Open letter: Canada must support International Criminal Court decision to investigate war crimes in Palestine

The Right Honourable Justin Trudeau                      The Honourable Francois-Philippe Champagne
Prime Minister of Canada                                         Minister of Foreign Affairs
Office of the Prime Minister                                     125 Sussex Drive
80 Wellington Street                                                Ottawa, Ontario
Ottawa, Ontario                                                       K1A 0G2              
K1A 0A2
Re:         Decision of the Prosecutor, International Criminal Court Respecting the Situation in the Occupied Palestinian Territory
Dear Prime Minister Trudeau and Minister Champagne,
We write this Open Letter to you with respect to recent developments at the International Criminal Court (ICC) respecting the situation in the occupied Palestinian territory.
As Canada’s leading representatives on the international stage, you have been important supporters of the indispensable work of the Court. Indeed, one of Minister Champagne’s primary tasks, as per the recent mandate letter from the Prime Minister, is to: “Reinforce institutional institutions like the International Criminal Court…” This continues an intrepid Canadian tradition, beginning with its leadership during the preparatory work for the Court in the 1990s, and culminating in Canada’s ratification of the Rome Statute in 1998 and its domestic enactment of the Statute through the War Crimes and Crimes Against Humanity Act in 2000. Since then, Canada has provided funding, skilled legal professionals and political support for the Court, all of which is critical to the goal of ending criminal impunity and ensuring accountability for the most serious crimes committed on the international stage.   
As you will recall, on 20 December 2019, the Prosecutor of the ICC, Ms. Fatou Bensouda, announced that she was satisfied there was a reasonable basis to proceed with an investigation into the possible commission of war crimes in Palestine – the West Bank, including East Jerusalem, and Gaza – from 2014 onward. At the same time, the Prosecutor stated that she had decided to refer a preliminary issue of jurisdiction – seeking a ruling on the territorial scope of the ICC’s jurisdiction with respect to the situation – for a speedy ruling by the Pre-Trial Chamber at the ICC.
In her announcement, the Prosecutor stated that, in her view, there were at least four areas of investigation by her Office into the possible commission of war crimes:

Israel’s conduct of the Gaza war during the summer of 2014 (Operation Protective Edge);
The 240 Israeli settlements in East Jerusalem and the West Bank;
The lethal shooting by the Israeli military of Palestinian demonstrators at the Gaza frontier in 2018-19; and
The indiscriminate shooting of rockets by Palestinian armed groups into Israel.  

Amnesty International and the Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967 welcome the announcement by the Prosecutor. We believe that the advancement of the complaints respecting war crimes in the occupied Palestinian territory to a full investigation stage at the ICC offers a crucial opportunity 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. Accordingly, we are writing you to urge the Government of Canada to support the decisions of the Prosecutor respecting this matter.
The Israeli-Palestinian conflict has been marred by a strong streak of impunity and a deplorable lack of justice. Without in any way overlooking or excusing breaches of human rights standards by Palestinians, the primary responsibility for the continuation of the 52 year old occupation, and its many gross violations of human rights, rests with Israel, the occupying power and the much stronger party to the conflict. In defiance of the international community’s express direction, Israel has:

illegally annexed East Jerusalem,[1]
built 240 illegal settlements, and settled more than 650,000 settlers, in East Jerusalem and the West Bank,[2]
refused to end the occupation and recognize Palestinian self-determination on the territory occupied in 1967,[3] and
continued to construct a wall that lies primarily, and illegally, within the occupied Palestinian territory.[4]

The international community has frequently criticized Israel’s conduct of the occupation, but only rarely has it sought consequences for Israel’s ongoing defiance of its direction which might reverse the ominous trends on the ground that are making a two-state solution that has been promoted by Canada and other governments increasingly improbable.  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. This is the impact of impunity wherever it becomes the norm.
A number of independent international commissions of inquiry, established by organs of the United Nations over the past decade, have affirmed the lack of accountability on the part of Israel. For example:

The 2009 UN Human Rights Council independent report into the 2008-09 Gaza conflict (Operation Cast Lead) stated that: “justice and respect for the rule of law are the indispensable basis for peace. The prolonged situation of impunity has created a justice crisis in the Occupied Palestinian Territory that warrants action.”[5]
The 2013 UN Human Rights Council independent report into the implications of the Israeli settlements called upon Israel: “to ensure full accountability for all violations…and to put an end to the policy of impunity.”[6]
The 2015 UN Human Rights Council independent report into the 2014 Gaza conflict (Operation Protective Edge) expressed concerned that: “impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces…Israel must break with its recent lamentable track record in holding wrongdoers accountable…”[7]
The 2019 UN Human Rights Council independent report into the lethal shootings in 2018 at the Gaza frontier concluded that: “To date, the Government of Israel has consistently failed to meaningfully investigate and prosecute commanders and soldiers for crimes and violations…Scarce accountability measures arising out of Operations Cast Lead (2008-09) and Protective Edge (2014)…cast doubt over the State’s willingness to scrutinize the actions of military and civilian leadership….”[8]

The ICC is one of the few remaining international forums where the conduct of Israeli decision-makers regarding its illegal actions under international human rights and humanitarian law might be held meaningfully accountable. If the investigations into purported war crimes within the occupied Palestinian territory that would be conducted by the Prosecutor result in a fundamental rethinking by the Israeli political and military leadership of its entrenched occupation, then this process at the ICC would have a decisive and positive impact on breaking the conflict’s logjam where resolutions, peace conferences and diplomatic statements have failed.
As such, we profoundly disagree with the statements made by Israeli Prime Minister Benjamin Netanyahu in his 20 December 2019 letter to Prime Minister Trudeau. In his letter, he stated that the Prosecutor’s decision was “unfounded and outrageous”, and had turned the ICC into a “political tool to delegitimize the state of Israel”. Prime Minister Netanyahu said that the ICC had no jurisdiction to investigate the complaints of war crimes against Israel, and that the Prosecutor’s investigation will perpetuate the Israeli-Palestinian conflict.
Impunity and a deep disregard by Israel for international law and the clear direction of the international community over several decades have played a substantive role in perpetuating the Israeli-Palestinian conflict. Seeking justice and accountability at the international level for victims and survivors of grave human rights violations cannot be seriously regarded as undermining the path to peace.
Accordingly, we 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.

On a related matter, may we say that we appreciate the UN General Assembly vote by Canada in December 2019 in support of Palestinian self-determination. This resolution recognizes both the strong international consensus on this issue as well as the importance of international law as the indispensable framework for a just and durable peace between Israelis and Palestinians.
Upholding the integrity and independence of this ICC investigation would be another strong indication of Canada’s regard for the importance of those international legal standards, notably in the areas of international human rights, international humanitarian law and international criminal law. 
We would welcome the opportunity to met with you at your early convenience to discuss our concerns and recommendations.

Michael Lynk                                                      Alex Neve                                          
United Nations Special Rapporteur           Secretary General
for the situation of human rights               Amnesty International Canada
in the Palestinian territory                            (English branch)
occupied since 1967 

[1] UNSC Res. 2334 (23 December 2016)

[2] UNSC Res. 2334 (23 December 2016).  

[3] UNSC Res. 476 (30 June 1980).

[4] Wall Advisory Opinion, ICJ (9 July 2004).

[5] A/HRC/12/48, para. 1958.

[6] A/HRC/22/63, para. 114.

[7] A/HRC/29/CRP.4, para. 76.

[8] A/HRC/40/74, para. 111.