Palestine/Israel: ICC decision an important step towards accountability for crimes under international law
The ICJ welcomes the International Criminal Court’s (ICC) decision establishing that the Court can assert its jurisdiction over serious crimes alleged to have occurred in the State of Palestine since 13 June 2014.
On 5 February 2021, the ICC Pre-Trial Chamber I held by majority that: (i) Palestine has correctly acceded to the Rome Statute and has thus become a State party to it; and (ii) the ICC’s territorial jurisdiction extends to “the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
“The ruling is a first step towards breaking the cycle of impunity for crimes under international law committed by all parties to the conflict in Palestine,” said Said Benarbia, the ICJ’s MENA Programme Director. “The Prosecutor should immediately open an investigation with a view to establishing the facts about such crimes, and identifying and prosecuting those most responsible.”
The decision was prompted by a request of the ICC Office of the Prosecutor seeking confirmation of the Court’s territorial jurisdiction.
The Prosecutor had previously concluded that there is a reasonable basis to believe that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.”
On 16 March 2020, the ICJ submitted amicus curiae observations in support of the Court’s jurisdiction, arguing that:
- Palestine has successfully acceded, and is a State Party, to the Rome Statute. The Court should accordingly exercise its jurisdiction over Palestine as it does in respect of any other State Party;
- The Palestinian Territory over which the Court should exercise jurisdiction comprises the West Bank, including East Jerusalem, and Gaza; and
- Palestine is a State under international law, satisfying recognized international law criteria for statehood, displaying State activity and engaging in diplomatic relations with other sovereign States. The decades-long belligerent occupation of Palestine by itself has no decisive legal effect on the validity of its claim to sovereignty and statehood.
The Pre-Trial Chamber decision confirmed the first two of these observations, without considering the status of Palestine’s statehood under general international law.
Contact
Said Benarbia, Director, ICJ Middle East and North Africa Programme; t: +41 22 979 3817 e: said.benarbia(a)icj.org
Vito Todeschini, Legal Adviser, ICJ Middle East and North Africa Programme; t: +216 53 334 679 e: vito.todeschini(a)icj.org
Libya: Fact-Finding Mission a positive step towards accountability, which must be dispatched urgently
The ICJ welcomes the establishment of a Fact-Finding Mission (FFM) for Libya by the UN Human Rights Council (HRC) at its 43rd session yesterday.
The resolution, titled “Technical assistance and capacity-building to improve human rights in Libya,” mandates the FFM to investigate and preserve evidence of violations of international human rights law and international humanitarian law committed by all parties in Libya since the beginning of 2016, with a view to ensuring that perpetrators be held to account.
“This is a long overdue step in the pursuit of accountability in Libya,” said Said Benarbia, the ICJ’s MENA Programme Director.
“While parties to the conflict have escalated hostilities in recent years and Libyans have been increasingly subject to egregious violations of their rights, States have continued to prioritize politics over justice. The establishment of the FFM is a sign that international actors finally recognize accountability is necessary to end the scourge of violence in the country.”
The FFM is required to submit its written report to the HRC at the 46th session in February-March 2021, giving the FFM only nine months to carry out its work despite the ongoing imposition of COVID-19 measures that will impact its operations.
Given the FFM’s short operational period, the UN High Commissioner for Human Rights will have to move rapidly to appoint FFM experts and staff, allocate adequate resources and dispatch the mission. Staff appointed to the FFM should include experts in the investigation of sexual and gender-based violence crimes and the collection of evidence to a criminal standard.
“It’s imperative that the High Commissioner move quickly to dispatch this mission if it is to have any prospect of examining the full range of violations and abuses being committed across Libya,” said Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser.
“The OHCHR should ensure the FFM has the full complement of skills and expertise to most effectively investigate crimes being committed in Libya, particularly the widespread sexual violence being perpetrated on women, girls, men and boys.”
The Government of National Accord, the Libyan Arab Armed Forces and all other parties to the conflict should fully cooperate with the FFM, including by granting access to the territories and population over which they have control, where possible in the context of COVID-19.
Other States, in particular those supporting Libyan actors in the ongoing conflict, should also provide full cooperation.
“The cooperation of both national and international actors is necessary for the FFM to engage with victims and preserve evidence, key components of its mandate,” Kate Vigneswaran added.
“While other international investigative mechanisms have shown it’s possible to carry out effective investigations without access to the affected territory, if Libyan actors are truly committed to the populations they assert they serve, they should be facilitating access to all forms of justice, whether national or international.”
The FFM will complement the work of the International Criminal Court in Libya, which has outstanding arrest warrants against Saif Al-Islam Gaddafi, Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busayf Al-Werfalli.
The evidence preserved by the FFM may be used by the ICC, as well as States exercising universal jurisdiction, in their investigations and prosecutions.
Contact
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41 22 979 3817; e: said.benarbia(a)icj.org
Kate Vigneswaran, ICJ Senior Legal Adviser, t: +31 62 489 4664, e: kate.vigneswaran(a)icj.org, twitter: @KateVigneswaran
Background
Violations and abuses of international law, including unlawful killings and attacks on civilian objects, have continued unabated in the last few months. Most recently, on 11 June 2020, the UN Support Mission to Libya reported the discovery of at least eight mass graves, mainly in Tarhuna, in which the bodies of women and children were found. Reports further indicate that the Libyan Arab Armed Forces (LAAF), and their foreign allies, have laid anti-personnel landmines and other booby-traps in buildings as they withdrew from Tripoli, leading to causalities including among civilians returning to their homes after long periods of displacement. Reports of incidents involving “retributive crimes”, including the parading of corpses and looting of perceived opponents’ houses and public property, by GNA-affiliated armed groups have also surfaced.
The ICJ has repeatedly called on States to support the establishment of an international investigative mechanism for Libya, including in the interactive dialogue on the oral update by the High Commissioner for Human Rights on the Situation in Libya.
The draft of the resolution adopted yesterday was numbered A/HRC/43/L.40. The official adopted version will be published by the UN in the coming weeks.
Myanmar: Implement “provisional measures” order of the International Court of Justice without delay
The ICJ welcomes today’s Order of the International Court of Justice (Court) in the case of The Gambia v Myanmar indicating provisional measures to protect the rights of the persecuted Rohingya minority under the Genocide Convention and calls on Myanmar to implement the Order without delay.
“The Order is a significant step towards justice for the Rohingya as it imposes specific, legally-binding, obligations on Myanmar to take critical steps to protect their rights under the Genocide Convention,” said Sam Zarifi, Secretary General of the International Commission of Jurists, currently in Yangon, Myanmar. “It is now incumbent on the whole international community, including States, civil society and UN agencies, to urge and assist Myanmar to fulfil its obligations under the Order.”
In its Order, delivered orally, the Court found it had prima facie jurisdiction over the case and indicated a series of provisional measures, including that Myanmar must:
- take all measures within its power to prevent the commission of all acts within the scope of the definition of genocide set out in Article II of the Genocide Convention;
- ensure that its military as well as any irregular armed units which may be directed or supported by it, and any organizations or persons which may be subject to its control, direction or influence do not commit acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, or complicity in genocide;
- take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention; and
- submit a report to the Court on all measures taken to give effect to the Order within four months as from the date of the Order and thereafter every six months until a final decision on the case is rendered by the Court. Every report will be communicated to the Gambia which will then have the opportunity to submit to the Court its comments thereon.
Provisional measures are orders the Court has the power to make aimed at preserving the rights of the Parties to a case pending the final decision of the Court in order to avoid irreparable damage to the rights which are the subject of the dispute, in this case the rights of the Rohingya.
A hearing on the merits of the case will be heard at a later date.
The role of the Court is to settle disputes submitted to it by States in accordance with international law – its role does not extend to determining the criminal responsibility of individuals for perpetrating serious human rights violations.
“As Myanmar is unwilling and unable to conduct investigations and, where appropriate, prosecutions of serious human rights violations domestically which meet international law and standards, the various processes underway around the world directed towards criminal accountability- including the investigation of the International Criminal Court – remain necessary and urgent,” added Zarifi.
In 2018, the International Commission of Jurists issued a baseline study of the obstacles to accountability for serious human rights violations in Myanmar identifying “systematic impunity” within the country as a result of the “lack of accountability of perpetrators of human rights violations; lack of access to effective remedies and reparation for victims; and ongoing challenges with the independence and accountability of justice actors.”
International processes underway around the world directed at criminal accountability for serious human rights violations in the Myanmar situation include:
- On 14 November 2019, the International Criminal Court commenced an investigation into those crimes which were partially committed inside the territory of Bangladesh, a State Party to the Rome Statute.
- In September 2018, the UN Human Rights Council established a Independent Investigative Mechanism for Myanmar (IIMM), which is mandated to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses committed in Myanmar since 2011.
- In November 2019, a Rohingya activist, Tun Khin, filed a criminal complaint in Argentina under its “Universal Jurisdiction” law.
To download the full statement with background information, click here.
Contacts
Sam Zarifi, ICJ Secretary General, t: +41 79 726 4415; e: sam.zarifi(a)icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
ICJ senior legal adviser Kingsley Abbott explains the International Criminal Court process in an interview for BBC Burmese
In a video interview with the BBC’s Burmese broadcasting service, ICJ senior legal adviser Kingsley Abbott explains to the Myanmar public how the International Criminal Court prosecutor plans to investigate the crime against humanity of deportation from Myanmar to Bangladesh, which has affected around one million Rohingya.
Recorded on 24 August and published on 12 November 2019. The interview transcript is available in Burmese and English.
Contact
Kingsley Abbott, ICJ Senior Legal Adviser, e: kingsley.abbott(a)icj.org
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