Two different views on Gaza justice
John Dugard, a South African professor of law, argues that accepting the Palestinians’ request to investigate Israeli actions in Gaza would help advance international justice.
[...] Several factors favor an expansive approach.
First, there is the fact that the Palestinian entity has been widely recognized as a state and meets most of the requirements of statehood — population, territory, government and ability to conduct international relations. [...]
Second, the Palestinian National Authority has a judicial system more developed than that of many members of the I.C.C., which would allow it to comply with the cooperative obligations contained in the statute.
Third, the purpose of the Rome Statute, as proclaimed in its preamble, is to punish those who commit international crimes and to prevent impunity. If an entity claiming to be a state, and recognized as such by a majority of states, makes a declaration under the I.C.C. statute that seeks to give effect to such goals, the I.C.C. should accept it as a state for the purpose of the I.C.C. statute. [...]
Moreover, Dugard, who was also chairman of the Independent Fact Finding Committee established by the Arab League to investigate violations of humanitarian law during Israel’s military operation in Gaza in 2008, argues further that the political cost of not taking the case seems to outweigh the perceived challenges of moving forward with an ICC investigation. Launching an investigation would be an “opportunity to show that [the Court] is not infected by a double standard and that it is willing to take action against international crimes committed outside Africa,” he argues. More here.
George Fletcher, a professor of international jurisprudence at Columbia University, presents an opposing view to the “expansive approach” put forth by Dugard, refuting ICC jurisdiction over the alleged crimes committed during “Operation Cast Lead” for both legal and political reasons:
The legal reasons for the I.C.C. not to get involved are obvious. The statute requires a declaration by a “state” to accept jurisdiction. Neither Gaza nor the Palestinian National Authority is anywhere near the status of a state. But even if the prosecutor ignored this “technicality,” another deeper consideration should prevent him from inquiring further.
Under the accepted reading of the Rome Statute, acceptance of the jurisdiction of the I.C.C. with respect to the “crime” implies an investigation of both sides and their contribution to the occurrence of criminal offenses. It would be impossible to investigate alleged Israeli crimes, such as shooting at civilian targets, without also investigating alleged Palestinian crimes, such as using civilians as human shields and firing rocket indiscriminately at civilian populations.
No one knows how broadly the “crime” in question should be construed. It could conceivably extend in time to include the crime Palestinians have committed by using suicide bombers to kill innocent Israeli civilians on dozens of occasions in past years. [...]
More here.
