Over three years ago, on January 22, 2009 – in the immediate aftermath of Operation Cast Lead – the government of Palestine lodged a declaration
with the Registrar of the International Criminal Court, accepting the
Court’s jurisdiction “for the purpose of identifying, prosecuting and
judging the authors and accomplices of acts committed on the territory
of Palestine since 1 July 2002”. This declaration gives the ICC
jurisdiction to investigate all suspected crimes – regardless of the
nationality of the perpetrator – committed on Palestinian territory.

The reality on the ground demonstrates the clear and urgent need for judicial intervention.

Since
the beginning of the Oslo process over 20 years ago, the rights of the
Palestinian people have been continuously sacrificed in the name of
political progress. The peace process’ forfeit of the rule of law and
human rights was intended to secure peace and security. The result has
been neither peace nor security, but rather a consistent – and in recent
years, increasing – deterioration of the quality of life. In the West
Bank, including East Jerusalem, the expansion of settlements continues relentlessly, while the illegal Annexation Wall
creates a situation that is completely at odds with both international
law and the stated goals of the peace process. In the Gaza Strip we are
focused on securing access to medicines, water, adequate food, and, on
the right to movement, education and work.

Life
in Palestine is subject to the rule of the jungle: generals and
politicians know that they can violate the law with impunity, fuelling a
continuous cycle of violations and suffering. The result has been an increase in war crimes
committed against innocent civilians. Throughout Palestine we are
struggling for the right to live, and the right to live in dignity.

Pressure not to press charges

Against
this backdrop, the possibility of accountability at the ICC – and let
us be clear that this represents the possibility that, for the first
time, the law will be applied equally and impartially to all sides
– has been subject to political manipulation. Europe and the US in
particular, have consistently tried to block any possible ICC
intervention. In the context of Palestine’s bid for UN membership, the Guardian reported that the UK was basing its support for the resolution on
the State of Palestine refraining “from applying for membership of the
international criminal court or the international court of justice,
which could both be used to pursue war crimes charges or other legal
claims against Israel'”. President Mahmoud Abbas reported
similar pressures form the US: “I heard from the Americans …. They
said, ‘If you will have your state, you will go to the ICC. We don’t
want you to go the ICC.’”

On April 3, 2012, after a delay of over three years, Luis Moreno-Ocampo, then the ICC Prosecutor, issued a much criticised two page decision
refusing to accept jurisdiction over Palestine, on the basis that the
Office of the Prosecutor was not competent to decide whether Palestine
was a state and thus capable of accepting the Court’s jurisdiction. It
was claimed that this was a decision for the UN, although the statement
ignored the fact that in October 2011 – prior to the Prosecutor’s
decision – Palestine had been accepted as a Member State of UNESCO. On
November 29, 2012, the UN General Assembly recognised Palestine as a
“non-Member Observer State” leaving no possible doubt as to whether
Palestine can be regarded as a State vis-à-vis the ICC Statute.

It
appears that the ICC Office of the Prosecutor – despite its ability to
open an investigation based on Palestine’s still valid 2009 declaration –
is waiting for Palestine to ratify the Statute of the International
Criminal Court and become a full member.

Al
Haq and the Palestinian Centre for Human Rights are indeed pushing for
Palestine to ratify the ICC Statute and other international treaties.
However, the ICC’s current position is unacceptable.

Unjust justice

It
goes against the very object and purpose of the ICC to allow states to
escape accountability because they changed their mind after triggering
the Court’s jurisdiction, whether by subsequently refusing to ratify the
Statute or “pulling back” the initial referral. Justice cannot be held
to ransom in this way.

It
is even more unacceptable to leave millions of civilians outside the
scope of international justice because of political pressures exerted on
the government, especially if it is in an extremely weak position as a
government under occupation, and cannot take bold positions without the
support of the international community.

Decisions
such as these must be taken by a judicial organ of the Court,
delegating such an important admissibility decision to political bodies
undermines the independence of the Court, and Article 19(3) of the Rome
Statute should be utilised in this regard.

The
reality of the situation in Israel and Palestine demands urgent
intervention. The prosecutor’s April 2012 “decision not to decide”
turned its back on both the gravity of the situation, and the
International Criminal Court’s mandate “to put an end to impunity for the perpetrators” of international crimes.

We
urge the prosecutor to visit Palestine, to meet with the victims, and
to experience the reality on the ground. Now more than ever, the need
for justice, and not political parlour games, is apparent. Justice is
not a commodity that can be traded in the name of political progress.
The International Criminal Court must not become complicit in the
on-going failures of the peace before justice process. It should live up
to its mandate – and the expectation of victims worldwide – and take
concrete steps towards ending impunity in Israel and Palestine.

Raji Sourani is Director of the Palestinian Centre for Human Rights, based in Gaza.

Shawan Jabarin is General Director of Al-Haq, an independent Palestinian non-governmental human rights organisation.