NEWS & VIEWS
Israel / Palestine
News Update
24 July 2021
Letter to ICC Prosecutor: Excuse Yourself from Investigating and Prosecuting Alleged Israeli War Crimes in Palestine
Today, Grotius - Center for International Law and Human Rights sent a letter to the International Criminal Court's Prosecutor Mr. Karim Khan, QC requesting him to excuse himself from overseeing the investigation and prosecution of alleged Israeli war crimes in Palestine given the British government's clear opposition to such legal effort and its commitment in this regard to Israel's supporters in Britain. The following is the text of the letter:
24 July 2021
Mr. Karim Khan, QC
Prosecutor, International Criminal Court
Oude Waalsdorperweg 10
2597 AK, The Hague
The Netherlands
Via e-mail: otp.informationdesk@icc-cpi.int
Dear Sir,
Re: Prosecutorial Independence – The Case of Palestine
1. I am approaching you with serious concerns about your independent judgment in relation to investigating and prosecuting alleged crimes within the International Criminal Court’s jurisdiction committed by the Israeli authorities with respect to the Palestine situation.
2. On 16 June 2021 you were sworn in as the International Criminal Court’s Prosecutor. The Court’s former Prosecutor Ms. Fatou Bensouda declared on 3 March 2021 that she will initiate an investigation in relation to crimes within the Court’s jurisdiction that have allegedly been committed in Palestine since 13 June 2014.[1] Her declaration is pursuant to Pre-Trial Chamber I jurisdictional decision of 5 February 2021.[2]
3. On 9 April 2021 British Prime Minister Boris Johnson wrote a letter to the British political group Conservative Friends of Israel in which he asserted that Britain opposes the International Criminal Court’s jurisdiction regarding the situation in Palestine. Johnson underscored in his letter that:
The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. This was a key priority for the UK. Demonstrating our enduring commitment to strengthening the court and serving international justice.
…
We oppose ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state. This investigation gives the impression of being a partial and prejudicial attack on a friend and ally of the UK’s.
I hope the discussion with the Foreign Secretary helped to assuage your concerns around the UK’s position, and I note his offer to speak with the CFI to explain the UK position in detail.
4. Johnson’s letter is a clear political statement on the part of the British government. It requires, as a minimum, that you recuse yourself from overseeing any investigation and prosecution relating to Palestine. Johnson has boldly identified the British government with the Office of the Prosecutor. It is not sufficient to rely on alleged traditions of British adjudication to disregard the British government’s unmistakable political motivation to interfere with international legal proceedings.[3]
5. The Prosecutor’s obligation is to act independently as a separate organ in the Court. Article 42 of the ICC Statute stipulates this onus that includes the duty not “to seek or act on instructions from any external source.” Rules 34 and 35 of the Court’s Rules of Procedure and Evidence require you to request the Presidency to be excused from managing any aspect relating to investigating and prosecuting crimes in the case of Palestine.
6. Failure to seek recusal from the Court’s Presidency will result in delegitimizing your conduct regarding the investigation and prosecution of crimes committed in Palestine by the Israeli authorities. It is in your professional best interest and the Court’s that you excuse yourself.
Respectfully
Marwan Dalal
Executive Director
Attached:
British Prime Minister Boris Johnson’s Letter of 9 April 2021 to Friends of Israel political group.
[1] Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine, 3 March 2001, https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statement-investigation-palestine.
[2] ICC-01/18, Decision on the ’Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021, https://www.icc-cpi.int/CourtRecords/CR2021_01165.PDF
[3] In addition, the political climate in Britain is extremely hostile to rights of Palestinians and consistently advances the Israeli version of events. Should the Prosecutor demand evidence of this assessment, I would delightfully present it to him.
News Update
1 May 2021
I Don’t Want to Talk About It: Boris Johnson’s Declaration on Prosecuting Israel in the Hague
On 9 April 2021 British Prime Minister Boris Johnson wrote a letter to the British group Conservative Friends of Israel in which he asserted that Britain opposes the International Criminal Court’s (ICC) jurisdiction regarding the situation in Palestine. On 5 February 2021 the ICC’s Pre-Trial Chamber I decided in a majority opinion that it has jurisdiction to investigate alleged serious violations of international law committed by Israel in the Palestinian territories occupied in 1967 - Gaza, West Bank, and East Jerusalem. The Court’s Prosecution has identified three issues to be under investigation: the 2014 Israeli assault against Gaza, Israel’s brutal suppression of demonstrations at the Gaza border, and Israel’s construction of settlements.
The letter is a clear political statement on the part of the British government. It requires, as a minimum, that the newly appointed Prosecutor Karim Khan recuse himself from overseeing any investigation and prosecution relating to Palestine. Johnson has boldly identified the British government with Khan and another appointment to the same court. It is not sufficient to rely on alleged traditions of British adjudication to disregard the British government’s unmistakable political motivation to interfere with international legal proceedings. According to Boris Johnson’s letter:
The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. This was a key priority for the UK. Demonstrating our enduring commitment to strengthening the court and serving international justice.
…
We oppose ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state. This investigation gives the impression of being a partial and prejudicial attack on a friend and ally of the UK’s.
I hope the discussion with the Foreign Secretary helped to assuage your concerns around the UK’s position, and I note his offer to speak with the CFI to explain the UK position in detail.
Johnson understands international justice as inapplicable to Britain’s allies, and consequently is unreachable to Britain itself. This is a dangerous political and diplomatic approach that undermines the credibility of international legal institutions. The scope of its implications are broader than the ICC and cover the work of other international courts such as the Special Tribunal for Lebanon which works on issues with geopolitical significance for both Israel and Britain. The Prosecution in the Special Tribunal for Lebanon includes two British individuals in senior positions (Alexander Milne and Nigel Povaos), who have relied on British experts in the Tribunal's primary case. We have started to critically analyze the performance of this Tribunal.
Israel’s violations of Palestinians' basic human rights and perpetrating war crimes against them has a long history. Formed as an exclusivist Jewish states after ethnically cleansing the majority of Palestine’s native inhabitants,[1] the country’s apartheid regime and nature[2] have exasperated its severe violations of international law. Britain’s insistence to maintain its tradition of shielding Israel from accountability is illegal and will result in significant damage to the country’s purported righteous self-image as a rule of law nation.
Karim Khan Boris Johnson (together with the UK's military leadership)
[1] Ilan Pappe, The Ethnic Cleansing of Palestine, (One World, 2006); Rashid Khalidi, "1948 and after in Palestine: Universal Themes?" 40(4) Critical Inquiry, pp.314 - 331 (2014).
[2] John Dugard, "Why aren't Europeans calling Israel an apartheid state?", Al-Jazeera, 17 April 2019; John Dugard & John Reynolds, "Apartheid, International Law, and the Palestinian Occupied Territory", 24(3) European Journal of Int'l Law, pp.867- 913 (2013); Richard Falk & Virginia Tilly, Israeli Practices Towards the Palestinian People and the Question of Apartheid, U.N. ESCWA, 2017; Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, 2021. The crime of Apartheid is prosecutable pursuant to the ICC's Statute.
Boris Jonson's letter to Stephen Crabb MP, Lord Pickles, and Lord Polak of Conservative Friends of Israel British political group dated 9 April 2021.
