Take the Case
By John Dugard
A request is pending before the International Criminal Court in the Hague into whether international crimes were committed during the Israeli operations in Gaza in December 2008.
Over 1,400 Palestinians were killed, including at least 900 civilians, and over 5,000 wounded in the offensive. Some 3,000 homes were destroyed, as were many government buildings, schools, universities, mosques, hospitals and factories.
Several investigations — including one by the Arab League Independent Fact Finding Committee (I.F.F.C.), which I chaired — have found considerable evidence that serious crimes were committed in Israel’s offensive.
The I.F.F.C. reached its conclusions on the basis of the facts above, the testimony of witnesses of cold-blooded killings by Israeli soldiers, the use of weapons designed to cause the maximum suffering and evidence that strongly suggested that Israel had made no serious attempt to distinguish between civilians and military targets.
Our investigation found that Palestinian militants also committed war crimes, but attributed responsibility for most of the serious international crimes in the conflict to Israel.
Israel is not a member of the International Criminal Court, and so the I.C.C. does not have jurisdiction on its territory. The U.N. Security Council could refer the situation to the I.C.C. as it did in the case of Darfur. This, however, is unlikely as such a move would certainly be vetoed by the United States.
This leaves only one avenue that offers any prospect of prosecution and that is the Palestinian request now before the prosecutor of the I.C.C., Luis Moreno-Ocampo, for an investigation into whether international crimes have been committed on Palestinian territory.
The Rome Statute, under which the I.C.C. was established, does allow a state not party to the statute to declare that it accepts the jurisdiction of the I.C.C. for international crimes committed within its territory. Significantly, the Palestine declaration would allow the I.C.C. to exercise jurisdiction over crimes committed by both Palestinians and Israelis on Palestinian territory.
There is an obstacle in this approach, however — the question whether Palestine is a “state.” The Rome Statute fails to define a state, and there is no international recognition board for aspirant states, leaving it to the I.C.C. itself to make such a determination.
Over 100 states have recognized a “State of Palestine,” and it is a member of the Arab League. Moreover, the Palestinian National Authority has diplomatic relations with many states and observer status at the United Nations. It is not necessary for the I.C.C. prosecutor to decide that Palestine is a state for all purposes, but only for the purpose of the court. In so deciding, Mr. Moreno-Ocampo should not adopt a restrictive approach that emphasizes the absence of a fully effective government, but rather an expansive approach that gives effect to the main purpose of the I.C.C.
Several factors favor an expansive approach.First, there is the fact that the Palestinian entity has been widely recognized as a state and meets most of the requirements of statehood — population, territory, government and ability to conduct international relations. Admittedly its government is weak as a result of the Israeli occupation and the feud between Fatah and Hamas. States have, however, been admitted to the United Nations with less effective governments in order to promote the aims of the U.N. In 1992 Bosnia–Herzegovina was admitted in the middle of a civil war in an effort to secure peace, and several former colonies in Africa with few governmental structures were admitted in order to promote the goal of self-determination.
Second, the Palestinian National Authority has a judicial system more developed than that of many members of the I.C.C., which would allow it to comply with the cooperative obligations contained in the statute.Third, the purpose of the Rome Statute, as proclaimed in its preamble, is to punish those who commit international crimes and to prevent impunity. If an entity claiming to be a state, and recognized as such by a majority of states, makes a declaration under the I.C.C. statute that seeks to give effect to such goals, the I.C.C. should accept it as a state for the purpose of the I.C.C. statute.
A decision by the I.C.C. to investigate whether crimes were committed in Gaza, in the course of Israel’s offensive, would also give the I.C.C. an opportunity to show that it is not infected by a double standard and that it is willing to take action against international crimes committed outside Africa.
John Dugard, a South African professor of law, was chairman of the Independent Fact Finding Committee established by the Arab League to investigate violations of humanitarian law during Israel’s military operation in Gaza in 2008.
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