Earlier this week the ICC ruled that "Palestine" is not a state and therefore their complaints against Israeli conduct in the Gaza war do not fall under their jurisdiction. The law is pretty clear in this case, and a host of lawyers from the US and Europe provided voluminous evidence for it.
Amnesty, however, doesn't bring a shred of evidence to the contrary. Instead, it pretends that it is the only real interpreter of international law, even beyond the ICC, in this absurd statement:
A “dangerous” statement by the office of International Criminal Court (ICC) prosecutor that it cannot consider allegations of crimes committed during the 2008-9 Gaza conflict means Palestinian and Israeli victims seem likely to be denied justice, Amnesty International said.It seems that Amnesty is claiming that the prosecutor does not have the legal authority to make the decision that the case cannot go forward.
The Office of the Prosecutor today said that it cannot consider allegations of crimes committed during the conflict unless the relevant UN bodies or ICC states parties determine that the Palestinian Authority is a state.
"This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges,” said Marek Marczyński, Head of Amnesty International’s International Justice campaign.
"For the past three years, the prosecutor has been considering the question of whether the Palestinian Authority is a "state" that comes under the jurisdiction of the ICC and whether the ICC can investigate crimes committed during the 2008-9 conflict in Gaza and southern Israel.”
“Now, despite Amnesty International’s calls and a very clear requirement in the ICC’s statute that the judges should decide on such matters, the Prosecutor has erroneously dodged the question, passing it to other political bodies.”
“Amnesty International once again calls on the Prosecutor to follow the procedures established by the Rome Statute by passing the matter to the judges, rather than frustrating efforts to bring justice to Palestinian and Israeli victims of the Gaza conflict.”
Amnesty doesn't even pretend to argue with the legal basis given by the prosecutor in his ruling:
The first stage in any preliminary examination is to determine whether the preconditions to the exercise of jurisdiction under article 12 of the Rome Statute are met. Only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction as set out in articles 13 and 53(1).No, as usual Amnesty chooses to declare what the law is and insult those who disagree - even if they happen to be the ICC. Amnesty didn't even bother to submit its own legal brief to the ICC. They'd rather argue about the law in press releases than in court.
The jurisdiction of the Court is not based on the principle of universal jurisdiction: it requires that the United Nations Security Council (article 13(b)) or a State (article 12) provide jurisdiction. Article 12 establishes that a State can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) or by making an ad hoc declaration accepting the Court's jurisdiction (article 12(3)).
The issue that arises, therefore, is who defines what is a State for the purpose of article 12 of the Statute? ...
In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1).
Outrageously, Amnesty is implying that the ICC prosecutor is biased and that the decision was based on political considerations - as if the ICC is just another part of that nefarious Zionist lobby. This is something that one would see in a Hamas or Fatah newspaper; it is not something that one would expect a human rights organization to say. In fact, it is Amnesty that is trying to politicize the ICC by demanding that they shortcut through the law in order to slam Israel as quickly and thoroughly as possible. If there was any political pressure on the prosecutor, it came from Amnesty and the other NGOs in concert with the "Government of Palestine."
The irony is that if the PLO has decided to go to the General Assembly last year instead of the Security Council, they would certainly have elevated "Palestine" into being a "non-member state" - which is enough for the ICC to consider jurisdiction. (There are plenty of other reasons why the application should be dismissed, but this particular point could have gone in the PLO's favor had they not decided to go for broke last year.)
UPDATE: Amnesty wants ICC prosecutors to have a lot of leeway, as long as it is in the direction they demand:
“It is essential now that the strongest candidate be elected in a public process that gives confidence to everyone who depends on the important work of the International Criminal Court,” said Marek Marczynski, Amnesty International's Campaign Manager on International Justice.(h/t Ian)
“As well as continuing with the existing cases, the Prosecutor will play a large role in determining where the ICC conducts its investigations and which new cases it takes on. Governments, civil society and millions of victims of human rights violations around the world will be looking to the new Prosecutor to pursue international justice to the highest standards.”