On April 3, 2012, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) decided that it does not have jurisdiction to begin an investigation over cases related to the 2008-09 Gaza War. In January 2009, the Palestinian Authority had filed a letter with the Court, purporting to accept the Court’s jurisdiction in order to bring war crimes cases against Israeli officials.
Only states, however, may become members of the ICC. Due to political pressure from the Arab League, pro-Palestinian academics, and many NGOs, the OTP began a very public deliberation process involving NGO meetings, an on-line legal forum with UCLA Law School, op-eds in major newspapers, and submissions from outside parties (NGO Monitor’s submission can be found here.) After more than three years, the OTP finally decided that “Palestine” is not a state, and therefore, it did not fall under the ICC’s purview.
In response, many of the same NGOs that had lobbied the prosecutor in support of the PA’s goals attacked the OTP for its decision (see excerpts from statements below). These NGOs alleged that the decision was “political,” without elaborating how, and ignoring their own attempts to sway the ICC process. Additionally, the NGOs claimed that the decision was flawed because it denied “justice” for the “victims” – advancing the mistaken NGO conception of the ICC as a court of universal jurisdiction. In fact, as specifically stated in the 1998 Rome Statute – the governing framework of the court –, the ICC only has jurisdiction for war crimes, crimes against humanity, and genocide cases, in limited circumstances. The ICC was created to only adjudicate the very worst cases of mass murder and war crimes in situations where there is no functioning local judiciary. As reiterated by Richard Goldstone in his April 2, 2011 Washington Post op-ed and by many other commentators, the events of the Gaza War do not come close to meeting this threshold.
As they had in their submissions to the OTP and in many other issues relating to international law, the NGOs were driven by their own politicized agendas, as opposed to what the law actually says. If the NGO approach to the ICC were adopted, it would essentially mean the re-writing of the Rome Statute.
- “‘This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges,’ said Marek Marczy?ski, Head of Amnesty International’s International Justice campaign.”
- “Following all parties’ proven failure to fulfill their obligations to effectively investigate the crimes committed in the context of Operation Cast Lead, the ICC represented the most appropriate forum to pursue accountability.”
- “PCHR believes that the purpose of the Office of the Prosecutor is to pursue accountability, and to act in the interests of universal justice.”
- “The Prosecutor’s decision to act unilaterally…raises the suspicion that the Prosecutor was acting not in the interests of justice, but rather on the basis of political considerations. It is hard to escape the feeling that the victims and their representatives were deliberately deceived.”
- “In effect, this decision has placed the responsibility for such violations firmly in the political arena of the United Nations (UN) with the likely result that, once again, the interests of Palestinian victims will be sidelined indefinitely in favour of political expediency.”
- “However, the Prosecutor’s negative conclusion of the preliminary examination of the situation in Palestine should serve as a wake-up call for the Palestinian political representatives to genuinely work to advance the cause of justice for Palestinian victims within the international legal system…This could be achieved through a UN General Assembly Resolution clarifying the status of the state of Palestine as a member of the international community of States. The completion of this process would facilitate access to further international legal instruments, including the Rome Statute.”
- “Given that access to justice for victims of war crimes by both sides is at stake… delegating this decision to a political body undermines the vital independence of the Court and exposes the ICC to political influence over justice issues. The Office of the Prosecutor’s position establishes another a [sic]major barrier to justice for the victims…”
- “the Office of the Prosecutor is sending a message to those who committed crimes under international law that they are currently beyond the reach of international justice”
- “Secondly, the Office of the Prosecutor’s decision to form its own position in favour of a political determination, rather than seeking a judicial ruling by the judges, creates the danger that the Office of the Prosecutor will be subject to allegations of political bias and failing to act independently by relying on external political bodies to determine its jurisdiction.”
- “This decision, taken after more than 3 years of analysis is a huge deception for the victims in Palestine who feel once again that the justice ignore them.”