[Reader-list] time for icc to act on palestine

[Asit Das]

Time for the ICC to Act on Palestine

JUSTICE <http://www.transcend.org/tms/category/justice/>, 21 October 2013

*by Raji Sourani & Shawan Jabarin – Al Jazeera*

Over three years ago, on January 22, 2009 – in the immediate aftermath
of Operation
Cast Lead<http://www.aljazeera.com/news/middleeast/2009/01/200917205418665491.html>
–
the government of Palestine lodged a
declaration<http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf>
with
the Registrar of the International Criminal Court, accepting the Court’s
jurisdiction “for the purpose of identifying, prosecuting and judging the
authors and accomplices of acts committed on the territory of Palestine
since 1 July 2002″. This declaration gives the ICC jurisdiction to
investigate all suspected crimes – regardless of the nationality of the
perpetrator – committed on Palestinian territory.

The reality on the ground demonstrates the clear and urgent need for
judicial intervention.

Since the beginning of the Oslo process over 20 years ago, the rights of
the Palestinian people have been continuously sacrificed in the name of
political progress. The peace process’ forfeit of the rule of law and human
rights was intended to secure peace and security. The result has been
neither peace nor security, but rather a consistent – and in recent years,
increasing – deterioration of the quality of life. In the West Bank,
including East Jerusalem, the expansion of
settlements<http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-63_en.pdf>continues
relentlessly, while the illegal Annexation
Wall<http://www.icj-cij.org/docket/files/131/1671.pdf> creates
a situation that is completely at odds with both international law and the
stated goals of the peace process. In the Gaza Strip we are focused on
securing access to medicines, water, adequate food, and, on the right to
movement, education and work.

Life in Palestine is subject to the rule of the jungle: generals and
politicians know that they can violate the law with impunity, fuelling a
continuous cycle of violations and suffering. The result has been an
increase in war
crimes<http://www.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf>
committed
against innocent civilians. Throughout Palestine we are struggling for the
right to live, and the right to live in dignity.

*Pressure not to press charges*

Against this backdrop, the possibility of accountability at the ICC – and
let us be clear that this represents the possibility that, for the first
time, the law will be applied equally and impartially *to all sides* – has
been subject to political manipulation. Europe and the US in particular,
have consistently tried to block any possible ICC intervention. In the
context of Palestine’s bid for UN membership, the
Guardian<http://www.guardian.co.uk/world/2012/nov/27/uk-ready-to-back-palestine-statehood>reported
that the UK was basing its support for the resolution on the State of
Palestine refraining “from applying for membership of the international
criminal court or the international court of justice, which could both be
used to pursue war crimes charges or other legal claims against Israel’”.
President Mahmoud Abbas
reported<http://www.time.com/time/world/article/0,8599,2092492,00.html#ixzz2XLkGRfvY>similar
pressures form the US: “I heard from the Americans …. They said, ‘If you
will have your state, you will go to the ICC. We don’t want you to go the
ICC.’”

On April 3, 2012, after a delay of over three years, Luis Moreno-Ocampo,
then the ICC Prosecutor, issued a *much
criticised<http://humanrightsdoctorate.blogspot.co.uk/2012/04/prosecutor-and-palestine-deference-to.html>
 two page decision<http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf>
* refusing to accept jurisdiction over Palestine, on the basis that the
Office of the Prosecutor was not competent to decide whether Palestine was
a state and thus capable of accepting the Court’s jurisdiction. It was
claimed that this was a decision for the UN, although the statement ignored
the fact that in October 2011 – prior to the Prosecutor’s decision –
Palestine had been accepted as a Member State of UNESCO. On November 29,
2012, the UN General Assembly recognised Palestine as a “non-Member
Observer State” leaving no possible doubt as to whether Palestine can be
regarded as a State vis-à-vis the ICC Statute.

It appears that the ICC Office of the Prosecutor – despite its ability to
open an investigation based on Palestine’s still valid 2009 declaration –
is waiting for Palestine to ratify the Statute of the International
Criminal Court and become a full member.

Al Haq and the Palestinian Centre for Human Rights are indeed pushing for
Palestine to ratify the ICC Statute and other international treaties.
However, the ICC’s current position is unacceptable.

*Unjust justice*

It goes against the very object and purpose of the ICC to allow states to
escape accountability because they changed their mind after triggering the
Court’s jurisdiction, whether by subsequently refusing to ratify the
Statute or “pulling back” the initial referral. Justice cannot be held to
ransom in this way.

It is even more unacceptable to leave millions of civilians outside the
scope of international justice because of political pressures exerted on
the government, especially if it is in an extremely weak position as a
government under occupation, and cannot take bold positions without the
support of the international community.

Decisions such as these must be taken by a judicial organ of the Court,
delegating such an important admissibility decision to political bodies
undermines the independence of the Court, and Article 19(3) of the Rome
Statute should be
utilised<http://opiniojuris.org/2012/09/25/palestine-and-the-icc-some-notes-on-why-it-is-not-a-closed-chapter/>in
this regard.

The reality of the situation in Israel and Palestine demands urgent
intervention. The prosecutor’s April 2012 “decision not to decide” turned
its back on both the gravity of the situation, and the International
Criminal Court’s mandate “to put an end to impunity for the
perpetrators<http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>”
of international crimes.

We urge the prosecutor to visit Palestine, to meet with the victims, and to
experience the reality on the ground. Now more than ever, the need for
justice, and not political parlour games, is apparent. Justice is not a
commodity that can be traded in the name of political progress. The
International Criminal Court must not become complicit in the on-going
failures of the peace before justice process. It should live up to its
mandate – and the expectation of victims worldwide – and take concrete
steps towards ending impunity in Israel and Palestine.

______________________

*Raji Sourani is Director of the Palestinian Centre for Human Rights, based
in Gaza.*

*Shawan Jabarin is General Director of Al-Haq, an independent Palestinian
non-governmental human rights organisation.*

Go to Original –
aljazeera.com<http://www.aljazeera.com/indepth/opinion/2013/10/time-icc-act-palestine-20131015113944266410.html>