On 21 January 2009, just after the end of the Israeli military operation codenamed Operation Cast Lead in Gaza, which resulted in the UN Fact Finding Mission alleging that war crimes and crimes against humanity had been committed, the Palestinian Authority issued a declaration recognising the ad hoc jurisdiction of the International Criminal Court in accordance with Article 12(3) of the 1998 Rome Statute. This provision allows a State not party to the Statute to accept the jurisdiction of the Court for an ad hoc situation over war crimes, crimes against humanity, and genocide alleged to have been committed on its territory or by one of its nationals. Such acceptance of the Court's jurisdiction was previously made by both Uganda and Côte d’Ivoire. Unlike adherence to the Rome Statute itself, which accords only jurisdiction over crimes committed after the entry into force of the Statute for the relevant State, a declaration under Article 12(3) attributes retroactive jurisdiction since July 2002.
In its declaration, the Palestinian Authority recognised the competence of the ICC over international crimes committed since 1 July 2002, including thereby Operation Cast Lead. The legal question that the ICC prosecutor had to determine following the declaration was whether Palestine has the status of ‘a State which is not a Party to this Statute’ for the purposes of submitting a declaration under Article 12(3) of the Rome Statute. That opened the floor to a major academic debate in which different legal opinions by jurists such as Alain Pellet, John Quigley, and Malcolm Shaw were published (for an online debate and summary of the different opinions click here).
Although the UN Fact Finding Mission in its recommendations made specific reference to the Palestinian Authority declaration, noting its report that “accountability for victims and the interests of peace and justice in the region require that the Prosecutor should make the required legal determination as expeditiously as possible” (para. 1970), it took the Prosecutor three years to reach a decision on 3 April 2012.
In fact, after three years of deliberations, and just prior to the end of his mandate in June 2012, the Prosecutor concluded that he was not competent to make such a determination deferring it instead to the discretion of political bodies, specifically the UN Secretary-General and the ICC’s Assembly of States Parties. This decision was based on a technical argument, making an analogy with the competence of the UN Secretary-General and UN General Assembly to determine whether an applicant wishing to join the Rome Statute is a State:
In accordance with article 125, the Rome Statute is open to accession by 'all States', and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a 'State', it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter.
Thus, the Prosecutor concluded that the competence for determining the term 'State' within the meaning of Article 12 rests, in the first instance, with the UN Secretary-General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with Article 112(2)(g) of the Statute.
A reminder of the Israeli investigations after Operation Cast Lead
If established, ICC jurisdiction could be triggered in cases where local judicial fora are unwilling or unable to prosecute international crimes.
Israel produced five detailed reports
on its national follow-up investigations of Operation Cast Lead, in which its international lawyers sought to refute claims about its responsibility for violations of international law, reporting that around 400 command and 52 criminal investigations were opened.1
However, three years after the facts occurred, only three prosecutions had been initiated – all against low-ranking soldiers and on the basis of violations of army orders. No investigation examined the legality of the policies of the Israeli government during the operation, or the responsibility of policy-makers. Moreover, all of these have been conducted within the military system, by military personnel, whoa re involved in issuing and approving orders in 'real time' combat.
In its follow-up to the Goldstone report, a Committee of Independent Experts was established by the UN Human Rights Council to assess the compliance of the investigations conducted by the parties with international standards.2
The Committee’s second report, released on 18 March 2011, held, inter alia, that the investigations conducted by the parties fail to satisfy international law standards as they do not include investigation of high-level officials and do not cover all allegations.3
According to the Palestinian Centre for Human Rights (PCHR), as of 18 January 2012, of 490 criminal complaints submitted, PCHR had received responses with respect to only 21 cases.4
The status of the ongoing investigations or the evidence that led to the discontinuation of certain inquiries remains, in most cases, unknown and inaccessible. A recent example was the publication in the press on 2 May 2012
of the fact that no action would be taken against soldiers responsible for shelling that killed 21 members of the Samouni family. It was argued that the investigation had ‘comprehensively refuted’ claims that the Israeli army had intentionally targeted civilians or had acted in a reckless manner.
The Turkel Commission
The Public Commission to Examine the Maritime Incident of 31 May 2010, known as the Turkel Commission, made up of four Israeli members and two international observers, was set up by the Israeli government in June 2011, in the aftermath of the Flotilla incident, to examine, inter alia, 'whether the investigation and inquiry mechanism that is practiced in Israel in general ... is consistent with the duties of the State of Israel pursuant to the rules of international law.'5
During the month of April 2011, the Israeli panel heard testimony from senior military and political figures – including the Military Advocate General, the Attorney General, the head of the General Security Services and the head of the Military Police – as well as representatives of leading Israeli non-governmental organisations. Of special interest are the testimonies of the professors of international law. Professors Shany and Benvenisti both testified that the reason for the absence of proper investigations and prosecutions is not based solely on the practice of the Israeli authorities, but most notably, on the structural deficiencies of Israel’s whole investigative system, which centralises all investigation and prosecution powers in the hands of the Military Advocate General – a body that is neither independent nor impartial.
The report of the commission is due to be published in the coming weeks. An article published on 6 May 2012 in Haaretz, indicated that:
The Turkel Committee is expected to recommend significantly augmenting civilian review of IDF probes with regard to Palestinian complaints. The committee discussed the establishment of a department of international law in the Justice Ministry that would answer to the attorney general and supervise both the Military Advocate General and the Military Police. The Turkel Committee is to recommend that the attorney general be granted the power to change decisions by the Military Advocate General with regard to complaints by Palestinians. One chapter of the report, compiled with the assistance of international legal experts, will summarize the way international law deals with investigations of war crimes in order to determine in principle when criminal investigations should be launched in such cases.
Chantal Meloni and Gianni Tognoni (eds), Is There A Court for Gaza?- A Test Bench for International Justice (Asser/Springer, The Hague, 2012).
FIDH, Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes, September 2011.