THE PRINCIPLE AND PRACTICE OF UNIVERSAL JURISDICTION: PCHR’s Work in the occupied Palestinian territory January 2010 Palestinian Centre for Human Rights (PCHR) The Principle and Practice of Universal Jurisdiction: PCHR’s Work in the occupied Palestinian territory T A B L E O F C ON T EN T S EXECUTIVE SUMMARY 7 1. INTRODUCTION 11 1.1. Applicable legal framework 14 2. TRADITIONAL JURISDICTION AND THE EVOLUTION OF UNIVERSAL JURISDICTION 15 2.1. Jurisdictional bases 15 2.2. The evolution of universal jurisdiction 16 2.3. The exercise of universal jurisdiction 18 2.4. Universal jurisdiction in the modern era 18 2.4.1. Treaty based universal jurisdiction obligations 18 2.4.2. Jurisprudence relating to universal jurisdiction in the modern era 20 2.4.3. Individual criminal responsibility and command responsibility 24 2.4.4. Immunity 26 2.4.5. Summary 27 3 3. THE MOTIVATIONS UNDERLYING INTERNATIONAL CRIMINAL RESPONSIBILITY AND THE PURSUIT OF UNIVERSAL JURISDICTION 29 3.1. Impunity 29 3.2. Deterrence 31 4. AN EXAMINATION OF SELECT INTERNATIONAL CRIMES 33 4.1. The fundamental principles of IHL 33 4.1.1. The principle of distinction 33 4.1.2. The direct targeting civilians or civilian objects 37 4.1.3 Wilful killing 39 4.1.4. Extensive destruction of property 40 4.1.5. Indiscriminate attacks 42 4.2. The prohibition of torture 46 4.2.1. The prohibition of torture in international law 46 4.2.2. The definition of torture 47 4.2.3. The elements of the crime of torture 49 4.3. Crimes against humanity 50 4.3.1. An attack must be directed against a civilian population 52 4.3.2. Widespread or systematic 53 4.3.3. Knowledge of the attack 54 4.3.4. The underlying offences 55 5. EXAMPLES OF VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED DURING THE OFFENSIVE ON THE GAZA STRIP 57 5.1. Wilful killing (murder) of civilians 57 5.1.1. Majeda and Raya Abu Hajjaj, 4 January 2009 58 5.1.2. Fouad and Farah Al-Helu, 4 January 2009 58 5.1.3. Shaza and Isra Al-Habash, 4 January 2009 59 5.1.4. Al-Dayah, 6 January 2009 60 5.1.5. ‘Roof knocking’ 61 5.1.6. The illegal classification of civilian police and governmental buildings as legitimate military objectives 62 5.2. Indiscriminate attacks 67 5.2.1. The use of atillery and mortars 68 5.2.2. Abu Halima, 4 January 2009 69 5.2.3. Al-Fakhoura, 6 January 2009 70 5.2.4. The use of white phosphorous 72 5.2.5. UNRWA Field Office Compound, 15 January 2009 75 5.2.6. UNRWA Beit Lahia School, 17 January 2009 77 5.2.7. The use of flechettes 78 PCHR’s Work in the occupied Palestinian5.2.8. territoryAbdul-Dayem, 5 January 2009 79 5.3. Extensive destruction not justified by 4 military necessity 79 5.4. Extensive destruction of agricultural land 83 5.5. Crimes against humanity 85 6. INTERNATIONAL OBLIGATIONS RELATING TO THE ADMINISTRATION OF JUSTICE 89 7. GENUINELY UNWILLING OR UNABLE: LEGAL MECHANISMS AVAILABLE TO PALESTINIAN VICTIMS 95 7.1. The oPt 95 7.2. The State of Israel 96 7.2.1. The perceived status of the Gaza Strip and the classification of its civilian population as ‘Enemy Aliens’ 97 7.2.2. Israeli legal and judicial mechanisms 99 7.2.3. Investigative mechanisms 102 7.2.4. The opening of criminal investigations 104 7.2.5. The opening of civil investigations 105 7.2.6. Prompt and timely remedy 105 7.2.7. A note on ‘Operation Cast Lead’ 107 7.2.8. Summary 109 7.3. International legal remedies 111 The Principle and Practice of Universal Jurisdiction: 8. REVIEW of PCHR’S UNIVERSAL JURISDICTION CASEWORK 113 8.1. The alleged crimes 113 8.1.1. Targeted assassination 113 8.1.2. House demolition 115 8.1.3. The Al-Daraj attack 116 8.2. Case: Shaul Mofaz in the U.K. 117 8.2.1. Synopsis 117 8.2.2. The defendant and the alleged crimes 117 8.2.3. Outcome 117 8.3. Case: Ben-Elizer Et Al in Switzerland 118 8.3.1. Synopsis 118 8.3.2. The defendants 118 8.3.3. The Alleged Crimes 118 8.3.4. Outcome 119 8.4. Case: Caterpillar Incorporated in the U.S. 119 8.4.1. Synopsis 119 8.4.2. The Defendant 119 8.4.3. Outcome 120 8.5. Case: Doron Almog in the U.K. 121 8.5.1. Synopsis 121 8.5.2. The defendant and the alleged crimes 121 8.5.3. The events surrounding the attempted arrest 122 8.5.4. Outcome 122 8.6. Case: Avraham Dichter in the U.S. 123 8.6.1. Synopsis 123 8.6.2. The Defendant 123 5 8.6.3. Outcome 124 8.7. Case: Moshe Yaalon in New Zealand 125 8.7.1. Synopsis 125 8.7.2. Defendant and alleged crimes 125 8.7.3. Events surrounding the attempted arrest 125 8.8. Case: Ami Ayalon in the Netherlands 126 8.8.1. Synopsis 126 8.8.2. Defendant and alleged crimes 126 8.8.3. Events surrounding the attempted arrest 127 8.8.4. Outcome 128 8.9. Case: Benjamin Ben-Eliezer et al in Spain 129 8.9.1. Synopsis 129 8.9.2. The defendants and the alleged crime 129 8.9.3. Outcome 130 8.10. Summary 131 9. PCHR’S CONFERENCES ON UNIVERSAL JURISDICTION 133 9.1. Conference: Malaga 133 9.1.1. Synopsis 133 9.2. Conference: Cairo 135 9.2.1. Synopsis 135 9.2.2. Follow on from Cairo 136 9.3. Conference: Madrid 137 9.3.1. Synopsis 137 9.4. Conference: London 138 9.4.1. Synopsis 138 10. CONCLUSION 141 Annex 1: Gonzalo Boye: Impunity and prosecution of Israeli war criminals: a view of the Spanish jrisdiction 145 Annex 2: Daniel Machover: Expanding universal jurisdiction and the principle of universal jurisdiction from a British perspective 153 PCHR’s Work in the occupied Palestinian territory 6 The Principle and Practice of Universal Jurisdiction: E XEC ut I V E Su MMARY ‘The Principle and Practice of Universal Jurisdiction’ 7 is released by the Palestinian Centre for Human Rights (PCHR) at a time when world attention is focused on the Gaza Strip. Israel’s conduct of hostilities during ‘Operation Cast Lead’ (27 December 2008 – 18 January 2009) provoked global shock and outrage, and drew international condemnation, while the subsequent report of the UN Fact Finding Mission (the Goldstone Report) focused international attention. PCHR and numerous other human rights organizations have documented and publicized Israel’s alleged violations of international humanitarian law (IHL); many of which amount to war crimes and grave breaches of the Geneva Conventions. The widespread and systematic nature of these violations raise suspicion that Israel committed crimes against humanity in the Gaza Strip; an allegation not lightly made. Yet despite this level of international attention, the State of Israel and suspected Israeli war criminals have not been held to account. Regrettably, this lack of accountability, and the resultant climate of impunity, has been a long- standing feature of Israel’s occupation of Palestinian territory. Since the occupation began in 1967, neither the State of Israel, nor individuals suspected of committing war crimes, have been brought before a court and prosecuted in accordance with the norms of international law. Israel has been allowed to act as a State above the law; a reality illustrated by the reaction of powerful States – lead by the U.S. – to the publication of the Goldstone Report. PCHR firmly believe that this lack of accountability serves to encourage continued violations of international law and to undermine respect for the rule of law itself. It is Palestinian civilians – the protected persons of IHL – who pay the price for this impunity, as they continue to suffer at the hands of a brutal and illegal occupation. Judicial regulation is an essential component in ensuring respect for the rule of law and protecting victims: in order for the law to be relevant, it must be enforced. Those accused of violating international law must be investigated and prosecuted. This judicial process is essential, both to ensure victims’ rights to an effective judicial remedy, and to combat impunity and promote deterrence. However, there are limited judicial mechanisms available to Palestinian victims of Israeli violations of international law. According to the terms of the 1995 Israel-Palestine Interim Agreement on the West Bank and the Gaza Strip, the Palestinian National Authority (PNA) does not have jurisdiction over Israelis. This explicitly removes Israeli citizens, and members of its armed forces, from the jurisdiction of the PNA; no Israeli may be brought PCHR’s Work in the occupiedbefore Palestinian a Palestinian territory court. This legally binding restriction effectively removes the Palestinian judicial system from 8 the ambit of legal options available to victims. The State of Israel is legally bound to investigate and prosecute Israeli citizens accused of committing international crimes. To date, however, Israel’s investigations have proved inadequate, while prosecutions – particularly at the command level – have not been forthcoming. In this respect, Israel must be regarded as shirking its legal obligations, and denying its victims effective judicial remedy. ‘The Principle and Practice of Universal Jurisdiction’ outlines the inadequacies of the Israeli judicial system. It is presented that this system – as it relates to Palestinian victims of Israeli violations – does not meet necessary international standards with respect to the effective administration of justice.