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 authorized 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 organizations 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 organizations 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.2

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 recognized 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.