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The international criminal court can investigate potential crimes in Gaza
8-13-2014
In his opinion piece dated 7 August 2014, Joshua Rozenberg criticised the Bar Human Rights Committee's letter to the ICC prosecutor, which urged her to investigate evidence of serious crimes within the jurisdiction of the Court committed in Gaza, as "naive" and "misleading".
He accuses BHRC of failing to present opposing views to its own position that a 2009 declaration submitted by the Government of Palestine, accepting the jurisdiction of the court, provides the prosecutor with the jurisdictional basis to initiate an investigation. In particular, BHRC is criticised for not highlighting that "one international lawyer disagreed" with our position, arguing that a 2012 decision of the prosecutor "formally rejected" the 2009 declaration.
Neither Rozenberg's opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact "formally reject" the 2009 declaration.
Instead, the 2012 decision asserts that the prosecutor does not have the authority to determine whether Palestine is a "state" for the purposes of submitting a declaration to the ICC, it being "for the relevant bodies at the United Nations or the [ICC] assembly of states parties to make th[at] legal determination."
The 2012 decision underscores that the Prosecutor "could in the future consider allegations of crimes committed in Palestine, should competence organs of the Untied Nations or eventually the assembly of states parties resolve the legal issue relevant to an assessment of article 12".
As BHRC highlights in our letter, insofar as any doubts may have previously existed regarding Palestine's status, those have since been resolved by the United Nations general assembly when it granted Palestine observer-state status. Contrary to Rozenberg's representation of the UN General Assembly decision, the UN did not determine that Palestine was not a State prior to that date. And indeed, as Kevin Heller has himself made clear, "the ICC did not have to wait for the UNGA to upgrade Palestine's status; it could – and should – have recognized Palestine long before now."
In those circumstances, as BHRC and numerous other lawyers have argued , the 2009 declaration provides a jurisdictional basis for the prosecutor to "consider allegations of crimes committed in Palestine", in the absence of Palestinian ratification of the Rome Statute: there is no legal requirement for a further declaration in order for an investigation to be initiated.
Given the text of the 2012 decision, the prosecutor's short announcement on 5 August 2014 imposing yet another procedural obstacle to the investigation of such serious crimes is deeply disappointing. BHRC and the legal community look forward to reading a reasoned legal explanation of her position.
In the meantime, BHRC continues strongly to encourage Palestine's ratification of the Rome Statute as the most straightforward basis for ICC jurisdiction over crimes committed on its territory. The news on this front is cautiously encouraging. However, the political pressure being placed on Palestine – including by the British and American governments – and the threats of serious political consequences if it does ratify or submit another declaration undermine Rozenberg's assertion that this action is "an easy answer". Naivety would be to place faith in the politics and not to advance a distinct urgent legal solution for victims of Gaza.
Kirsty Brimelow QC is chair of the Bar Human Rights Committee, which is the international human rights arm of the Bar of England and Wales as distinct to being part of the Bar Council. It was founded in 1991.
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