Abstract
On 22 May 2009, four months after the end of the devastating Israeli attack on Gaza (the so-called ‘Operation Cast Lead’) the International Section of the Lelio Basso Foundation organised an international conference in Roma (Italy), which eventually inspired the present book.
C. Meloni is Researcher in Criminal Law, University of Milan, and Alexander von Humboldt scholar, Humboldt University of Berlin. G. Tognoni, Medical Doctor, is Secretary General to the Permanent Peoples' Tribunal, residing in the Lelio Basso Foundation, Rome.
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Notes
- 1.
According to this article, “If the acceptance of a State which is not a party to this Statute is required under para 2 that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.”
- 2.
Infra, Sect. 2.2.
- 3.
The editors wish to thank once again all the eminent speakers that found the time to put in writing their oral interventions, and in particular Professors Eric David, Flavia Lattanzi, Giuseppe Palmisano and François Rigaux, Dr. Gabriele Della Morte, Lawyers Raji Sourani and Gilles Devers and Ms Mireille Fanon Mendes-France.
- 4.
Director of the Palestinian Centre for Human Rights (PCHR), http://www.pchrgaza.org. Executive member of the International Commission of Jurists (ICJ); Vice President of the International Federation of Human Rights (FIDH) and President of the Arab Organization for Human Rights.
- 5.
At the time of editing the present book (July 2011), the situation is unfortunately not substantially different than two years ago. The illegal closure of the Gaza Strip has prevented any real reconstruction, and has worsened the economic and social conditions of the civilian population, which continues to be cut off from the rest of the world, without access to the most basic needs, including a decent health care [ChM].
- 6.
These figures are based on initial estimates.
- 7.
Interim Agreement on the West Bank and the Gaza Strip, Israel–Palestine, September 28, 1995 (emphasis added).
- 8.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ, July 9, 2004, paras 111, 112, 113.
- 9.
See, Israel Government Communiqué, Security Cabinet Declares Gaza Hostile Entity, September 19, 2007.
- 10.
Ibid.
- 11.
Ariel Sharon, Prime Minister of the State of Israel, Speech before the General Assembly of the United Nations, September 15, 2005.
- 12.
Despite these assertions, Israel remains the Occupying Power in the Gaza Strip, based, inter alia, on the level of effective control—including control of all land, sea, and air borders—which it still exercises.
- 13.
The Citizenship and Entry into Israel Law (temporary provision) 5763—2003.
- 14.
HCJ 7052/03, Adalah v. The Interior Minister (decision delivered on 14 May 2006), para 12 (emphasis added).
- 15.
Ibid., para 78 (emphasis added).
- 16.
Article 14(2), ICCPR.
- 17.
HCJ 425/89, Zofan v. the MAG, 43(4) P.D. 718, 725.
- 18.
See, PCHR Report 2010a.
- 19.
See, inter alia, Israeli Supreme Court decisions: HCJ 5699/07, Jane Doe (A) v. The Attorney General (decision delivered on 26 February 2008); and HCJ 425/89, Suffan v. The Military Advocate General, PD 43(4) 718, 727 (1989).
- 20.
HCJ 5699/07, Jane Doe (A) v. The Attorney General (decision delivered on 26 February 2008), para 10 of Deputy Chief Justice Rivlin’s ruling.
- 21.
Wilkinson 2002.
- 22.
Article 539A of the Military Justice Law—1955 states that, “Anything that is said during the course of a military probe, in a protocol of a probe, or any other materials prepared during a probe, as well as its summaries, findings and conclusions, shall not be accepted as evidence in court, except for in a trial for providing false information or concealing an important piece of information in a probe.” Article 17(a) of the General Security Services Law—2002 states that, “Anything that is said during an internal probe or in a report prepared following an internal probe, including protocols, findings, conclusions or recommendations […] shall not be accepted as evidence in court, except for in a disciplinary procedure or a criminal trial for providing false information or knowingly concealing an important piece of information in a probe”.
- 23.
Feldman and Blau 2009, available at http://www.haaretz.com/hasen/spages/1057648.html.
- 24.
- 25.
Additionally, since the beginning of the second intifada the number of investigations into cases of death and injury of Palestinians has dramatically dropped, even when not involved in hostilities; B’Tselem reports that between 2000 and 2008 only 287 such exceptional investigations were opened; only 33 of these cases resulted in actual indictments. See http://www.btselem.org/English/Accountability/Investigatin_of_Complaints.asp.
- 26.
Professor Emeritus, Law of Armed Conflicts, Université Libre de Bruxelles.
- 27.
Cf. Spiropoulos 1949, p. 35.
- 28.
- 29.
Spiropoulos 1949, pp. 61–81, 289.
- 30.
Comp. U.S. Court of App., 2nd Cir., 21 June 1991, Klinghoffer, paras 73–74.
- 31.
- 32.
- 33.
Selected Legal Opinions, UN Juridical Ybk., 1989, 373.
- 34.
Cf. Salmon 1988, pp. 59–60.
- 35.
Cf. A/Res. 2758 (XXVI), 25 Oct. 1971; a number of small States supported Taiwan's candidature to the United Nations, see Doc. ONU A/55/227, 4 August 2000, add. 1 et 2.
- 36.
See Carpentier 1991, p. 650.
- 37.
Carpentier 1986, 98, cited by Ruiz Fabri 1992, p. 168.
- 38.
Cf. Lapidoth and Calvo-Goller 1992, pp. 802–803.
- 39.
For the Arbitration Commission of the Commission on Yugoslavia, "La reconnaissance par les autres Etats a des effets purement déclaratifs", opinion of 29 November 1991, para 1, a. We consider the reality to be rather more nuanced: see Ruiz Fabri 1992, pp. 153–154, 163.
- 40.
- 41.
A/RES 43/177, 15 December. 1988, 2nd considering.
- 42.
Ibid., 4th considering.
- 43.
- 44.
A/Res. 97 (I) of 14 December 1946.
- 45.
See Bahrain's Counter-Memorial, 11 June 1992, II, p. 135.
- 46.
Detail of the vote on UN Resolution 43/177 at http://unbisnet.un.org: 104 in favour, 2 against, 36 abstentions, 17 did not vote.
- 47.
UNSC Resolution. 271, 15 September 1969, para 4.
- 48.
UNSC Resolution 446, 22 March 1979, para 3; Resolution 681, 20 December 1990, para 4; Resolution 726, 6 January 1992, para 2; Resolution 904, 18 March 1994, preamble, 6th recital.
- 49.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ, 9 July 2004, para 89 (emphasis added).
- 50.
Ibid., para 96.
- 51.
SCSL, Case SCSL-04-15-T, Sesay et al., 9 March 2009, para 982 (emphasis added), in http://www.sc-sl.org.
- 52.
Professor of International Law at the University of Camerino. This contribution is based on the author’s article “La Corte penale internazionale di fronte all’operazione ‘Piombo Fuso’ e al problema della statualità della Palestina”, which was published in I diritti dell’uomo. Cronache e battaglie, 3, 2009, 54–60, following the Conference in Rome of 22 May 2009.
- 53.
See the report No Safe Place, produced by an independent committee of experts chaired by Prof. John Dugard and presented on 30 April 2009 to the League of Arab States (see infra Chap. 17, Annex), and the Report prepared by the ‘UN Headquarters Board of Inquiry’ commissioned by the UN Secretary General and presented to the Security Council on 5 May 2009.
- 54.
A request to this effect has already been submitted to the Chairman of the Security Council by Amnesty International and by Bolivia, as a non-permanent member of the Security Council.
- 55.
Such a procedure would also apply even should the Prosecutor not take the initiative to request authorisation to institute an investigation on the basis of complaints made by NGOs or individuals, and also in the event of a referral made to the Prosecutor by a State Party under Article 14 of the Statute. In that case, the Prosecutor would not have to request prior authorisation from the Pre-Trial Chamber to commence investigations, but there would be the possibility for the Prosecutor to refer any problems to the Pre-Trial Chamber until the moment the charges are formally confirmed. And even if no issue regarding jurisdiction in connection with the problem of Palestinian statehood had been raised before that moment, the Pre-Trial Chamber could at all events take the initiative to raise the issue when deciding on the confirmation of the charges. Lastly, even in this case, the Pre-Trial Chamber's decision for or against the jurisdiction of the Court could be appealed before the Appeals Chamber pursuant to Article 19 of the Statute.
- 56.
In this connection, the ICJ was recently asked by the UN General Assembly to issue an opinion on the international subjectivity and statehood of what we might call an ‘untypical political entity’. We are referring to the 10 October 2008 request for an opinion on the “Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo.”
- 57.
- 58.
Note from the Swiss Government of 13 September 1989, in respect of which see the critical comments by Eric David, supra in this Chapter.
- 59.
The situation is different in the case of the regional interstate lawmaking bodies which are geopolitically close to Palestine, and sensitive to Palestinian demands for statehood. One only has to think of the fact that ever since 1976 Palestine has been considered a full member State of the League of Arab States.
- 60.
In this latter sense, one might consider the fact that the Court rejected Israel’s claim of lawful self-defence to justify its conduct, because the terrorist attacks organised in, and launched from the Palestinian territories, would not qualify as an armed attack launched by another State (Opinion, para 139).
- 61.
Lecturer in International Law, Università Cattolica del Sacro Cuore, Milan.
- 62.
See Rome Statute, Article 15 bis and Article 15 ter.
- 63.
See Rome Statute, Articles 25 and 26.
- 64.
“Always partial (rather than partisan)”, Garapon 2002, p. 84.
- 65.
See Rome Statute, Article 33. The second paragraph of this article adds that, “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.”
- 66.
See Rome Statute, Article 28 (Responsibility of commanders and other superiors). With the significant difference that whereas for military commanders it is necessary that they “either knew or, owing to the circumstances at the time, should have known” that the forces were committing such crimes, for other superiors is sufficient that they “either knew, or consciously disregarded information which clearly indicated”, that the subordinates were committing such crimes.
- 67.
See Rome Statute, Article 29.
- 68.
See Rome Statute, Article 27.
- 69.
See Rome Statute, Article 12.
- 70.
See Rome Statute, Article 6.
- 71.
See Rome Statute, Article 7.
- 72.
See Rome Statute, Article 8.
- 73.
United Nations Charter, Preamble and Article 1.
- 74.
See, Kirsch and Robinson 2002, p. 78.
- 75.
That review was carried out in Kampala in June 2010, and produced a definition of the crime based on a non-binding resolution of UN General Assembly adopted in 1974, cf. Res. 3314 (XXIX) adopted by United Nations General Assembly on 14 December 1974. See Rome Statute, Article 8 bis [ChM].
- 76.
See Rome Statute, Article 8 bis(2)(b).
- 77.
The main conditions are that there must be a minimum of thirty ratifications by the Member States that have accepted the amendment to incorporate this crime, secondly that a further resolution must be adopted with at least a two-thirds majority of the States parties after 2017. Last, if the trigger mechanism is not activated by the Security Council consent is required from the aggressor state. A restriction of this kind is not provided for any other crimes: for example, in order for the prosecutor to investigate the crime of aggression acting on his or her own initiative after 2017, it will not be sufficient for the territorial State to have accepted the amendment, but it will also be necessary to secure the consent of the aggressor (and this is highly improbable).
- 78.
“Diplomacy prevails over law. Only jurists are surprised by this contradiction.” Dupuy 1999, p. 293.
- 79.
Cf. Resolution 1593 adopted by the Security Council on 31 March 2005 (Darfur) and Resolution 1970 adopted by the Security Council on 26 February 2011 (Lybia).
- 80.
See Rome Statute, Article 16.
- 81.
See Glasius 2009.
- 82.
One interpretation in support of the legitimacy of the Palestinian declaration has been advanced by Alain Pellet, and endorsed by a significant number of co-signatories, in an opinion entitled The Effects of Palestine’s Recognition of the ICC’s Jurisdiction, 2010, reprinted in Chap. 9 of this Volume.
- 83.
- 84.
See Rome Statute, Article 15(4).
- 85.
Researcher in Criminal Law, Università degli Studi of Milan.
- 86.
See the Preamble of the Rome Statute of the International Criminal Court.
- 87.
See HRW Report 2006.
- 88.
See the various country reports by Amnesty International 2009.
- 89.
See Werle 1997, p. 822.
- 90.
See ICTY, Prosecutor v. Karadzic et al.(IT-95-5/18), Trial Chamber Decision, 16 May 1995, paras 25–26.
- 91.
For a comprehensive study on this form of liability, may I refer you to, Meloni 2010.
- 92.
The commission, and relative report, was named after its President, Yizhak Kahan, former president of the Israeli Supreme Court. The other members were Aharon Barak, judge of the Supreme Court, and Yona Efrat, Major General.
- 93.
See PCHR Report 2010b.
- 94.
See HRW Report 2006, p. 37.
- 95.
The new Bill was enacted in November 2009; the amendment limits Spanish jurisdition on international crimes to cases where (i) the alleged perpetrators are present in Spain, (ii) the victims are of Spanish nationality, or (iii) there is some relevant link to Spanish interests. Moreover Spain will not have jurisdiction if another ‘competent court or international Tribunal has begun proceedings that constitute an effective investigation and prosecution of the punishable acts’.
- 96.
Evidence indicating the commission of war crimes during operation Cast Lead in Gaza were not wanting before the Norwegian prosecutor. However, the prosecutor, Siri Frigaard, eventually decided not to open the investigation, purportedly for administrative/practical considerations.
- 97.
Professor of International Law, Università Roma Tre.
- 98.
This is what the federate States of USA, as well as the Bosnian entities do, although not being independent at the international level.
- 99.
The PNA being precisely the entity endowed with self-government functions and working in coordination of PLO, the entity representing at the international level all the Palestinian, regardless of their residence on the territories (Israel also having recognised in 1993 its representing role) and still enjoying an observer status at UN and other international institutions.
- 100.
Which have been qualified by the Fact-Finding Mission as ‘blind attacks’.
- 101.
PCHR Press Release 2009a.
- 102.
See the paper by Raji Sourani, supra in this Chapter.
- 103.
See the paper by Chantal Meloni, supra in this Chapter.
- 104.
See ICJ, Arrest Warrant case, I.C.J. Reports 2002, at 3 ff. Particularly controversial is the question with respect to former high state officers suspected of criminal behaviours in execution of their official functions even where these criminal behaviours are to be qualified as crimes of international concern.
- 105.
See, more thoroughly, Lattanzi 2009, pp. 461 ff.
- 106.
See the paper of Gabriele Della Morte supra in this Chapter.
- 107.
See Lattanzi 2010, pp. 181 ff.
- 108.
The Green Line was fixed the 3rd April 1949 in the armistice between Israel and Jordan. The ICJ considers as territories occupied by Israel the territories between the Green Line and the former eastern boundary of Palestine under the mandate, occupied by Israel in 1967 (including East Jerusalem).
- 109.
Egypt has never, and Jordan no longer is claiming sovereignty over the Palestinian territories.
- 110.
See infra in this Volume, Chap. 9.
- 111.
See the paper of Giuseppe Palmisano, supra in this Chapter.
- 112.
Professor Emeritus of International Law, Université Catholique de Louvain, and Member of the Permanent Peoples’ Tribunal.
- 113.
See, for further information on the Peoples’ Tribunal, the website of the Lelio Basso Foundation, http://www.leliobasso.org, under the international section [ChM].
- 114.
The complaint was signed by 350 NGOs, from Europe, the Middle East, Africa and South America. It was signed by a team of forty lawyers.
- 115.
The Declaration by the Minister of Justice of PA and the forum of discussion opened by the ICC Prosecutor.
- 116.
Israeli Security Cabinet, 19 September 2007: http://www.mfa.gov.il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm.
- 117.
According to Article 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
- 118.
UN General Assembly: http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR034890.pdf?OpenElement.
- 119.
ICJ, Case concerning military and paramilitary activities in and against Nicaragua, 1986, para 188. See also: ICJ, Namibia case, Advisory Opinion, 21 June 1971, para 96; ICTY, Kupreskic case, Judgement, 14 January 2000, para 535; US, Military Tribunal at Nuremberg, List (Hostages Trial) case, 8 July 1947–19 February 1948.
- 120.
Article 50(1)(a) of the UN Draft Articles on Responsibility of States for Internationally Wrongful Acts. http://www.ilsa.org/jessup/jessup06/basicmats2/DASR.pdf.
- 121.
- 122.
This provision was recognised as part of customary law, as the International Court of Justice remarked, cf. ICJ, Case concerning military and paramilitary activities in and against Nicaragua 1986, para 195.
- 123.
ICC Statute under Article 8 bis Article 8 bis, inserted by Resolution RC/Res.6 of 11 June 2010.
- 124.
On the principle of distinction cf.: Hague Regulations, Article 3; Fourth Geneva Convention, Article 27 and 51; Additional Protocol I, Article 43(2), 50 and 51(3); ICC Statute, Article 8, 2, a, i. Jurisprudence: ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, paras 78–79; ICTY, Tadic case, Prosecutor’s Pre-Trial Brief, 10 April 1996; ICC, Pre-Trial Chamber I, Decision on the confirmation of charges, Katanga and Ngudjolo Chui, 30 September 2008, No ICC-01/04-01/07. On the principle of proportionality: Article 51(5)(b) and 57(1) of Additional Protocol I; ICC Statute, Article 8(2)(b)(iv). Jurisprudence, ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, paras 30 and 41; ICTY, Kupreskic, Judgement, 14 January 2000, para 524. See also the Report “No Safe Place” http://www.arableagueonline.org/las/picture_gallery/reportfullFINAL.pdf [the Executive Summary of the Report is reprinted in this Volume as Annex to Chap. 17].
On the principle of precaution in attack cf.: Article 2(3) of the 1907 Hague Convention; Article 57(1) of Additional Protocol I; Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7. Jurisprudence: ICTY, Kupreskic, Judgement, 14 January 2000, paras 524 and 525. See also the ‘Goldstone Report’, A/HCR/12/48, Conclusions [the Executive Summary and the Conclusions of the Report are reprinted as Documents 2 and 3 in Part II of this Volume, ChM].
- 125.
ICJ, Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, para 80.
- 126.
Hague Regulations, Article 56; ICC Statute, Article 8(2)(b)(ix) and 8(2)(b)(xiii); also: Article 8(2)(e)(iv) and 8(2)(e)(xii); Hague Convention for the Protection of Cultural Property, Article 4 and Article 19; ICC Statute Article 8(2)(b)(ix); ICTY, Blaskic case, Judgement, 3 March 2000, para 185.
- 127.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para 111; UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, para 3.
- 128.
While indiscriminate rocket attacks against civilian targets in Israel are unlawful, Israel’s responsibility to fulfill its international obligations is completely independent from the compliance of Hamas with its own obligations under international law. States’ obligations, particularly those related to the protection of civilian life and civilian objects, are not subject to reciprocity.
- 129.
Special Session on "serious violations of human rights in the occupied Palestinian territory, including the recent aggression in the occupied Gaza Strip," Council of Human Rights of 9 January 2009, http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/index.htm.
- 130.
Article 85(5) of Protocol I of 1977 also states that "[...] subject to the application of the Conventions and this Protocol, grave breaches of these instruments are considered war crimes.”
- 131.
Fourth Report on the Draft Code of Crimes against Peace and Security of Mankind, by Mr. Doudou Thiam, Special Rapporteur, Yearbook of the International Law Commission, A/CN.4/398 and Corr. 1-3, 1986, vol. II (1), para 6. The ICTR also considered that “That the crimes against humanity may indeed be committed either within or outside of an armed conflict…." Prosecutor v. Kayishema and Ruzindana, Trial Chamber, Judgement of May 21, 1999, para 127.
- 132.
ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, para 25; ICTY, Delalic case, Judgment, 16 November 1998, paras 422–423, 452 and 454 and Part IV.
- 133.
Ibid., para 123.
- 134.
ICTR, The Prosecutor v. Jean Paul Akayesu, Chamber I, Judgement of 2 September 1998, para 582.
- 135.
Report of the International Law Commission on its second session from June 5 to July 29, 1950, Official Records, Fifth Session, Supplement No. 12 (A/1316), United Nations, New York, 1950, pp.12–16.
- 136.
United Nations ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 2.
- 137.
First Geneva Convention, Article 51; Second Geneva Convention, Article 52; Third Geneva Convention, Article 131; Fourth Geneva Convention, Article 148; Germany, Federal Supreme Court, Reparation Payments case, Judgement, 26 February 1963; Israel, District Court of Jerusalem, Eichmann case, Judgement, 12 December 1961, para 28; Italy, Military Tribunal of Rome, Priebke case, Judgement in Trial of First Instance, 1 August 1996. ICTY, Tadic case, Judgement on Appeal, 15 July 1999, paras 137–145 and 147–157.
- 138.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted Resolution 60/147 by the General Assembly, December 16, 2005.
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Meloni, C., Tognoni, G. (2011). Selected Materials from the International Conference ′Is There a Court for Gaza?′ 22 May 2009, Lelio Basso International Foundation, Rome. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_2
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