In January 2009, in the wake of the 2008-2009 Israeli offensive ‘Operation Cast Lead’, the Palestinian National Authority lodged a declaration accepting the exercise of jurisdiction of the International Criminal Court, pursuant to Article 12(3) of the Rome Statute. In April 2012, the then Prosecutor of the International Criminal Court, Luis Moreno Ocampo, turned down this request, declaring that he was not competent to decide whether Palestine is a State such that it can accept the jurisdiction of the ICC.
This decision by the prosecutor of the ICC had the effect of denying the people of Palestine access to justice at the international level for violations of international humanitarian and human rights law committed against them by Israel. In doing so, the Prosecutor not only overstepped his mandate, by exercising judicial rather than prosecuting power, he also disregarded Article 2 of the Universal Declaration of Human Rights, which states that “[…] no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”
The only judicial recourse available to Palestinians at present is to file a complaint with the Israeli Military Advocate General (a criminal procedure) and the compensation officer of the Israeli Ministry of Defense (a civil, or tort procedure). Previous efforts to seek justice through the Israeli court system have been ineffective, failing to lead to any substantive delivery of justice. We have worked for many years within the Israeli judicial system, trying to achieve justice and accountability for Palestinian victims; this experience has unequivocally proven that the system is incapable of ensuring an effective remedy for Palestinian victims.
This conclusion was confirmed by the UN Committee of Experts following the so-called ‘Operation Cast Lead’ of 2008-2009. The Committee stated: “the official inquiry must be conducted by a truly independent body, given the obvious conflict inherent in the military’s examining its own role in designing and executing ‘Operation Cast Lead’”.
In the absence of an independent body which is empowered to investigate the alleged commission of crimes against the people of Palestine and to hold the perpetrators accountable, Israeli forces continue to act with impunity and disregard numerous principles of international human rights and humanitarian law. It is this culture of impunity which has allowed Israel to carry out yet another offensive against the Gaza Strip in November 2012. During ‘Operation Pillar of Defense’, indiscriminate and disproportionate attacks resulted in the deaths of 100 Palestinian civilians, and the injury of 1261.
Now that Palestine has officially been recognized as a State by the UN General Assembly, we, the undersigned, repeat our call for justice and accountability, and we call upon:
1- The State of Palestine to sign and ratify the Rome Statute without undue delay, and to lodge a declaration with the Court’s Registrar under Article 11 (2) and 12 (3) of the Statute, accepting the exercise of jurisdiction by the Court from the date of entry into force of the Statute, 1 July 2002;
2- The Prosecutor of the International Criminal Court, following the accession of Palestine to the Rome Statute, to initiate an investigation proprio motu into alleged war crimes and crimes against humanity which are committed in Palestine in violation of the Statute, and to request an authorization of the Pre-Trial Chamber to proceed with an investigation, pursuant to article 15 of the Statute;
3- The Prosecutor of the International Criminal Court to reopen the preliminary examination, and to take into account the proper elements in order to finally open an investigation into the situation in Palestine, bringing the issue before the Pre-trial Chamber for a judicial determination of the matter.