On 1 April 2015, Palestine became a State Party to the Rome Statute, able to refer any future war crimes committed within its territory to the International Criminal Court (ICC). This followed the launch of a preliminary examination into the Palestinian situation by the ICC Prosecutor on 16 January 2015, after Palestine submitted an ad-hoc declaration giving the ICC retroactive jurisdiction from 13 June 2014. However, crimes committed before that date will not be subject to investigation or trial by the ICC. This is one of the reasons why Universal Jurisdiction may still have an important role to play in bringing perpetrators of alleged war crimes in Palestine to justice.
Important limits on ICC jurisdiction
The ICC’s jurisdiction is not only limited by when the events occurred but also by the principles of Gravity, Complementarity and Interests of Justice. The Gravity principle requires an assessment of the scale, nature and impact of the crimes1 and would rule out the possibility of bringing many perpetrators of small-scale but serious crimes to justice. The principle of Complementarity requires there to be no overlapping domestic investigations and/or proceedings (not including sham investigations and/or proceedings).2 As some alleged war crimes committed against Palestinians since 13 June last year are currently being investigated by the Israeli Military Advocate General, the principle of Complementarity is very likely to present a hurdle to the ICC exercising jurisdiction. However, the Israeli military investigation process has been strongly criticised by human rights organisations for its complete inadequacy in providing full and credible investigations, accountability and justice for alleged serious violations of international humanitarian law. For example, the Israeli human rights organisations, B’Tselem and Yesh Din, released a joint statement on their refusal to cooperate with the Israeli Military Advocate General on 4 September 2014, due to “severe structural flaws that render it incapable of conducting professional investigations”.3
There is an alternative, or perhaps twin, option for prosecuting perpetrators of alleged war crimes within Palestine, in the form of Universal Jurisdiction. At an LPHR Student Network Panel Discussion on 18 March 2015 at King’s College London, Daniel Machover discussed the implementation of Universal Jurisdiction under UK law and its relevance to the Palestinian situation.
Universal Jurisdiction in the UK
Daniel Machover began by disagreeing with the contention that international criminal law is ‘uniquely political’ when compared to domestic law. International criminal law deals with the relationships between powerful states on an international level, making it more nakedly political. However it is not jurisprudentially any more political than domestic law that is shaped by politicians. Much like the Rome Statute, the concept of Universal Jurisdiction was envisioned to allow (and in some cases require) states to prosecute grievous crimes against humanity, regardless of territorial integrity. Universal Jurisdiction is premised on the principle that the impact of crimes such as genocide, war crimes and torture is so dire and threatening to world peace that states have a duty to prevent or investigate and prosecute those suspected of these crimes wherever possible.
Mr Machover then outlined the implementation of Universal Jurisdiction into UK domestic law, under the Geneva Conventions Act 1957 and the Criminal Justice Act 1988. The Geneva Conventions Act allows for prosecution of “any person, whatever his nationality”, who has committed a “grave breach of any of the scheduled conventions or the first protocol.” 4 Grave breaches of the Geneva Convention include wilful killing, torture or inhuman treatment, unlawful deportation or transfer or unlawful confinement of citizens of occupied territories, depriving those under occupation of the rights to a fair and regular trial and the extensive destruction and appropriation of property. Prosecution of under the Geneva Conventions Act could include any such offence committed since 1957.
Section 134 of Criminal Justice Act provides for the prosecution of torture committed by “a public official or person acting in an official capacity, whatever his nationality” who “intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.”5 Unlike the Gravity principle under the Rome Statute, the Criminal Justice Act is not limited to offences committed on a large scale. Many individuals involved in torture or inhumane treatment of Palestinian prisoners could therefore be the subject of potential prosecution.
There are critical obstacles to the exercise of Universal Jurisdiction, due in part to the role of the Attorney General in approving or preventing the prosecution of international crimes in the UK. Mr Machover highlighted the impact of the Shawcross Exercise in allowing for political considerations to influence the Attorney’s decision, based on the need to take ‘public interest’ into account. In effect the Shawcross Excercise allows for prosecutorial discretion to be a political rather than legal decision. As a result, considerations of trade, business or politics play a dominant role. This could have significant implications where attempts are made to prosecute Israeli officials. As seen below, the relationship between the British government and the Israeli government is likely to be taken into account.
Universal Jurisdiction and the bombing of the Arafat police station
Mr Machover highlighted an example of using Universal Jurisdiction which illustrates both its applicability and its vulnerability in the face of political considerations. In 2009, an application for an arrest warrant was made by a private individual in the UK, in connection with the bombing in Gaza of the Arafat police station during a peaceful graduation ceremony taking place on the first day of Israel’s 2008-09 military operation codenamed’Cast Lead’. An application was made to a District Judge for an arrest warrant against an Israeli official who had authorised the attack and who was visiting the UK. The application stipulated that she was responsible for a ‘wilful killing’ constituting a ‘grave breach’ under the Geneva Conventions Act. Israel had justified the attack on the Arafat police station on the basis that the officers were ‘Hamas police officers’. However, police officers are civilians in nature, and are therefore not a legitimate target under the principle of distinction in international humanitarian law. Additionally, even if evidence was presented that these new police officers had military combatant status,any attack on a legitimate target must be proportionate to the military advantage gained, requiring a careful and considered weighing up of the military advantage versus the collateral civilian damage. Simply branding the officers as ‘Hamas police officers’ would be insufficient as a basis for attack.. Indeed, the report of the UN Fact-Finding Mission established to investigate Operation Cast Lead6, found the bombing to be disproportionate and unlawful as the police officers were protected by civilian immunity. Notably, Israel had not investigated this alleged serious war crime.
The importance of both Universal Jurisdiction and the ICC in the pursuit of justice
In the example above, Universal Jurisdiction was put to practical use and an arrest warrant was subsequently issued for the Israeli official. However, she did not travel on that occasion, possibly because she was tipped off and when she did travel the following year she was then granted diplomatic immunity by the British government. Therefore, despite the legal facilitation of the prosecution of alleged perpetrators of war crimes in Palestine under UK law, it appears for now that domestic political considerations will render it difficult for Universal Jurisdiction to be fully implemented. However, unlike the International Criminal Court, Universal Jurisdiction does present a possibility of redress for victims of alleged war crimes committed before June 2014, or where the Gravity threshold isn’t met. Despite their respective limitations, Mr Machover concluded by emphasising the importance of both Universal Jurisdiction and the ICC as peaceful mechanisms for seeking truth and securing justice and accountability in the future. In particular, he noted that as the potential prosecution of cases before the ICC on behalf of Palestinian victims are not likely to be seen for quite some time, Universal Jurisdiction will be of more suitable potential use for victims seeking swifter access to justice.
Alicia Araujo Mendonca – LPHR Executive Committee, and Angelina Nicolaou – LPHR Student Director
4 S1 (1) Geneva Conventions Act 1957
5 S134 Criminal Justice Act 1988