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Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”

The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean hands” manifest by their open defiance of the authority of the ICC and its objectives.

The PNA and its State supporters in the Arab League2 request that OTP accept the PNA’s declaration even though it is a non-state actor and does not fall under the jurisdiction of the court and even though a finding by the OTP that it did have jurisdiction would have far reaching political consequences not only for the Middle East peace process, but also for the credibility of the ICC. Yet, the PNA and the Arab League are marred by “unclean hands” based on their lack of commitment to the rule of law and human rights and their brazen defiance of the Rome Statute and the Court’s authority.

Under the ancient legal principle of nemo auditur propriam turpitudinem allegans or the “clean hands” doctrine, someone who has acted wrongly, either morally or legally, should not be helped by a court when complaining about the actions of someone else.3 The International Court of Justice further explains that one of the fundamental principles governing international relationships “is that a party which disowns or does not fulfill its own obligations cannot be recognized as retaining the rights it claims to derive from the relationship.”4

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The Preamble of the Rome Statute recognizes that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that “such grave crimes threaten the peace, security and well-being of the world.” It reiterates that such crimes “must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” Far from adhering to such principles, however, the PNA and the Arab League are among their foremost violators. According to the NGO Freedom House, no members of the Arab League can be considered “Free” countries. Only four out of the twenty two members of the League are ranked “Partly Free” and the other eighteen members are ranked “Not Free”.5

Systematic and shocking violations of international human rights and humanitarian law occur on a daily basis. These abuses include slavery in Mauritania; gender and religious apartheid in Saudi Arabia; indiscriminate attacks on the civilian populations by the governments of Sudan, Somalia, Yemen, Algeria, Syria, Iraq, as well as by the Palestinian National Authority; incitement to genocide in Sudan, Syria, and by the PNA; and lack of judicial due process and serious limitations to outright denial of the rights of freedom of expression, religion, and assembly by all League members. These practices are as far as can be from upholding the principles and objectives promoted by the Court.

Even more disturbingly, however, the PNA and the Arab League have brazenly and repeatedly defied the authority of the Court regarding the indictment and arrest warrant issued against Sudanese President Omar al-Bashir. The following are just some examples of this outrageous conduct:

  • On March 30, 2009, Bashir attended the Arab League Summit in Doha less than one month after the Court issued a warrant for his arrest. “An independent group called the Doha Center for Media Freedom condemned Mr. Bashir’s participation in the summit meeting and said that it was hypocritical for Arabs to want Israel to be investigated for its actions in Gaza” and then “complain about it if a friendly country is involved.” ”6
  • At the Doha Summit, PNA President Abbas stated, “We must … take a decisive stance of solidarity alongside fraternal Sudan and President Omar al-Bashir.”
  • Arab League Secretary General, Amr Moussa, said that League member states would “continue our efforts to halt the implementation of the warrant.”7

This inexcusable conduct surrounding the Bashir arrest warrant is even more shocking in the case of the PNA. In its declaration, the PNA represented to the Court that it agreed to “recognize[e] the jurisdiction of the Court,” and to “cooperate with the Court without delay or exception, in conformity with Chapter IX of the Statute.” On January 23, 2009, the Registrar of the Court wrote to the PNA acknowledging receipt of its declaration and informed it that its acceptance of the Court’s jurisdiction obligated it to “the provisions of Part 9 and any rules thereunder.”8 Part IX of the Rome Statute mandates many duties on States accepting the Court’s jurisdiction including:

Article 86

General obligation to cooperate

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Article 89

Surrender of persons to the Court

1…States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

The PNA cannot possibly expect to receive the benefit of the Court to open cases against Israelis, when it is engaging in such flagrant disregard for its obligations under the Rome Statute—obligations to which the PNA expressly agreed. This is especially true in this case, where acceptance of the PNA’s declaration is not within the terms of the Rome Statute and would require considerable legal acrobatics to effectuate, greatly implicating the credibility of the Court. The relationship with the Court is reciprocal. There is no reason why the Court should go out of its way to accommodate the demands of a non-State entity, to which it owes no obligation, all the more so when that entity has no respect for the Court’s objectives and authority. The OTP should not be a victim to such blatant manipulation. As Prosecutor Moreno-Ocampo himself has stated,

It is the lack of enforcement of the Court’s decisions which is the real threat to enduring Peace. Allowed to remain at large, the criminals exposed are continuing to threaten the victims, those who took tremendous risks to tell their stories; allowed to remain at large, the criminals ask for immunity under one form or another as a condition to stopping the violence. They threaten to attack more victims. I call this extortion, I call it blackmail. We cannot yield.9

And just one last point in response to the comment of Professor Bassiouni who claims that although the Court would not be able to accept the PNA declaration based on Article 12(3), the Prosecutor could act proprio motu pursuant to Article 15. Article 15 does not grant the Prosecutor unlimited power to open investigations in all circumstances. The wording of Article 15 clearly authorizes the Prosecutor only to “initiate investigations proprio motu” solely on “crimes within the jurisdiction of the Court.” Crimes that fall within the jurisdiction of the Court are laid out in Article 12. If the pre-conditions to jurisdiction specified in Article 12 are not satisfied, there is no jurisdiction and the Prosecutor may not proceed with an investigation. There is simply no basis to interpret the Statute otherwise.

The proprio motu power of the Prosecutor was one of the most hotly contested issues at the Rome Conference. There was a great concern that an unlimited power granted to the Prosecutor “could lead to partiality, manipulation and politicization.”10 As a result, the Rome Statute’s “negotiating States turned to strengthening procedures, reducing the discretionary powers available to the Prosecutor, and setting high admissibility thresholds.” It is simply not true that the Prosecutor was granted the authority to ignore the established bases for jurisdiction in the Rome Statute when exercising his proprio motu powers.

The PNA declaration is part of a decades-long political campaign that has frequently co-opted international legal institutions in order to avoid the difficult work of political compromise. It was in this context that the PNA lodged its declaration with the OTP. The attending publicity surrounding the PNA action and the association of Israel with “war crimes” was the primary goal. Indeed, more than two years after presenting its declaration to Moreno-Ocampo, the PNA has yet to file a finalized submission to the Court arguing its legal position. The legal basis for the PNA’s declaration is flimsy at best and the OTP would be wise to reject it sooner rather than later.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    This comment is an abridged version of a brief filed with the Office of the Prosecutor on October 22, 2010. The full brief is available online. ↩

  2. 2.

    The Arab League met with Prosecutor Moreno-Ocampo on several occasions in support of the PNA declaration. ↩

  3. 3.

    The ’Lectric Law Library, available online. ↩

  4. 4.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding the Security Council Resolution 276, 1971 I.C.J. 16, 46 (Advisory Opinion). ↩

  5. 5.

    See Freedom House. ↩

  6. 6.

    Michael Slackman, et. al., Often Split, Arab Leaders Unite for Sudan’s Chief, New York Times, March 30, 2009, at A5. ↩

  7. 7.

    Slackman, ibid. ↩

  8. 8.

    Letter of Silvana Arbia to Ali Khashan, Jan. 23, 2009. ↩

  9. 9.

    Address by Luis Moreno-Ocampo, International Conference “Building a Future on Peace and Justice,” (June 25, 2007), available online ↩

  10. 10.

    Rod Rastan, “The Power of the Prosecutor in Initiating Investigations,” Symposium on the International Criminal Court, February 3-4, 2007, at 5, available online. ↩

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