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
The ICJ calls for South Africa to stay in the ICC
Today the ICJ submitted a brief opposing the current efforts by South Africa to withdraw from the Rome Statute of the International Court.
The brief was submitted in collaboration with a number of South Africa’s leading jurists to the South African Parliamentary Portfolio Committee on Justice and Correctional Services.
The brief was signed by Retired South African Constitutional Court Justices Laurie Ackermann; Richard Goldstone; Johann Kriegler; Yvonne Mokgoro, Kate O’Regan, Zak Yacoob. It was co-signed by Navi Pillay, former United Nations High Commissioner for Human Rights, former judge of the ICC and former President of the International Criminal Tribunal for Rwanda (ICTR). Wilder Tayler, Secretary General, signed on behalf of the ICJ
The ICJ and leading South Africa jurists call on South African Parliamentarians not to pass The Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016].
They also urge South Africa to remain a party to the Rome Statute of the ICC and engage, where appropriate with other African States, in actively pursuing appropriate reforms within the Assembly of State Parties, with a view to making the ICC more effective in advancing the objectives of international justice.
“South Africa should actively encourage other African states to put in place legislation required to empower domestic courts with the ability to try genocide, war crimes and crimes against humanity. South Africa should continue to work constructively with civil society on the advancement of international criminal justice,” the report stated.
“Pursuit of justice and pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC. Its not an either or situation. Protecting heads of States from justice whatever they do compromises peace too much,” said Retired Justice Zak Yacoob.
The report also underscored the danger of an impunity gap if South Africa pulls out of the ICC, as there would be no other effective regional or international forum in which to prosecute the most serious crimes under international law.
“Given the devastating impact of impunity on the rule of law, on development efforts and on society at large, it is vital that South Africa projects itself as a leader in anti-impunity efforts in the region. Pulling out of the Rome Statute of the ICC would crush the best chances that Africa has today to tackle the pervasive impunity that affects the region and would be a most unfortunate move for South Africa and the wider international community,” said Wilder Tayler, Secretary General of the ICJ.
Background
South Africa is one of the earliest parties to the Rome Statute of the ICC. It signed the Rome Statute on the day it was adopted, 17 July 1998, and ratified it on 27 November, 2000. Both during the negotiations preceding the Rome Conference that established the Court in 1998, and at the Conference itself, South Africa played a leading role.
However, the events of June 2015 surrounding the arrival of President Omar al Bashir of Sudan in South Africa appears to have engendered a shift in South Africa’s posture, leading many observers to call into question the country’s commitment to international justice.
The failure by South African authorities to arrest and surrender President al Bashir to the ICC, although he had been indicted by the ICC for war crimes, crimes against humanity and genocide, led to the Southern Africa Litigation Centre (SALC) taking the government to court to compel it to fulfil its obligations both under the Rome Statute and the Implementation of the International Criminal Court Act 27 of 2002 (Implementation Act).
On 19 October 2016, the Minister of International Relations and Co-operation gave notice of South Africa’s intention to withdraw from the Rome Statute.
The Portfolio Committee on Justice and Correctional Services put out a call for submissions to be made to the Parliamentary Portfolio Committee on Justice and Correctional Services on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] to be made by 8th March 2017. The ICJ Brief was filed pursuant to that call.
Contact
Arnold Tsunga, Director of the ICJ Africa Programme, arnold.tsunga@icj.org and +277 164 059 26
RSA-ICC Withdrawal-Advocacy-Analysis Brief-2017 (Analysis brief in PDF)
Saif al Islam Gadhafi must be arrested and surrendered to the International Criminal Court
Following reports that Saif al Islam Gadhafi has been released from prison in Libya, the ICJ today called for him to be promptly arrested and surrendered to the International Criminal Court (ICC).
Saif al Islam Gadhafi was convicted by the Tripoli Criminal Court in July 2015 and sentenced, along with eight other former officials of the Moammar Gadhafi regime, to the death penalty.
At the time, the ICJ expressed its concern that the trial had not been fair, expressed its opposition to the death penalty, and called on the Libyan authorities to surrender Saif al Islam Gadhafi to the ICC.
In 2011, the ICC issued an arrest warrant for Gadhafi, who faces two counts of Crimes against Humanity including murder and persecution of civilians, allegedly conducted as part of an orchestrated campaign against demonstrators during the uprising in Libya in 2011.
Gadhafi was reportedly released from a prison in Zintan in April 2016, following instructions from the Minister of Justice to the city’s chief prosecutor. The instructions were reportedly based on a general amnesty law that was promulgated by the Libyan House of Representatives in August 2015.[1]
“Granting amnesty for crimes such as those for which Saif al Islam Gadhafi was allegedly responsible is totally incompatible with the rule of law, the right of victims to justice, and Libya’s international human rights obligations”, said Said Benarbia, Director of the MENA programme at the International Commission of Jurists.
“Instead of shielding him from accountability, the Libyan authorities should ensure that all those responsible for past and ongoing gross violations of international human rights law and serious violations of international humanitarian law are brought to justice in fair and effective criminal trials. A first step in this direction would be for the Libyan authorities to arrest Saif al Islam Gadhafi and surrender him to the ICC as a matter of urgency.”
The ICJ believes that impunity for gross human rights violations and war crimes, including impunity resulting from amnesties, is not conducive to peace, political stability and national reconciliation in Libya.
Indeed, such impunity may be perceived by those who continue to systematically violate rights and freedoms as a signal that they may never be criminally held to account.
At the same time, the ICJ absolutely opposes the death penalty, which it considers inherently to violate the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
Gadhafi would not face the death penalty in any ICC trial.
Saif al Islam Gadhafi’s lawyer has reportedly indicated that he will argue to the ICC that it should drop its proceedings, on the basis of article 20 of the Statute of the ICC, which addresses the circumstances in which a person who has already been tried for certain conduct by another court, may subsequently be tried by the ICC.
The ICJ stresses that any hearing to consider such arguments should not in any way suspend Libya’s obligation immediately to implement the ICC arrest warrant and to surrender Saif al Islam Gadhafi to the ICC.
“Libya should comply with its obligations under international law and dismantle the structural impunity that continues to prevail in the country, including by putting an end to politicized judicial proceedings and ensuring that prosecutors carry out their functions independently, impartially, and in defence of human rights,” added Benarbia.
[1] Law No. 6 of 2015
Contact
Doireann Ansbro, Associate Legal Adviser, ICJ Middle East and North Africa Programme, t: +216 71 841 701, e: doireann.ansbro(a)icj.org
Libya-Saif al Islam Gadhafi-News-Press Releases-2016-ARA (full press release in Arabic, PDF)
Darfur: warrant of arrest against Sudanese President
The ICJ today welcomed the decision to issue a warrant of arrest against the President of Sudan, Omar Hassan Ahmad Al Bashir, for crimes against humanity and war crimes.
This first decision, in which an international tribunal has sought the arrest of a sitting head of State, is a significant step forward towards breaking the cycle of impunity and bringing justice to victims in Darfur.
Sudan-Breaking the cycle of impunity and bringing justice to victims in Darfur-Press releases-2009 (full text, PDF)