POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
On September 2, 2014, the ICC Prosecutor, Fatou Bensouda, issued a public statement in which she rejected as “baseless” criticisms in “[r]ecent media reports and commentaries,” which she said “have erroneously suggested that the International Criminal Court (ICC) has persistently avoided opening an investigation into alleged war crimes in Gaza due to political pressure.”
The Prosecutor stated that these criticisms were without merit because of the Rome Statute’s jurisdictional requirements. The Prosecutor did not (and could not, without investigation) argue that any alleged crimes committed by any participant in the conflict failed to meet the Statute’s subject matter requirements for genocide, war crimes, or crimes against humanity. The problem, rather, was the Statute’s other jurisdictional requirements that authorize the ICC to open an investigation only with respect to crimes alleged to have occurred on the territory of a State or by nationals of a State that has ratified the Rome Statute or has accepted ICC jurisdiction by an ad hoc declaration pursuant to Article 12(3) of the Statute. At this time, neither Israel nor the Palestinian Authority is a State Party to the Rome Statute, nor has either as yet filed an Article 12(3) declaration. (Palestine did file such a declaration in 2009, but it was found invalid for lack of standing.)
The Prosecutor noted that her Office after examination has concluded that because of UN General Assembly Res. 67/19 issued on November 29, 2012 upgrading Palestine’s status to a “non-member observer State,” Palestine could now accede to the Rome Statute or lodge an Article 12(3) declaration conferring jurisdiction to the ICC over the situation in Gaza. But it has not yet done so.
The Prosecutor in her statement referred to an additional mechanism through which the ICC could obtain authorization to investigate the situation in Gaza. Pursuant to Article 13(b) of the Rome Statute, the UN Security Council can act under its Chapter VII powers to authorize an ICC investigation, even if the alleged crimes were not committed on the territory of a State Party or by a national of a State Party. The Security Council has not taken such action as yet with respect to Gaza (nor has it done so with respect to the violence in Syria).
Amnesty International, a non-governmental organization whose mission is to protect human rights internationally, has called for the UN Security Council, the Palestinian Authority, and Israel to provide the ICC with jurisdiction to investigate and prosecute any persons responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.
The Prosecutor concluded her September 2 statement by saying,
It is my firm belief that recourse to justice should never be compromised by political expediency. The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities. This, we will never allow.
The ICC has been the target of many political criticisms and challenges, starting from its foundational conferences in the 1990s, and these challenges will, no doubt, continue for years to come. The ICC Prosecutor is to be commended for being proactive in addressing these challenges in an effort to support the credibility of the Court.