April 29, 2020,
43 Canadian organizations joined with183 Palestinian, Regional and International Human Rights Organisations Called on the International Criminal Court (ICC) – Time to Investigate Crimes in Palestine, Time for Justice.
Canadian civil society has spoken to the ICC, but the Canadian government has taken position in a letter to the ICC that it does not have jurisdiction over Palestine, and in a veiled threat, reminded the ICC of Canada’s financial contribution.
Together these organisations emphatically supported the Prosecutor’s finding that there is a reasonable basis to believe that war crimes and crimes against humanity have been and are being committed, that the ICC can properly exercise its jurisdiction over the entire territory of Palestine, and fully support without further undue delay, the opening of an ICC investigation into crimes committed in the West Bank including East Jerusalem and the Gaza Strip.
On 20 December 2019, following almost five years of preliminary examination, the Prosecutor of the International Criminal Court (ICC) submitted a request to the Pre-Trial Chamber (PTC) for a ruling on the Court’s territorial jurisdiction in Palestine indicating that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip” and that she had “identified potential cases arising from the situation which would be admissible”. Further, the Prosecutor was satisfied that the Court’s territorial jurisdiction extended to the “Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza”.
On 28 January 2020, the ICC Pre-Trial Chamber invited amicus curiae submissions on the question of jurisdiction to be submitted to the Court. This led to the submission of 43 amicus curiae briefs, including seven from State parties to the Rome Statute (Germany, Austria, Australia, Brazil, Czech Republic, Hungary and Uganda) arguing against territorial jurisdiction and denying that the ICC can exercise jurisdiction over Palestine.
Although Canada was not among those seven submitting a brief, the Canadian government did take the position in a letter that the ICC did not have jurisdiction over Palestine and at the same time, in a veiled threat, reminded the ICC of Canada’s financial contribution.
On February 26, 2020, the Canadian Jewish News revealed that the Canadian government had sent a letter to the ICC on February 14 asserting that because Palestine is not recognized as a full state, the court has no jurisdiction to pursue investigations. As indicated in the Palestine Chronicle Netanyahu praised only two days after the Canadian letter what he called “efforts” by “friendly states” to prevent the ICC from launching an investigation.
On February 29, 2020, the Jerusalem Post reported “Canada asked the International Criminal Court not hold hearings regarding Israeli war crimes lawsuits, its Foreign Ministry said.” Canada’s Foreign Ministry indicated via email to the Jerusalem Post that:
Canada’s longstanding position is that it does not recognize a Palestinian state and therefore does not recognize the accession of such a state to international treaties, including the Rome Statute. In the absence of a Palestinian state, it is Canada’s view that the Court does not have jurisdiction in this matter under international law.
On March 12, 2020, Amnesty International Canada called for the federal government to support the prosecution by the International Criminal Court of Israel’s alleged war crimes in the Palestinian territories. This open letter was signed by Alex Neve, secretary general of Amnesty International Canada’s English branch, and Michael Lynk, the United Nations special rapporteur for the situation of human rights in the Palestinian territory occupied since 1967.
In this open letter, Neve and Lynk supported a full investigation by the ICC “to break the cycle of impunity for war crimes, and paves the way for the many thousands who have suffered as a result of these crimes to finally achieve long overdue access to truth, justice and reparations.” They indicated “It is our belief that, as long as Israel believes that it enjoys impunity from its violations of international law, it will continue to deepen its five-decade-long occupation and, in the near future, seek to illegally annex significant portions of the West Bank.”
It is an embarrassment that the Canadian government has taken this stance. Beyond this, Canada’s approach means it has avoided having to face the legal accountability of filing an amicus curiae brief.
We join in naming the culture of impunity which has prevailed for some 52 years in the occupied Palestinian territory (OPT), and insist the perpetrators of war crimes and crimes against humanity committed in the OPT must be held accountable at the International Criminal Court.
The Canadian government has accountability through both international and domestic law to take steps to ensure Israel does not commit war crimes and is held accountable for the war crimes it does commit.
International Law: Under Article 1 of the Fourth Geneva Convention, all high signatories including Canada, are required to take actions to ensure that violations of the Fourth Geneva Convention do not occur under any circumstance.
Domestic Law: Canada ratified the Rome Statute in 1998 and enacted the Statute through the War Crimes and Crimes Against Humanity Act in 2000.
The December 13, 2019 mandate letter from Prime Minister Trudeau indicates to Minister Champagne that he is to “reinforce institutional institutions like the International Criminal Court” and ensure “additional resources to promote and uphold international law.” The letter on February 14, 2020 to the ICC from the Canadian government is counter to this mandate.
The call for organizations to sign onto:
We stand with the 43 organizations that have shown their support directly in the letter sent to the International Criminal Court.
We expect Canada to be accountable to our responsibility under international law and follow our own domestic law.
Accordingly, we join with Amnesty International Canada and urge Canada:
- To support the Prosecutor’s motion before the Pre Trial Chamber that the “territory” over which the ICC may exercise its jurisdiction under the Rome Statute for the purpose of formally investigating the purported commission of war crimes in this situation comprises the West Bank, including East Jerusalem, and Gaza;
- Should the Pre-Trial Chamber rule in favour of the Prosecutor’s motion on territorial jurisdiction, to support the work of the Prosecutor in conducting the formal investigation into the purported war crimes; and
- Not to take any steps at the ICC or any other international forum that would oppose the work of the Prosecutor in this regard.
And beyond this, we urge the government of Canada to:
- Hold Israel accountable to an end to all breaches of international humanitarian law and international human rights law, doing so through diplomatic and economic measures, including the implementation of sanctions under the Special Economic Measures Act, and the implementation of an arms embargo