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Between
31 May and 11 June 2009, the first Review Conference of the Rome Statute is
being held in Kampala, Uganda. This historic conference – which will be
attended by all States Parties to the International Criminal Court (ICC) –
represents the first opportunity for reviewing the ICC Statute and analysing
the impact of the Court over its first 8 years of activity.

 

The
undersigned Palestinian and Israeli human rights organizations believe it is
essential that all States present in Uganda be guided by the philosophy and
original aims underlying the establishment of the ICC, namely that “the most
serious crimes of concern to the international community as a whole must not go
unpunished” and the commitment “to put an end to impunity for the perpetrators
of these crimes”.

On
this occasion, we strongly call on the international community to take all
possible action to ensure that the rule of international law extends to all
regions of the world.

The
principles that motivated the codification of the ICC Statute in 1998 and the
establishment of the Court in 2002 remain just as relevant and pertinent today.

The
reality of life in the occupied Palestinian territory (oPt) and Israel is
living proof of the consequences arising when international law is
systematically violated, and when those who violate it are allowed to do so
with impunity.

Throughout
the course of the occupation, Israel has consistently violated fundamental
principles of international law. Documented crimes include: torture, grave
breaches of the Geneva Conventions and other war crimes, and crimes against
humanity. The international legal order
makes clear that there can be no impunity for these international crimes which
give rise to individual criminal responsibility; those suspected of their
commission must be investigated and, if appropriate, prosecuted and punished in
any State.

However,
to-date, no Israeli suspected of having committed international crimes has ever
been investigated and prosecuted in accordance with the demands of
international law. The two principal characteristics of Israel’s occupation
have been systematic violations fundamental human rights, and total impunity
for these illegal acts.

As
a result of, inter alia, the ongoing occupation, Palestinian courts are unable
to exercise jurisdiction over Israelis.

The
State of Israel, despite pressing legal obligations, has conducted only very
limited investigations – whose inadequacy has been documented by numerous
national and international human rights organizations, while prosecutions – particularly
at the command level – have not been forthcoming. In this respect, Israel is in
violation of its international obligations, and denies its victims’ the
legitimate right to an effective judicial remedy.

In
the language of the ICC Statute, Israel has proved itself unwilling genuinely
to carry out investigations and prosecutions.

One
and a half years have now passed since Israel’s offensive on the Gaza Strip,
and despite well-documented evidence indicating the widespread commission of
war crimes, no serious investigations have been conducted.

As
a result of this reality recourse must be had to mechanisms of international
justice.

This
conclusion was reiterated in the Report of the UN Fact Finding Mission on the
Gaza Conflict which found that the “prolonged situation of impunity has created
a justice crisis in the Occupied Palestinian Territory that warrants action.”
Consequently, in the absence of genuine investigations at the national level,
the Fact Finding Mission recommended that the UN Security Council, “acting
under Chapter VII of the Charter of the United Nations, refer the situation in
Gaza to the Prosecutor of the International Criminal Court pursuant to Article
13(b) of the Rome Statute.”

In
the interest of international justice, which is a requisite for the maintenance
of peace and security, it is imperative that the Security Council takes action
and refer the situation to the ICC. The triggering of the proceedings by the UN
Security Council under Article 13(b) of the Statute enables the Court to have
jurisdiction on the alleged crimes regardless of the nationality or the
territoriality links.

Alternatively,
a State can refer the situation to the Court, or the Prosecutor can start an
investigation proprio motu, on the basis of the information received by the
victims. In the latter case the opening of an investigation needs to be
formally authorised by the Pre-Trial Chamber.

After
the Israeli military offensive in Gaza of December 2008-January 2009 hundreds
of Palestinian victims – hundreds of innocent civilians who lost their
relatives, their houses, their lands – have submitted their cases, along with a
number of reports compiled by national and international organisations, to the
Office of the Prosecutor of the ICC with the hope that the Court can finally
bring some justice to the oPt.

The
victims and the above mentioned organisations greeted with satisfaction the
announcement made by the Office of the Prosecutor more than one year ago,
regarding the opening of a preliminary examination of the situation in
Palestine.

The
undersigned organisations maintain that, although Israel is not a State party
to the Rome Statute, the Court can establish its jurisdiction over the crimes
committed in the Occupied Palestinian Territory following the Palestinian
National Authority’s declaration of recognition of the ICC, according with
Article 12(3) of the ICC Statute, submitted in January 2009.

Authoritative
legal documents and expert opinions have been submitted to the Office of the
Prosecutor arguing that occupied Palestine can legitimately be considered a
State for the purposes of establishing the jurisdiction of the Court in
accordance with Article 12(3) of the Rome Statute. Relevant to this conclusion
are, inter alia: the recognition of Palestine as a State by many members of the
international community, satisfaction of the requirements specified in Article
1 of the Montevideo Convention on Rights and Duties of States, and the
recognition by UN General Assembly Resolution A/RES/64/10, 2 November 2009, of
the duty upon the Palestinian authorities to undertake investigations and
prosecutions of Grave Breaches of the Geneva Conventions, a duty which is
incumbent only upon states.

Furthermore,
recognition of Palestine as a State for the purposes of the jurisdiction of the
Court is consistent with the object and goals of the ICC Statute, as expressed
in its Preamble.

The
Prosecutor should submit the request to open an investigation to the Pre-Trial
Chamber as soon as possible. As noted by the UN Fact Finding Mission on the
Gaza Conflict “accountability for victims and the interests of peace and
justice in the region require that the legal determination should be made by
the Prosecutor as expeditiously as possible.”

The
undersigned remind all States and concerned parties that the rule of law is of
fundamental importance with respect to the protection of civilian populations.
Civilians throughout the world have placed their faith in the international
legal system, rightly believing that the International Criminal Court is a
crucial step towards upholding victims’ rights, and fighting impunity for the
commission of the most serious crimes that affect the international community
as a whole. As recognised by the UN Security Council, the commission of such
crimes constitute a threat to international peace and security.

History
has shown that as long as Israel is allowed to act with impunity, it will
continue to violate international law. It is innocent Palestinian civilians who
continue to suffer the horrific consequences.