The opening of an ICC preliminary examination into Palestine continues to make headlines around the world. While widely welcomed by civil society and others as a step towards accountability for grave crimes, the announcement has prompted a misguided backlash against the Court by the Israeli government and its supporters in the United States, Canada and elsewhere. We offer some recommendations for all involved.
Civil society stands for justice
Palestinian and international civil society organizations have welcomed Palestine’s acceptance of ICC jurisdiction and this new preliminary examination, in hopes that a measure of justice and accountability will be brought to one of the world’s longstanding conflicts.
Civil society organizations such as Al Haq, Al-Dameer, and the Palestinian Center for Human Rights have made statements welcoming the decision and pledging their cooperation to the Court during its examination.
Shawan Jabarin, general director of Al-Haq:
“President Mahmoud Abbas’s decision to finally accede to the Rome Statute is groundbreaking; it makes it possible for the ICC to prosecute and punish those most responsible for committing serious crimes. As such, the Court can ultimately erase the immunity that Israel has effectively afforded to its own soldiers, officials and politicians. There is no doubt that Palestine’s accession will fundamentally change the way that Israel carries out its occupation and treats Palestinians.”
Karim Lahidji, International Federation for Human Rights (FIDH) president:
“By acceding to the ICC Statute, which covers war crimes and crimes against humanity, as well as numerous other international treaties, Palestine demonstrates unequivocal commitment to become a viable state that respects the rule of law and human rights. FIDH supports this courageous decision towards ending decades of impunity and restoring the rule of law, pre-requisites to the reestablisment of the peace in the region.”
William R. Pace, Coalition convenor:
“For years Coalition members have advocated that enforcing the Geneva Conventions and humanitarian law in addressing the massive violations in the Israel-Palestine conflict would not only help end impunity, open the avenues of justice, but assist the forces for a peaceful settlement of the six-decade-old conflict.”
Israeli Prime Minister Benjamin Netanyahu publicly criticized the opening of the preliminary examination, calling it the “height of hypocrisy and the opposite of justice.” Foreign Minister Avigdor Lieberman added that Israel would not cooperate with the Court and would seek to have it “dismantled.” Israel further called on ICC states parties such as Canada, Australia, and Germany to withhold funding to the Court.
Encouragingly, a Reuters report indicates that the governments of Germany, France, Britain, Italy and Canada would not heed Israel’s call to defund the Court. Last week, Germany’s top human rights official dismissed Israel’s appeal and urged it to cooperate with the Court. Meanwhile, German, Dutch and Greek MEPs, members of Parliamentarians for Global Action, issued a statement rejecting Israel’s call. Also in response to the Israeli comments, the French Coalition for the ICC wrote to the French foreign minister calling on the government to reaffirm its support for the ICC and the universality of the Rome Statute.
In a column in the Globe and Mail, Paul Heinbecker, Canada’s former ambassador to the UN, criticized the Canadian government for its opposition to Palestine’s accession to the ICC, calling it a betrayal of the country’s principles and support for international law.
These latest developments come on the heels of initial retaliatory measures taken when Palestine acceded to the ICC Rome Statute in early January.
In response to the accession, Israel froze over $127 million of vital tax revenue to the Palestinian Authority. The United States meanwhile denounced the Palestinian move, saying it would be reviewing $400M in foreign aid to Palestine. US Senator Rand Paul introduced legislation to withhold that aid unless Palestine withdraws from the Court, and Senator Lindsey Graham called the move a “bastardization of the role of the ICC.”
These attempts to undermine the Court’s ability to bring justice to victims of war crimes, crimes against humanity and genocide all over the world. All states have the right protect their citizens from such crimes by joining the Rome Statute.
What will the Palestine preliminary examination entail?
As of yet, there is no ICC investigation in Palestine. A preliminary examination means that ICC prosecutor Fatou Bensouda is conducting an inquiry to determine if there a reasonable basis to conduct a full and formal investigation.
The prosecutor opened the preliminary examination as “a matter of practice and policy” following Palestine’s declaration under article 12.3 of the Rome Statute granting the Court ad-hoc jurisdiction. Under this declaration, the prosecutor now has the mandate to look at whether alleged crimes by all parties “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014 amount to war crimes, crimes against humanity or genocide.” Palestine’s accession to the Rome Statute (and thus the ICC’s jurisdiction) will not take effect until 1 April 2015.
So some of the questions that the prosecutor will seek to answer to inform her decision include:
- Does the Court have jurisdiction here?
- Have Rome Statute crimes (war crimes, crimes against humanity and/or genocide) been committed?
- Are there genuine investigations occurring at the national level?
Preliminary examinations are also designed to encourage national authorities to investigate allegations of grave crimes, and if necessary, prosecute those responsible. The ICC will only step in if the state in question is genuinely unwilling or unable to do so.
Much work ahead to achieve accountability
In a decades-long dispute marked by impunity, the wheels of justice are now turning. But much work remains to be done. Some key recommendations:
- All authorities with information into alleged crimes falling within the situation in Palestine should provide it to the Court in order for the prosecutor to undertake a detailed and informed preliminary assessment.
- Palestine must incorporate the Rome Statute into its domestic legislation, enabling it to fully cooperate with the ICC and investigate allegations of grave crimes and, if necessary, prosecute those responsible.
- Israel should end its attempts to undermine the Court’s ability to function, take steps towards accepting ICC jurisdiction, and investigate allegations of the gravest crimes as set out in the Rome Statute and, if necessary, prosecute those responsible.
- All states parties should continue to live up to their obligations under the Rome Statute to fully support the ICC – politically and financially – in its efforts to promote global accountability, and oppose attempts to politically interfere in the work of the Court.
- The ICC should immediately begin communicating necessary information to all stakeholders and the public.
Have your say – Has the international community done enough to support the justice process?