HOME Legal Encounters International Criminal Court, andCommand Responsibility under International Criminal Law

International Criminal Court, andCommand Responsibility under International Criminal Law

In cooperation with Konrad Adenauer Stiftung Palestinian Territories, the Institute of Law of Birzeit University organised on 26 February 2015 a legal encounter on Palestine, International Criminal Court, and Command Responsibility under International Criminal Law. Delivered by Chantal Meloni,

Professor of International Criminal Law, University of Milan, Italy, the event brought together a select number of members of the legal community, academics, and representatives of Palestinian civil society organisations and international institutions. A significant number of law students at Birzeit University also attended the legal encounter.

In her opening remarks, Professor Meloni welcomed the audience and expressed her thanks to the IoL for hosting the event. The nexus between the International Criminal Court (ICC) and Palestine, including respective challenges,plays a significant role in the context of the international advocacy campaign launched by Palestinians. Most recently, Palestine has acceded to the ICC.

Professor Meloni made an overview of the International Criminal Law. In Palestine, the idea of using International Criminal Law remained only theoretical and impracticable for an extended period of time. It could not be materialised in light of Palestine’s status. Palestine has not been a state until recently. Then, Palestinians were not capable of acceding to the ICC or implementing subsequent obligations.

This is no longer the case, however. Over the past years, many developments have introduced a paradigmatic shift to Palestine’s status in regards to International Criminal Law. With respect to the question of Palestine, reference to International Law has been mishandled. International Law was seen to a contributing factor to entrenching the Palestinian-Israeli conflict. All the more so, some countries associated continued financial support to the Palestinian Authority (PA) with a pledge not to accede the ICC.

In 2009, following Operation Cast Lead on the Gaza Strip, the PA submitteda declaration under Article 12(3) of the Rome Statute,accepting the exerciseof ICC jurisdiction for “acts committed on the territory ofPalestine”In response, the Office of the ICC Prosecutor stated that the ICC had to assess whether the Palestinian declaration could be lodged in light of the then unclear international status of Palestine. The Office of the Prosecutor initiated a three-year preliminary investigation, culminating in a two-page decision by the ICC.
Accordingly, the Office of the Prosecutor could not “make the legal determination whether Palestine qualifies as a State for the purpose of acceding to theRome Statute and thereby enabling the exercise of jurisdiction by the Court underarticle 12(1).” Therefore, Palestine’s application was dismissed.

The ICC decision was criticised by many international organisations, including Amnesty International. Professor Meloni assessed that the ICC decision was not informed. At the time, Palestine was a member of the UNESCO a United Nations body.

In 2012, the General Assembly accorded Palestine a non-Member Observer State status in the United Nations. From the standpoint of international agencies, particularly the ICC, Palestine was entitled to accede to the Rome Statute with this upgraded status. Palestine would be eligible to prosecute and judgeIsraeli commanders, authors and accomplices of acts committed on the territory of Palestine.

To take effect as of 1 April 2015, the Palestinian President ratified the Rome Statutein 2015. Represented by President Mahmoud Abbas, the Palestinian Government lodged a new declaration under Article 12(3) of the Rome Statute, recognisingthe ICC jurisdiction over the situation in Palestine. The Palestinian application requests that the ICC Prosecutor investigate, retroactively, crimes that took place on Palestinian soil after June 13, 2014.Accordingly, the ICC investigation will cover Operation Protective Edge on the Gaza Strip.

After Palestine’s declaration had been filed, the ICC Prosecutor decided to launch a preliminary investigation. According to Professor Meloni, this is not literally an investigation; it is an analysis provided by the ICC Prosecutor through a preliminary analysis office. It addresses adequate allegations of Israeli violations and basis for the applicability of the ICC jurisdiction.

The ICC system is predicated on the principle of complementarity, which means that the Court’s jurisdiction is not a substitute of national courts. The ICC does not initiate an investigation or a trial if the accused can be brought before their own national courts. To this avail, domestic legislation needs to be amended to accommodate the Rome Statute.

Professor Meloni explained that prosecuting Israel for crimes should not be limited to war crimes committed in the Gaza Strip. The process must also hold Israel accountable for crimes against humanity, including the siege on the Gaza Strip, Separation Wall, settlement activity, apartheid regime, etc. To hold Israel to account for war crimes might be challenged by some difficulties. In the aftermath of each war, Israel claims that it establishes internal commissions of inquiry to investigate war violations. As a result, Israeli commanders might be easily immune from accountability for these crimes. In this context, Professor Meloni highlighted relevant IoL publications. Reference needs to be made to IoL’s Guidelines for Advocating Palestinian Rights in Conformity with International Law. The Guidelines explain why Palestinians need to expose the Israeli regime to a different legal framework and how this goal can be accomplished in line with International Law.

Professor Meloni emphasised that crimes should be associated with individuals. As the ICC does not impose penalties on states or institutions, crimes will be addressed to responsible commanders. To this end, reference should be made to two significant articles of the Rome Statute: Article 25(3)(b) provides that a commander shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if he or she “orders, solicits or induces the commission of such a crime which in fact occurs or is attempted”. In relation to the responsibility of commanders and other superiors, Article 28 prescribes that a military commander or person is held to account if he or she either knew or, owing to the circumstances at the time, should have known that the forces under his or her effective command and control, or effective authority and control as the case may be, were committing or about to commit crimes; and if that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress commission of crimes.

In the ensuing discussion, the audience raised several questions. Participants asked whether the ICC could prosecute criminals suasponte. Can Palestine initiate internal prosecutions of crimes committed by Palestinians during the internal Palestinian political split in the West Bank and Gaza Strip? What is the benefit of a retroactive acceptance of the ICC jurisdiction?