A/HRC/13/53
an alternative, encouraging or formally requesting the International Committee of the Red
Cross to examine the topic.
D.
Implementing the report of the United Nations Fact-finding Mission on
the Gaza Conflict: universal jurisdiction
16.
Among the most controversial, yet consequential, recommendations of the FFM
report, is its endorsement of seeking accountability by way of “universal jurisdiction”
through national judicial systems that contain such legislative authorization. The
recommendation is formulated as follows: “In the context of increasing unwillingness on
the part of Israel to open criminal investigations that comply with international standards,
the Mission supports the reliance on universal jurisdiction as an avenue for States to
investigate violations of the grave breach provisions of the Geneva Conventions of 1949,
prevent impunity and promote international accountability.”19
17.
In addressing ordinary international crimes, such as piracy or counterfeiting, it has
long been the case that national courts exercise their authority to attach legal consequences,
including for crimes, to behaviour that takes place beyond territorial jurisdiction. What is
new is the assertion of this authority in relation to war crimes, crimes against humanity,
genocide and torture. Most countries do not have such an authorization or do not exercise
their authority in relation to war crimes committed outside national territory. For those that
do, it is possible to pursue allegations of war crimes in relation to those who acted on behalf
of either Israel or Hamas during Operation Cast Lead, to arrest, indict, prosecute, and
punish.
18.
Although there are political ways to insulate potential defendants from such a legal
process, in national courts reliance on universal jurisdiction is not subject to the sorts of
constraints that block efforts to achieve accountability within the United Nations system.
As indicated in the FFM recommendation, recourse to universal jurisdiction is only deemed
appropriate in those situations where there are substantial grounds to believe that a
government cannot or will not take advantage of its own prerogative (and duty) to
investigate authoritatively on its own. That is, the first line of defence against impunity is
through the governmental procedures of the State whose nationals are suspected to be
perpetrators. Some Israeli journalists and public figures have called on the Israeli
Government to fulfil this obligation, arguing that even if the FFM report can be set aside
because of its supposed bias and the auspices under which it was produced, this does not
mean that the IDF acted in full accordance with international humanitarian law during
Operation Cast Lead.20
19.
It has been reported that the Israeli Foreign Minister at the time of Operation Cast
Lead and currently an opposition leader, Tzipi Livni, cancelled a visit to London in
December 2009, because of the expectation that she would be arrested and charged with
war crimes.21 A spokesperson for the Israeli Ministry of Foreign Affairs has confirmed that
an arrest warrant had been issued in Britain charging Ms. Livni with orchestrating the
19
20
21
8
A/HRC/12/48, para. 127.
For example Professor Avi Sagi of Bar Ilan University, Haaretz, 14 December 2009. Available at
http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=1134917.
“Israeli opposition leader Tzipi Livni ‘cancels London visit over prosecution fears’”, The Daily
Telegraph, 14 December 2009, available at http://www.telegraph.co.uk/news/worldnews/
middleeast/israel/6811578/Israeli-opposition-leader-Tzipi-Livni-cancels-London-visit-overprosecution-fears.html.
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