their military conflicts, and that they will always be united against any attempt to hold them accountable for war crimes by the International Court of Justice (ICC).
Their tirade against the ICC mirrors that of their leaders. While Israeli Prime Minister Benjamin Netanyahu’s anti-ICC position is familiar, last April, US President Donald Trump virulently expressed his contempt for the global organization and everything it represents.
“Any attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response,” Trump said in writing on April 12, 2019.
While Trump’s (and Netanyahu’s) divisive language is nothing new, Afek and Ney were entrusted with the difficult task of using legal language to explain their countries’ aversion for international law.
Before the Herzliya Conference, Afek addressed the Israel Bar Association convention in Eilat on May 26. Here, too, he made some outlandish claims as he absolved, in advance, Israeli soldiers who kill Palestinians.
“A soldier who is in a life-threatening situation and acts to defend himself (or) others (he) is responsible for, is receiving and will continue receiving full back-up from the Israeli army,” he said.
The above assertion appears far more sinister once we remember Afek’s views on what constitutes a “life-threatening situation”, as he had articulated in Herzliya a few days later.
“Thousands of Gaza’s residents (try) to breach the border fence,” he said, concerning the non-violent March of Return at the fence separating besieged Gaza from Israel.
The Gaza protesters “are led by a terrorist organization that deliberately uses civilians to carry out attacks,” Afek said.
Afek sees unarmed protests in Gaza as a form of terrorism, thus concurring with an earlier statement made by then-Israeli Defense Minister, Avigdor Lieberman, on April 8, 2018, when he declared that “there are no innocents in Gaza.”
Israel’s shoot-to-kill policy, however, is not confined to the Gaza Strip but is also implemented with the same degree of violent enthusiasm in the West Bank.
‘No attacker, male or female, should make it out of any attack alive,’ Lieberman said in 2015. His orders were followed implicitly, as hundreds of Palestinians were killed in the West Bank and Jerusalem for allegedly trying to attack Israeli occupation soldiers or armed illegal Jewish settlers.
Unlike democratic political systems everywhere, in Israel, the occupation soldier becomes the interpreter and enforcer of the law.
Putting this policy into practice in Gaza is even more horrendous as Israeli snipers are often killing unarmed protesters from long distances. Even journalists and medics have not been spared the same tragic fate as the hundreds of civilians who were killed since the start of the protests in March 2018.
Last February, the United Nations Independent Commission of Inquiry on Gaza’s protests concludedthat “it has reasonable grounds to believe that during the Great March of Return, Israeli soldiers committed violations of international human rights and humanitarian law. Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel.”
In his attack on the ICC at the Herzliya Conference, Afek contended that “Israel is a law-abiding country, with an independent and strong judicial system, and there is no reason for its actions to be scrutinized by the ICC.”
The Israeli General goes on to reprimand the ICC by urging it to focus on “dealing with the main issues for which it was founded.”
Has Afek even read the Rome Statute? The first Article states that the ICC has the “power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute.”
Article 5 elaborates the nature of these serious crimes, which include: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”
Israel has been accused of at least two of these crimes – war crimes and crimes against humanity – repeatedly, including in the February report by the United Nations Independent Commission of Inquiry.
Afek may argue that none of this is relevant to Israel, for the latter is not “a party to the Rome Statute,” therefore, does not fall within ICC’s legal jurisdiction.
Article 12 of the Rome Statute allows for ICC’s jurisdiction in two cases; first, if the State in which the alleged crime has occurred is itself a party of the Statute and, second, if the State where the crime has occurred agrees to submit itself to the jurisdiction of the court.
While it is true that Israel is not a signatory of the Rome Statute, Palestine has, since 2015, agreed to submit itself to the ICC’s jurisdiction.
Moreover, in April 2015, the State of Palestine formally became a member of the ICC, thus giving the court jurisdiction to investigate crimes committed in the Occupied Territories since June 13, 2014. These crimes include human rights violations carried out during the Israeli war on Gaza in July-August of the same year.
Afek’s skewed understanding of international law went unchallenged at the Herzliya Conference, as equally misguided interpreters of international law flanked him.
However, nothing proclaimed by Israel’s top military prosecutor or his government will alter the facts. Israeli war crimes must not go unpunished; Israel’s judicial system is untrustworthy, and the ICC has the legal right and moral duty to carry out the will of the international community and hold to account those responsible for war crimes anywhere, including Israel.
– Ramzy Baroud is a journalist, author and editor of Palestine Chronicle. His last book is ‘The Last Earth: A Palestinian Story’ (Pluto Press, London). Baroud has a Ph.D. in Palestine Studies from the University of Exeter and was a Non-Resident Scholar at Orfalea Center for Global and International Studies, University of California Santa Barbara. His website is www.ramzybaroud.net
International Criminal Court (ICC)
Focus: Alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014
Phase 2: Subject-matter jurisdiction
Jurisdiction – General status
On 1 January 2015, the Government of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force on 1 April 2015.
Procedural history and focus of the preliminary examination
Upon receipt of a referral or a valid declaration made pursuant to article 12(3) of the Rome Statute, the Prosecutor, in accordance with Regulation 25(1)(c) of the Regulations of the Office of the Prosecutor, and as a matter of policy and practice, opens a preliminary examination of the situation at hand. Accordingly, on 16 January 2015, the Prosecutor announced the opening of a preliminary examination into the situation in Palestine in order to establish whether the Rome Statute criteria for opening an investigation are met. Specifically, under article 53(1) of the Rome Statute, the Prosecutor shall consider issues of jurisdiction, admissibility and the interests of justice in making this determination.
For further information, see the OTP Policy Paper on Preliminary Examinations (2013).
On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, the Government of Palestine (''Palestine"), a State Party to the Rome Statute, referred to the Prosecutor the situation in Palestine since 13 June 2014, with no end date.
Such a referral does not automatically lead to the opening of an investigation; the ICC Prosecutor still needs to determine whether the situation referred meets the legal criteria established by the Rome Statute to warrant an investigation.
For more information on the referral and to read the Prosecutor's statement please click here.
INFORMATION AND OUTREACH FOR AFFECTED COMMUNITIES OF THE SITUATION IN THE STATE OF PALESTINE
The Situation in Palestine
On 1 January 2015, the State of Palestine ("Palestine") lodged a declaration under article 12(3) of the Rome Statute of the International Criminal Court ("Rome Statute"), accepting the jurisdiction of the International Criminal Court ("ICC" or "Court") over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014".
On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for the State of Palestine on 1 April 2015.
On 16 January 2015, the Office of the Prosecutor ("OTP" or "Office") of the ICC opened on its own initiative a preliminary examination into the situation in Palestine, which is currently ongoing. Additional information in this regard can be found in the Report on Preliminary Examination Activities published by the OTP in December 2017, as well as further below on this page, including in particular relevant documents and filings in the situation.
On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, the State of Palestine referred the situation in Palestine for investigation to the ICC and specifically requested the Prosecutor "to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court's jurisdiction, committed in all parts of the territory of the State of Palestine". For more information on the referral and the Prosecutor's role please click here.
The Preliminary Examination
A preliminary examination is not an investigation and does not automatically bring to the opening of an investigation, but it is a process conducted by the Prosecutor that examines the information available and submitted to her by any individual, group or State in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.
Specifically, according to article 53(1) of the Rome Statute, the Prosecutor must consider issues of jurisdiction, admissibility and the interest of justice in making her determination. Importantly, no timeline is imposed by the Rome Statute with regard to this process, which means that the Prosecutor has no fixed deadline, even though her activity remains under the Pre-Trial Chambers' scrutiny, to bring the preliminary examination to an end with the opening of an investigation.
Nonetheless, the Prosecutor established a 4-stages phased procedure to be followed during preliminary examinations, every step of such procedure corresponding to one of the issues that the Prosecutor must consider to opt for an investigation. For detailed information, please refer to OTP's Policy Paper on Preliminary Examinations here.
In relation to the alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014, the preliminary examination carried out by the Prosecutor reached phase 2. This means that the Prosecutor is currently reviewing all available information to determine ICC's subject-matter jurisdiction in order to know "whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court" through a "thorough factual and legal assessment of the crimes allegedly committed in the situation at hand with a view to identifying the potential cases falling within the jurisdiction of the Court".
Pre-Trial Chamber I of the ICC ordered the Registry to establish a system of public information and outreach activities for the benefit of affected communities of the situation in Palestine.
In this regard, the Chamber emphasized that, "for the Court to be able to properly fulfil its mandate, it is imperative that its role and activities are properly understood and accessible". The outreach and public information activities were thus ordered to "foster support, public understanding and confidence in the work of the Court" and, and they allow the Court to "clarify, where necessary, any misconceptions" (see paragraph 7 of the Decision).
The Chamber clarified that these public information and outreach activities were preliminary steps and that, in case the Prosecutor decides to open an investigation, the Judges will give further instructions to the Registry for the latter to increase its outreach activities (see paragraph 12 of the Decision).
Hence, the Judges ordered that accurate information about the Court, including its mandate and activities, be provided to affected communities of the situation in Palestine. The Chamber's Decision does not mean that an investigation will necessarily be opened or that potential victims should begin submitting application forms for participation in judicial proceedings and/or reparations. Indeed, the possibility to be officially recognized as a victim according to the ICC legal texts' criteria will be available only after the opening of an investigation.
Affected Communities' Communication with the Court
Any individual, group or State can send information to the Office of the Prosecutor regarding any alleged crimes falling under the jurisdiction of the Court. Persons with such information, including affected communities of the situation, can communicate to the Office of the Prosecutor any relevant information for the purposes of an eventual investigation or prosecution at: email@example.com, at any time.
When and if the Prosecutor takes the decision to open an investigation, the Chamber will provide further instructions in relation to assisting affected communities of the situation regarding their potential participation in proceedings in conformity with the Rome Statute. Indeed, only after the initiation of an investigation and according to the Chamber's instructions may people belonging to affected communities file an application to be recognized as victims for the purposes of participation in the proceedings. At such stage, if potential victims have any questions related to their rights before the ICC, they can contact the Victims Participation and Reparations Section ("VPRS") - the section within the ICC Registry responsible for assisting victims in the process of applying for participation in judicial proceedings, and reparations in case of a conviction, at VPRS.firstname.lastname@example.org.
Please note that the security of victims is crucial. It is important to take preventive measures such as avoiding mentioning their involvement with the ICC to others/publicly. It is also important to avoid anything that could expose victims and put them or other people at risk, e.g. talking to the media, posting on social media, etc. about their contacts with the ICC.
GENERAL INFORMATION ON THE ICC
The ICC is the first permanent international criminal court which envisages an active role for victims, once judicially recognized as such after the opening of an investigation by the Prosecutor, in terms of their rights to participate in judicial proceedings and to receive reparations, as appropriate, in case of a conviction.
The Court's Structure
The Court is composed of four organs: (i) the Presidency; (ii) Chambers (Appeals Division, Trial Division, Pre-Trial Division); (iii) the Office of the Prosecutor; and (iv) the Registry. The Office of the Prosecutor acts independently as a separate organ. The Registry is composed of many sections, including the Victims Participation and Reparation Section, the Office of Public Counsel for victims and the Victims and Witnesses Unit.
The Court's Jurisdiction
The general mission of the ICC is to investigate and, where warranted, prosecute individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. The Court is participating in a global fight to end impunity, and through international criminal justice, the ICC aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.
The ICC does not prosecute States, Governments or political parties. It can only investigate and prosecute natural persons of 18 years of age or above. Its mandate is to investigate and, where warranted, prosecute individuals for their alleged individual criminal responsibility for mass crimes which fall under the ICC jurisdiction.
The Principle of Complementarity
The principle of complementarity is one of the main pillars for the Court's operation. If a State which has jurisdiction over the situation/case investigates, prosecutes and tries the same person for substantially the same conduct, then the ICC shall defer to the domestic judicial authorities, provided that the State is not unwilling and/or unable to genuinely carry out the proceedings.
The Court does not have police or executive forces who implement the Court's decisions and orders (such as a warrant of arrest). The ICC is dependent on the States Parties to cooperate fully with the Court. The Court may also invite any State not party to the Rome Statute to provide assistance to the Court.
For further general information on the structure and functioning of the Court, as well as on the crimes within the jurisdiction of the ICC please click here.
For more victim-related information please click here.
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email@example.com & firstname.lastname@example.org