Is There a Court for Gaza? : A Test Bench for International Justice

The 'Goldstone Report' of September 2009 started a critical debate at the international level. The Report raised serious allegations of grave violations of international law with regard to the Israeli attack on Gaza of 27 December 2008 - 18 January 2009, amounting to possible war crimes and crimes against humanity. The UN General Assembly and the Human Rights Council, amidst high political pressure, endorsed the Report’s recommendations, calling for prompt and proper investigations to ensure accountability and justice for the victims. Given the lack of proper investigations at the national level, international justice mechanisms are now needed. Indeed, the ICC opened a preliminary examination of the situation but difficulties arose because of the uncertain status of the occupied Palestinian territory. The issue of the existence of a State of Palestine is extremely actual and still unsolved at the UN level. With a foreword by prof. William Schabas, the book collects contributions by renowned international law professors as Eric David, John Dugard, Richard Falk and many other distinguished scholars and lawyers, and brings together for the first time essential documentation on the 'Gaza conflict'. The underlying question, whether there is a court for Gaza, can be seen as a test case for international justice, and shed a light on the role of international institutions in the difficult combination of law and politics that connotes international justice. Useful for all those interested in the Israeli-Palestinian conflict, such as international and criminal law scholars, and human rights and humanitarian organizations. "This volume asks: 'Is There a Court for Gaza? The answer is a resounding yes. Indeed, there are at least two courts capable of addressing the armed conflict in Gaza that took place in December 2008 and January 2009: the International Court of Justice and the International Criminal Court. But neither of them has jurisdiction prima facie. The challenge, then, is to resolve the difficulties in establishing jurisdiction. Once this is done, the merits, which have only partially been addressed in the Goldstone Report, can be litigated. Even then, there are limits to the subject-matter jurisdiction that are likely to confine the judicial debate." From the foreword by prof. William Schabas, Professor of International Law, Middlesex University, London With contributions of: Robert W. Ash; Frank Barat; Jennifer Barnette; Eric David; Gabriele Della Morte; Gilles Devers; John Dugard; Richard Falk; Mireille Fanon Mendes-France; Vera Gowlland-Debbas; Michael G. Kearney; Flavia Lattanzi; Daniel Machover; Chantal Meloni; Daragh Murray; Giuseppe Palmisano; Alain Pellet; John Quigley; François Rigaux; Yaël Ronen; Yuval Shany; Raji Sourani; Gianni Tognini; Sharon Weill; Liesbeth Zegveld The Israeli attack on Gaza of 27 December 2008 - 18 January 2009 (so-called 'Operation Cast Lead). started a critical debate at the international level on the alleged war crimes and possible crimes against humanity committed during and before the operation. In September 2009, the UN Fact Finding Mission on the Gaza Conflict presented its results in what became known as the 'Goldstone Report. The UN General Assembly and the Human Rights Council, amidst high political pressure, endorsed the Reports recommendations, calling for prompt and adequate investigations by both sides to ensure accountability and justice for the victims of the conflict. In case of lack of proper domestic investigations and prosecutions, it was recommended to activate international justice mechanisms. The Prosecutor of the International Criminal Court opened a preliminary examination of the situation, but difficulties arose because of the uncertain status of the occupied Palestinian territory. The issue of the recognition of a State of Palestine is of extreme actuality and is currently under examination before the UN in New York (after President Abbas UN bid for recognition, of September 2011). This book brings together for the first time essential documentation on the legal follow-up to the Gaza conflict and relevant critical literature by renowned international law professors and distinguished scholars and lawyers. The underlying question, whether there is a court for Gaza, can be seen as a test case for international justice, and sheds a light on the role of international institutions in the difficult mixture of law and politics that connotes international justice. The book is a useful tool not only for all parties to any extent involved or interested in the Israeli-Palestinian conflict, but at the same time for all those interested in the issue of accountability for international crimes and in the challenges that international justice is facing. Dr. Chantal Meloni is a researcher in international criminal law at the University of Milan, and an Alexander Von Humboldt scholar at the University of Berlin. She was based in Gaza during 2010, at the Palestinian Centre for Human Rights (PCHR). Dr. Gianni Tognoni, medical doctor, is Secretary-General to the Permanent Peoples' Tribunal, residing in the Lelio Basso Foundation, Rome, Italy. In his position, he is coordinating many research-projects in epidemiology, public health and human rights "This volume asks: 'Is There a Court for Gaza? The answer is a resounding yes. Indeed, there are at least two courts capable of addressing the armed conflict in Gaza that took place in December 2008 and January 2009: the International Court of Justice and the International Criminal Court. But neither of them has jurisdiction prima facie. The challenge, then, is to resolve the difficulties in establishing jurisdiction. Once this is done, the merits, which have only partially been addressed in the Goldstone Report, can be litigated. Even then, there are limits to the subject-matter jurisdiction that are likely to confine the judicial debate."From the foreword by prof. William Schabas, Professor of International Law, Middlesex University, LondonWith contributions of: Robert W. Ash; Frank Barat; Jennifer Barnette; Eric David; Gabriele Della Morte; Gilles Devers; John Dugard; Richard Falk; Mireille Fanon Mendes-France; Vera Gowlland-Debbas; Michael G. Kearney; Flavia Lattanzi; Daniel Machover; Chantal Meloni; Daragh Murray; Giuseppe Palmisano; Alain Pellet; John Quigley; François Rigaux; Yaël Ronen; Yuval Shany; Raji Sourani; Gianni Tognini; Sharon Weill; Liesbeth ZegveldThe Israeli attack on Gaza of 27 December 2008 - 18 January 2009 (so-called 'Operation Cast Lead). started a critical debate at the international level on the alleged war crimes and possible crimes against humanity committed during and before the operation. In September 2009, the UN Fact Finding Mission on the Gaza Conflict presented its results in what became known as the 'Goldstone Report. The UN General Assembly and the Human Rights Council, amidst high political pressure, endorsed the Reports recommendations, calling for prompt and adequate investigations by both sides to ensure accountability and justice for the victims of the conflict. In case of lack of proper domestic investigations and prosecutions, it was recommended to activate international justice mechanisms. The Pr osecutor of the International Criminal Court opened a preliminary examination of the situation, but difficulties arose because of the uncertain status of the occupied Palestinian territory. The issue of the recognition of a State of Palestine is of extreme actuality and is currently under examination before the UN in New York (after President Abbas UN bid for recognition, of September 2011). This book brings together for the first time essential documentation on the legal follow-up to the Gaza conflict and relevant critical literature by renowned international law professors and distinguished scholars and lawyers. The underlying question, whether there is a court for Gaza, can be seen as a test case for international justice, and sheds a light on the role of international institutions in the difficult mixture of law and politics that connotes international justice. The book is a useful tool not only for all parties to any extent involved or interested in the Israeli-Palestinian conflict, but at the same time for all those interested in the issue of accountability for international crimes and in the challenges that international justice is facing. Dr. Chantal Meloni is a researcher in international criminal law at the University of Milan, and an Alexander Von Humboldt scholar at the University of Berlin. She was based in Gaza during 2010, at the Palestinian Centre for Human Rights (PCHR). Dr. Gianni Tognoni, medical doctor, is Secretary-General to the Permanent Peoples' Tribunal, residing in the Lelio Basso Foundation, Rome, Italy. In his position, he is coordinating many research-projects in epidemiology, public health and human rights Introduction / Chantal Meloni and Gianni Tognoni Part 1. International Conference 'Is There a Court for Gaza?' 22 May 2009, Rome Selected Materials from the International Conference 'Is There a Court for Gaza?' 22 May 2009, Lelio Basso International Foundation, Rome / Chantal Meloni and Gianni Tognoni Part 2. The UN Fact Finding Mission on the Gaza Conflict and Follow-up at the International and Domestic Level The Goldstone Report and the Goldstone Retreat: Truths Told by Law and Reviled by Geopolitics / Richard Falk The Follow up to the Goldstone Report and Its Legal Impact in Israel and Beyond / Sharon Weill Initial Reactions to the Goldstone Report and Reflections on Israeli Accountability / Jennifer Barnette Investigating the Investigations : a Comment on the UN Committee of Experts Monitoring of the 'Goldstone Process' / Daragh Murray The Importance of Fact-Finding Missions Under International Humanitarian Law / Liesbeth Zegveld Part 3. Gaza and the International Criminal Court The Legal Debate on the Admissibility of the Palestinian Declaration pursuant to Article 12(3) of the Rome Statute Why Statehood Now : a Reflection on the ICC's Impact on Palestine's Engagement with International Law / Michael G. Kearney The Effects of Palestine's Recognition of the International Criminal Court's Jurisdiction / Allain Pellet The Palestine Declaration to the International Criminal Court : the Statehood Issue / John Quigley. Is Palestine a "State"? A Response to Professor John Quigley's Article, "The Palestine Declaration to the International Criminal Court: The Statehood Issue" / Robert Weston Ash Palestine Statehood : a Rejoinder to Professor Robert Weston Ash / John Quigley ICC Jurisdiction Over Acts Committed in the Gaza Strip : Article 12(3) of the ICC Statute and Non-State Entities / Yaèel Ronen In Defence of Functional Interpretation of Article 12(3): A Response to Yaèel Ronen / Yuval Shany Note on the Legal Effects of Palestine's Declaration Under Article 12(3) of the ICC Statute / Vera Gowlland-Debbas Part 4. Non Judicial Responses : the Russell Tribunal on Palestine The Russell Tribunal on Palestine / Frank Barat and Daniel Machover International (In)Justice and Palestine / John Dugard. La 4e de couverture indique : "The Israeli attack on Gaza of 27 December 2008 - 18 January 2009 (so-called 'Operation Cast Lead'). started a critical debate at the international level on the alleged war crimes and possible crimes against humanity committed during and before the operation. In September 2009, the UN Fact Finding Mission on the Gaza Conflict presented its results in what became known as the 'Goldstone Report'. The UN General Assembly and the Human Rights Council, amidst high political pressure, endorsed the Report's recommendations, calling for prompt and adequate investigations by both sides to ensure accountability and justice for the victims of the conflict. In case of lack of proper domestic investigations and prosecutions, it was recommended to activate international justice mechanisms. The Prosecutor of the International Criminal Court opened a preliminary examination of the situation, but difficulties arose because of the uncertain status of the occupied Palestinian territory. The issue of the recognition of a State of Palestine is of extreme actuality and is currently under examination before the UN in New York (after President Abbas' UN bid for recognition, of September 2011). This book brings together for the first time essential documentation on the legal follow-up to the Gaza conflict and relevant critical literature by renowned international law professors and distinguished scholars and lawyers. The underlying question, whether there is a court for Gaza, can be seen as a test case for international justice, and sheds a light on the role of international institutions in the difficult mixture of law and politics that connotes international justice. The book is a useful tool not only for all parties to any extent involved or interested in the Israeli-Palestinian conflict, but at the same time for all those interested in the issue of accountability for international crimes and in the challenges that international justice is facing." Front Matter....Pages i-xix Front Matter....Pages 11-11 Introduction....Pages 1-9 Selected Materials from the International Conference ′Is There a Court for Gaza?′ 22 May 2009, Lelio Basso International Foundation, Rome....Pages 13-80 Front Matter....Pages 81-81 The Goldstone Report and the Goldstone Retreat: Truths Told by Law and Reviled by Geopolitics....Pages 83-104 The Follow up to the Goldstone Report and Its Legal Impact in Israel and Beyond....Pages 105-121 Initial Reactions to the Goldstone Report and Reflections on Israeli Accountability....Pages 123-143 Investigating the Investigations: A Comment on the UN Committee of Experts Monitoring of the ‘Goldstone Process’....Pages 145-160 The Importance of Fact-Finding Missions Under International Humanitarian Law....Pages 161-167 Front Matter....Pages 389-389 Why Statehood Now: A Reflection on the ICC’s Impact on Palestine’s Engagement with International Law....Pages 391-408 The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction....Pages 409-428 The Palestine Declaration to the International Criminal Court: The Statehood Issue....Pages 429-440 Is Palestine a “State”? A Response to Professor John Quigley’s Article, “The Palestine Declaration to the International Criminal Court: The Statehood Issue”....Pages 441-460 Palestine Statehood: A Rejoinder to Professor Robert Weston Ash....Pages 461-468 ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities....Pages 469-495 In Defence of Functional Interpretation of Article 12(3): A Response to Yaël Ronen....Pages 497-512 Note on the Legal Effects of Palestine’s Declaration Under Article 12(3) of the ICC Statute....Pages 513-524 Front Matter....Pages 525-525 The Russell Tribunal on Palestine....Pages 527-577 Front Matter....Pages 579-579 International (In)Justice and Palestine....Pages 581-594 Back Matter....Pages 169-387 This book examines the difficult combination of law and politics in international justice, in particular the uncertain status of Palestine at the UN level. It tackles the legal issue of whether international justice mechanisms can play a role in Gaza