Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

http://opiniojuris.org/2014/08/05/bar-human-rights-committee-england-wales-asks-otp-investigate-gaza/

5 Responses

  1. Where have these folks been? Violations of international law in Syria doesnt bother them. Assad butchering his citizens? Who cares? Libya – no one cares? A dozen hot spots around the world where violations of law are involved such as crimes against humanity, state sponsored torture, financing of terrorism, rape, extra-judicial execution, etc, and yet this group doesnt care about those “other” violations. We all know where this is coming from – the one sided dimension of “hospitals and schools” means Isreal is being singled out. It is bad enough that the inquiry is not balanced as KJH points out even he acknowledges that hamas perpetrated war crimes. But the problem I have is that conflicts rage around the world – thousands are murdered, executed and tortured yet only Isreal’s actions (which in my opinion are defensive and arise from hamas’ provocations mainly firing rockets) are selected for investigation.

  2. With respect, you have no idea what you’re talking about. Many of the signatories have been deeply involved in the struggle for justice in places like Syria and Libya. Just go read some of the bios of the Doughty Street barristers and you’ll see what I mean.

  3. I am trying to get an answer to a couple of points as to Israeli Military Doctrine that were in a Haaretz piece by Yesh Din.

    Are the following two points and accurate expression of current Israeli military doctrine.

    1) Targeting of Classic military targets (bases, combatants, weapons stockpiles and so forth) but also facilities and objects whose connection to the enemy organization is nonmilitary in nature “symbols of the Hamas government” (offices, policemen, the parliament building, houses belonging to Hamas commanders and operatives)

    2) Entitlement to treat the entire area as a legitimate target and bombard it via air strikes or artillery shelling – as long as we first warn all the residents of our intention to do so and give them time to leave

    Is this an accurate description of the military doctrine under which the IDF is/was conducting operations in Gaza?
    Best,
    Ben

  4. Ben,

    I have scoured these documents for an answer to your two questions, but hopefully they might be of assistance in determining the stated IDF position.

    The Operation in Gaza: Factual and Legal Aspects (http://www.mag.idf.il/SIP_STORAGE//FILES/8/638.PDF)

    Military Advocate General’s Corps – Operation Pillar of Defense (http://www.mag.idf.il/sip_storage/FILES/0/1350.pdf)

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