Gaza. 22 June 2009.
Defense of Universal Jurisdiction
Speech Presented to Conference in Madrid on Behalf of PCHR Director, Raji Sourani
Dear friends, comrades, partners in civil society, and national and international human rights organizations, thank you all for coming, and for joining us here today.
Today, the Gaza Strip lies in ruins. Five months after Israel’s criminal offensive, which cost the lives of 1,414 Palestinians – 83% of whom were civilians – and injured 5,300 others, recovery is impossible. The siege of the Gaza Strip, an illegal form of collective punishment imposed on Gaza’s 1.5 million inhabitants, has now been in place for over two continuous years. Individuals are denied their rights to freedom of movement, people and goods cannot enter or leave. Israel has systematically suffocated the economic and social life of the Strip, and created a humanitarian crisis. In Gaza today there is not even the concrete with which to build a tombstone. Five months after the end of the war, the situation in Gaza is exactly the same as it was on 18 January. Only the weather has changed.
It is because of this illegal siege that I cannot be here with you today. However, I hope that through this speech my words can still reach you.
On 29 January 2009 we were happy and proud. The Spanish Audencia Nacional had asserted that it would launch an investigation into the events surrounding the Al-Daraj attack in Gaza in 2002. This war crime killed 14 civilians, wounded approximately 150 others, and completely or partially destroyed 38 apartment buildings. It was a proud day across the globe, for all those who seek to uphold the rule of law, and to pursue accountability. It was especially significant coming so close as it did after the end of Israel’s war on Gaza. The Spanish judiciary had shown their independence and their integrity, continuing the trail of accountability from Pinochet to Ben-Eliezer.
However, we were shocked to see the Spanish Foreign Minister apologizing to Israel, and promising to change the law. Spain and Europe should be proud of the independence and integrity of their judiciaries. This is something that should be promoted, not restrained.
On 19 May we were shocked once more, as the Spanish Parliament passed a resolution requesting that the government limit the scope of Spain’s universal jurisdiction legislation. Today, we are at risk of losing one of the most important bastions in the fight for universal justice.
The consequences could not be more severe. Simply, they are continued suffering, death, pain and misery, as those who commit international crimes will continue to be granted impunity and encouraged to continue committing atrocities. The effects will be felt throughout the world. We are scared, not only as Palestinians but as international citizens. Without the rule of law, and without accountability, how can we uphold our rights? Are we to be consigned to the rule of the jungle, is Guantanamo to become a model for the future? Is international law to be disregarded, and are human rights to be cast aside, fresh victims of international politics?
It is this shock that has provoked these events in Madrid. We are gathered here, from all strands of society, and all walks of life, to speak out for justice. The rule of law must be upheld. If this amendment passes we will lose one more place where war criminals can be held to account; one more place, where impunity can be combated.
This is not an academic or a legal issue. It affects each and every one of us. To this day Israel pursues those responsible for crimes committed during the holocaust. This is right, and just. Yet this same principle must be applied to all. All suffering is equal, justice cannot be selective. The powerful must be held to account along with the weak. Entire peoples cannot be consigned to the rule of the jungle for the sake of political expediency.
The siege of the Gaza Strip which I referred to earlier is pertinently relevant to the discussion here today. The siege and its effects, which have contributed to the complete economic and social suffocation of Gazaand the emergence of a humanitarian crisis, highlight the key importance of universal jurisdiction. For too long now, Israel has been allowed to violate international law with impunity. Until effective pressure is placed on the State of Israel, and on individuals accused of committing war crimes, until they are investigated and prosecuted in accordance with international legal standards, impunity will prevail. In order for the rule of law to be relevant, it must be enforced. As long as impunity persists, individuals and States will continue to violate international law. It is civilians, the protected persons of international humanitarian law (IHL) who continue to suffer the horrific consequences, as they are killed, maimed, and deprived of their basic human dignity. It is for them that we are gathered here today, and that is something we must never lose sight of. We must continue our fight for justice, on behalf of those to whom justice has been denied.
Universal jurisdiction only applies when States with a more traditional jurisdictional connection to the crime, such as the place of commission, or the nationality of the perpetrator, prove genuinely unwilling or unable to investigate and prosecute. In other words, it applies when national systems are unable to conduct an effective trial, or when they are unwilling to do so: when they attempt to shield those accused of international crimes from justice, to grant them impunity, and to effectively condone their acts. In such instances, universal jurisdiction allows foreign courts – acting as agents of the international community – to investigate and prosecute. Universal jurisdiction is established to ensure that justice is done. These crimes cannot go unpunished, victims legitimate rights to judicial remedy must be upheld. In the face of all that they have suffered, this fundamental principle of human rights cannot be neglected. It must be stressed that universal jurisdiction applies only to the most serious crimes. Crimes that include genocide, crimes against humanity, war crimes and torture.
Ideally, the practice of universal jurisdiction would not be necessary. The establishment of the International Criminal Court in 2002 was an important step on the road to universal justice, whereby the protections of international law may extend to all individuals, without discrimination. However, to date, international politics have frustrated the development of the ICC. Due to the lack of universal ratification, there remain areas in the world to which enforceable international law does not extend; areas of the world where individuals continue to suffer war crimes, and torture, and where those who commit them are allowed to act with impunity. This situation cannot be allowed to prevail. Politics cannot be placed above individual’s human rights. International human rights law was established to protect individuals from the abuse of State power. It is inexcusable that today, when the fundamental importance of human rights are evident to all, that States be allowed to use their power to act outside the law. To act with impunity.
It is for this very reason, that universal jurisdiction is so important. In the absence of a universally ratified ICC, universal jurisdiction provides the only mechanism whereby international law can extend to all individuals. Today, in the fight against impunity and the fight for victims’ rights, universal jurisdiction represents the very foundation of our work. It is where we must make our stand. Today in Spain, universal jurisdiction cases are being pursued against the United States, against China, and against Israel, some of the most powerful and influential States in the world. Without universal jurisdiction, how can these States be held to account, how can we ensure that international law applies to all individuals, on the basis of their shared humanity and fundamental equality. The rule of law is essential; it is the basis from which human rights evolve. It is unacceptable that those in powerful countries be granted the benefit of the law’s protections, while those in weaker nations, all too often the victims of the powerful, are consigned to the rule of the jungle.
Universal jurisdiction offers hope to victims throughout the entire world, in many cases, it is their only hope. That is why the events of the next few days are of such profound importance. Spain enjoys a proud place in the fight for justice and equality. In the 1930s, international volunteers rallied behind Spain, fighting for freedom against oppression. In recent years, Spain has come to the forefront of the fight for universal justice, pursuing high profile cases such as Pinochet, Scilingo, and the Guatemal Generals. Yet the proposed amendment to Spain’s universal jurisdiction legislation would see this proud history undone. It would represent a serious setback not only for the international legal order, but for all those throughout the world who have been denied justice, those who have suffered at the hands of oppressive regimes, and those who continue to do so.
It is widely believed, that the Spanish proposal came about as a result of political pressure. The source of this political pressure must be acknowledged. It is exerted by States who have been accused of violating international law, of committing war crimes, crimes against humanity, and torture. The political pressure placed on the Spanish people is being exerted by States who seek to shield war criminals from justice.
This pressure must be fought. Politics can not be allowed to trample over justice. Individuals’ fundamental human rights cannot be casually disregarded in the corridors of power. Today, and over the coming days we must make a stand. We must speak truth to power.
Justice is not something to be discarded at a whim. Human rights, the fundamental principles of humanity, are vital. They must be protected, promoted, and strengthened. Not denied as a result of political pressure from those States who would see human rights discarded in their own self-interest; those States who believe that human rights are for some, and not for all.
Although universal jurisdiction is a universal issue, relevant to all individuals throughout the world, I would like to speak briefly from a Palestinian perspective. For many reasons I have worked as a human rights lawyer and defender. I have seen continuous violations of international law, and their horrific consequences. As I noted earlier, the Gaza Strip lies in ruins, forced to remain exactly as the Israeli’s left it on the 18 January, over five months ago. The annexation of Jerusalem continues unabashed. Despite recent international attention the illegal expansion of settlements in the West Bank continues.
It is evident that in order for the rule of law to be relevant, it must be enforced. For many years now Israel has been allowed to act with impunity. The consequences have been continuing cycles of violence, and increased violations of international law. The recent offensive of the Gaza Strip frames the consequences of this impunity against a harsh reality. This situation cannot be allowed to persist. Those responsible for such crimes must be investigated and prosecuted in accordance with international legal standards; if they are guilty they must be punished, their victims must see justice done. Those who commit war crimes must know that there are consequences to their actions beyond medals, they must know that they will be punished. Otherwise, as has been proven, war crimes will continue to be committed, civilians will continue to suffer the consequences, denied their legitimate rights, their dignity, and the chance of a normal life.
We will continue to devote time and effort in the fight for the rule of law and accountability. This is our life’s mission. We cannot bring the dead back to life, or remove the physical scars of torture, but we can pursue those responsible. We can attempt to ensure that such atrocities do not happen again.
We must combine our forces. Justice is on our side, and that gives us strength. Yet we are a thousand times stronger with your support, with the support of free people. On behalf of all Palestinians, and the residents of the Gaza Strip, I thank you for your efforts to date, and urge you to continue the fight.
In the interests of justice, and on behalf of the victims whose rights we have been mandated to fight for, this amendment cannot pass. I urge you to do all that you can, to lobby, to agitate, and to demonstrate. The fight against impunity cannot be lost.