The French proposal before the United Nations General Assembly may have the merit of being pragmatic, but it includes an unacceptable condition: the commitment that the future Palestinian state does not resort to the International Criminal Court.
The universal nature of the claim for justice sweeping through North Africa and the Middle East does not stop at the Israeli-Palestinian border. The State of Palestine and the State of Israel must take advantage of this historical opportunity before the General Assembly to commit to acceeding the Rome Statute of the International Criminal Court.
In a situation marked by perpetration of international crimes and systematic impunity, as confirmed in the FIDH report entitled “Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes”, justice is not only a challenge and a right for victims of past crimes. An independent, fair and effective judiciary can contribute to deterrence and thus be a guarantee for future peace and stability. Should the national judicial system not able to play this decisive role, the international judicial system should be able to intervene.
Summary of the FIDH report
Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes
On the occasion of the UN General Assembly session in September 2011, the International Federation for Human Rights (FIDH) releases a position paper entitled “Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes”. The paper analyses the mechanisms available for Palestinian victims of international crimes to access an effective remedy before Israeli Courts, in light of the principle of complementarity under international criminal law.
Using international human rights law and international criminal law criteria, including the International Criminal Court’s criteria for the evaluation of complementarity as defined in Article 17 of the Rome Statute, the paper demonstrates the systematic denial of justice to victims due to Israel’s lack of independent, effective, prompt and impartial investigations into allegations of international crimes committed by the Israeli Military in the Occupied Palestinian Territories (OPT). It examines the Israeli criminal justice system, the High Court of Justice’s (HCJ) judicial review of criminal proceedings, and the functioning of military courts in the OPT. The findings of the paper conclude that the HCJ fails to uphold the standards of impartiality and independence; and that it often turns a black eye to acts of the Executive Branch, thus facilitating perpetration of international crimes through its active involvement in legitimising alleged war crimes and shielding political and military figures from criminal responsibility. In addition, as a consequence of its refusal to investigate the wider context of policies and strategies of Israeli military operations, the HCJ has failed to prevent criminal practices, and has allowed the continuation of the suffering of the Palestinian civilian population.
FIDH recalls that the report of the UN Fact-Finding Mission on the Gaza conflict showed that all investigations conducted in Israel were done within the military system, which has proved to be neither independent nor impartial, and has consequently effectively shielded political and military officials from prosecution. FIDH emphasises the vitality of command responsibility under international law as justice standards cannot vary according to military or political status.
FIDH stresses Israel’s failure to prevent and bring an end to the commission of international crimes, in addition to the continuing impunity. FIDH highlights Israel’s primary responsibility under international law to genuinely investigate and prosecute international crimes. According to the United Nations Human Rights Council (UNHRC) Resolution adopted at its 16th session, the General Assembly should submit the Goldstone report to the United Nations Security Council with the explicit recommendation to refer the situation to the International Criminal Court.
Israel’s failure to bring an end to impunity has led victims to refrain from submitting further cases as they see no possibility to access remedy, and fear reprisals by the Israeli authorities.
“Victims’ rights to justice is an unalienable right that cannot be compromised at any expense, including that of the Palestinian leadership’s bid to statehood at the United Nations” , said Souhayr Belhassen, FIDH President.
FIDH underlines its firm belief that the rights of Palestinian victims must be upheld and calls firstly upon the Palestinian leadership to make of the interest of victims a priority. Secondly, FIDH calls upon all States to act immediately to support the UNHRC recommended General Assembly resolution. FIDH notes that the recognizing Palestine’s statehood entails that the Palestinian government is obliged to uphold international law and international human rights law.
For more information:
Report : Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes
Conference at Colombia University, September 26 at 9:00 A.M. : International Justice In Practice: Challenges In The Search For Accountability