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End impunity in Palestine: calling for investigation and prosecution by the International Criminal Court


January 2009, in
the wake of the 2008-2009 Israeli offensive ‘Operation Cast Lead’, the Palestinian
National Authority lodged a declaration accepting the exercise of jurisdiction
of the International Criminal Court, pursuant to Article 12(3) of the Rome
Statute. In April 2012, the then Prosecutor of the International Criminal
Court, Luis Moreno Ocampo, turned down this request, declaring that he was not competent to decide
whether Palestine is a State such that it can accept the jurisdiction of
the ICC
. This decision by the prosecutor of the ICC had the effect
of denying the people of Palestine access to
justice at the international level for violations of international humanitarian
and human rights law committed against them by Israel. In doing so, the Prosecutor
not only overstepped his mandate, by exercising judicial rather than
prosecuting power, he also disregarded Article 2 of the Universal Declaration
of Human Rights, which states that “[…] no distinction shall be made on the
basis of the political, jurisdictional or international status of the country
or territory to which a person belongs, whether it be independent, trust, non-self-governing
or under any other limitation of sovereignty.”


only judicial recourse available to Palestinians at present is to file a
complaint with the Israeli Military Advocate General (a criminal procedure) and
the compensation officer of the Israeli Ministry of Defense (a civil, or tort
procedure). Previous efforts to seek justice through the Israeli court system
have been ineffective, failing to lead to any substantive delivery of justice. We
have worked for many years within the Israeli judicial system, trying to
achieve justice and accountability for Palestinian victims; this experience has
unequivocally proven that the system is incapable of ensuring an effective
remedy for Palestinian victims. This conclusion was confirmed by the UN Committee
of Experts following the so-called ‘Operation Cast Lead’ of 2008-2009. The
Committee stated: “the official inquiry must be conducted by a truly
independent body, given the obvious conflict inherent in the military’s
examining its own role in designing and executing ‘Operation Cast Lead’”.


the absence of an independent body which is empowered to investigate the
alleged commission of crimes against the people of Palestine and to hold the perpetrators
accountable, Israeli forces continue to act with impunity and disregard
numerous principles of international human rights and humanitarian law. It is
this culture of impunity which has allowed Israel to carry out yet another
offensive against the Gaza Strip in November 2012. During ‘Operation Pillar of
Defense’, indiscriminate and disproportionate attacks resulted in the deaths of
100 Palestinian civilians, and the injury of 1261.


that Palestine
has officially been recognized as a State by the UN General Assembly, we, the
undersigned, repeat our call for justice and accountability, and we call upon:


1- The
State of Palestine to sign and ratify the Rome Statute without undue delay, and
to lodge a declaration with the Court’s Registrar under Article 11 (2) and 12
(3) of the Statute, accepting the exercise of jurisdiction by the Court from
the date of entry into force of the Statute, 1 July 2002;

2- The
Prosecutor of the International Criminal Court, following the accession of
Palestine to the Rome Statute, to initiate an investigation proprio motu into
alleged war crimes and crimes against humanity which are committed in Palestine
in violation of the Statute, and to request an authorization of the Pre-Trial
Chamber to proceed with an investigation, pursuant to article 15 of the

3- The Prosecutor of the International Criminal Court to
reopen the preliminary examination, and to take into account the proper
elements in order to finally open an investigation into the situation in
Palestine, bringing the issue before the Pre-trial Chamber for a judicial determination
of the matter.