The Principle of Complementarity between the National Judicial System and International Criminal Court: Strategies to Expand the Scope of Accountability
Presentations were made by Dr. Valentina Azarova, lecturer at the Faculty of Graduate Studies research fellow at the IoL, Birzeit University, Professor Ata Hindi, researcher at Diakonia and research fellow at the IoL, and Dr. Anis Qasem, International Law expert and advisor to the Palestine Yearbook of International Law. The legal encounter brought together select members of the legal community as well as representatives of public institutions, civil society organisations, Palestinian Bar association, and international agencies.
In her opening remarks, IoL researcher Ms. Reem al Butmah welcomed the speakers and audience and highlighted significance of the legal encounter. Palestine has recently acceded to the International Criminal Court (ICC). The ICC Office of the Prosecutor has opened a preliminary examination into the situation in the occupied Palestinian territory (oPt). Ms. Butmah expressed her hope that the encounter add value to the ongoing debate over the State of Palestine’s obligations under the Rome Statute of the ICC.
Professor Hindi presented a chronological review of Palestine’s accession to international conventions on human rights and International Humanitarian Law. These include the four Geneva Conventions, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights. Beginning on 1 April 2015, Palestine has officially been a State Party to the Rome Statute of the ICC. Palestine is subject to civil obligations, which arise from accession to the ICC. Citing relevant instances, Professor Hindi explained that Palestinian legislation should reflect provisions of the Rome Statute. The Arab Model Law on Crimes within ICC Jurisdiction of the Arab League of Nations should be avoided. Finally, Professor Hindi advised that implementation of the Rome Statute needs to be coordinated with all Palestinian factions.
Dr. Azarova highlighted key challenges to the ICC functions in the Palestinian-Israeli context. The ICC may be politicised. As a reaction, Israeli has already established military committees to investigate crimes perpetrated by the Israeli army. The United Nations Security Council can also block any further action by the ICC for 12 months. This challenge should be taken seriously.
Expressing his thanks to the IoL for inviting him to the legal encounter, Dr. Qasem cautioned against domestic risks associated with approaching the ICC. In a politicised international criminal justice system, Palestine lacks a strategic vision of how to deal with the ICC. Dr. Qasem cited several examples where politics played a significant role in influencing international criminal justice practice. In the context of Israeli daily violations, Dr. Qasem emphasised that criminal cases need to be approached using a strategic, clear and informed approach. Dr. Qasem urged that the Palestinian strategy be guided by the Rome Statute. For instance, to materialise the principle of complementarity, Palestinians need to demonstrate that perquisites of Israeli trials are not fulfilled. Provided that it is admitted by the ICC, relevant evidence should be collected. A serious effort will be made to prepare criminal cases. A strategy will also be developed to take action in case a veto is used or investigation is blocked by the Security Council. According to Dr. Qasem, this situation is strange to the international criminal justice practice. Finally, Dr. Qasem urged that the strategy be developed by national experts and managed by a national official.
In the ensuing discussion, the audience raised questions and made informed interventions. Discussants highlighted Palestine’s obligations arising from the Rome Statute as well as the prerequisites to put these duties to effect.
