Request for Investigating a Case Lies within the Jurisdiction of the International Criminal Court (ICC) As Per Article (5) of the Statute

Mr. Luis Moreno-Ocampo

Prosecutor of the permanent International Criminal Court (ICC(

Applicant: The Arab Center for the Independence of the Judiciary and the Legal Profession ( ACIJLP)  as the coordinator of ACICC [1]

Subject: Request to start collecting information on a case lies within the jurisdiction of the ICC as per Article (5) of the statute.

Venue: Gaza Strip – Palestine (state has the status of UN observer – doesn’t sign nor ratify Rome Statute).

Defendant: Israeli nationals (non-member state in the ICC and doesn’t sign Rome Statute), namely:

1.     Head of the transitional government " Ehud Olmert"

2.     Israeli Defense Minister  "Ehud Barak"

3.     Deputy Defense Minister  " Matan Velnaie"

4.     Internal Security Minister "Avi Dichter"

5.     Chief of Staff " Gabi Ashkenazi"

Being primarily responsible for their inferiors in the air, ground and marine forces in the Israeli Army.

Date of the Crime: As of December 27^th till now.

A- Legal Base:

The applicant takes the following statute provisions as a base for the request:

Article 5

Crimes within the jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Article 13

Exercise of jurisdiction

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Article 15

Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2. The Prosecutor shall analyze the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

 Article 17

Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

 B- Facts

The attack, war or the military campaign codenamed by the Israeli Army as "Cast Lead" against Gaza is considered an extensive military operation against Gaza Strip – Palestine since December 27^th, 2008.

Israel launched its military operation at 11:30 a.m., 27 December 2008 (9:30 GMT) and proclaimed that the operation might last for a while and will not stop till achieving the aspire goals.

The first day of the attack is considered the bloodiest day in terms of the numbers of the victims n one day since 1948 as the Israeli air bombing killed more than 200 Palestinians and injured 700; therefore this day is named "Massacre of the Black Saturday" in some Arab media.

The Invasion:

On the evening of 3 January, Israel launched its ground operation with troops including ground forces, artillery and engineering forces and commandos, entering Gaza under a decree from the Israeli Security Cabinet in a closed meeting.

Battleships, tanks and artillery joined the air forces in raining Gaza with rockets and bombs leading to several massacres, one of them targeted the Ibrahim al-Maqadna Mosque resulting in 16 victims (4 children) and 60 wounded. Moreover the army recalled thousands of the reserve to participate in the operation and announced that the operation will last for several days.

 Till the date of submitting this request, the victims of the operation are:

First: 971 Palestinians are estimated to have been killed in this conflict. The Palestinian fatalities include 281 children and 100 women, in addition to 4500 wounded.

Second: Destructing and bulldozing ring huge residential and agricultural areas in the northern and southern areas of Gaza and arresting hundreds of civilians.

Third: Using some internationally banned weapons such as phosphorous bombs and shocking gas as the used bombs were flamed and dispersed shrapnel causing heavy white smoke hindering sight and causing shock, congestion and unconsciousness.

Fourth: Seizing many residential units along with the residents in inhumane conditions as they are deprived from water and food and sometimes used as human shields to face the attacks of the resistance groups. Furthermore, the Israeli army sabotage and plundered the homes and stole their contents in addition to bulldozing vast areas of homes, agricultural land and own private properties.

Fifth: Targeting Civilians and Civil Place:

·        Targeting civilians: 617 civilians were killed, and UNRWA spokesman Christopher Gunness said "this is a conservative estimate and sure it is more than that" as it was based on mere visits by the UNRWA officials to the hospitals and medical centers in Gaza.

·        Targeting houses: Some houses were targeted in Gaza during the air bombing leading to injuries, deaths and severe damages to the houses and their residents.

·        Targeting Worshipping places: Many mosques were targeted leading to the demolition of many neighboring houses, such as the mosques of Abu Bakr and Emad Aql in Jambalaya, Al Abbas mosque in Al Rimal, Alsraya mosque on Omar El Mkhtar street in Gaza City, Al Sheikh Zaid mosque near to Al Kataiba and Al Kholafa Al Rashedein mosque in Northern Gaza.

·        Targeting universities: Late on Monday, 29^th December, the Israeli air forces shelled the buildings of the Islamic University in Gaza through six consecutive air strikes.

·        Targeting Schools: UNRWA schools (hosting hundreds of civilians) were bombed.     

Second: Condemned Acts under the Statute

The applicant sees that more than one crime in this invasion can fall under the ICC jurisdiction as follows:

First: War Crimes:

         1-Willful killing: Article (8/1) of ICC Statute.

         2-Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (8/4)

         3-Willfully causing great suffering, or serious injury to body or health (8/3)

         4-Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i)Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii)Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. (Article 8 – B 1,2,3,4).

         5-Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives. (8/5)

         6-Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. (8/9)

         7-Killing or wounding treacherously individuals belonging to the hostile nation or army (8/11)

         8-Employing poison or poisoned weapons (8/17)

         9-Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices (8/18)

      10-Intentionally directing attacks against buildings, material, medical units and transport (8/24)

      11-Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions (8/25)

      12-Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

                     (i)Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

                    (ii)Intentionally directing attacks against buildings, material, medical units

                    (iii)Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian  

                   (iv)Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives

                    (v)Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand  (8 – E / 1,2,3,4,8)

Second: Crimes against humanity

1.Murder (Article 7/A)

2.Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court (7/h)

3.Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (7/k)

Third: Context of the Crimes

Since the Israeli occupation to the Palestine in 1948, the Palestinians come under military and political conflicts.

Gaza (the place of the crimes):

The Gaza Strip is a coastal strip of land along the Mediterranean Sea. It borders Egypt on the south-west and Israel on the north and east. It is about 41 kilometers (25 mi) long, and between 6 and 12 kilometers (4–7.5 mi) wide, with a total area of 360 square kilometers (139 sq mi).

Gaza was named after the biggest cites in the strip (Gaza City) and this strip was considered as an integral part of the mandate of Great Britain till May 1948 the date of segregating Palestine as the strip was due to be part of the land to be give to the state of Palestine, yet this plan have never seen the light. Following the repercussions of 1948, 1956 wars, the strip became under the military ruling by Egypt until Israel occupied it for 5 months in an attack against Egypt during the Suez Canal crisis. In March 1957 Israel withdrew from the strip and it fell back again under the Egyptian military ruling till the war of 1967 as it was occupied by the Israeli army along with Sinai peninsula. In 1982, Israel withdrew from Sinai Peninsula and kept its control over the strip as Egypt refused to take hold over the strip.

Upon Oslo Accords in 1993, the Palestinian Authority (PA) entered parts of the strip and in February 2005, the Israeli government voted to adopt the plan of the Israeli Prime Minister at that time (Ariel Sharon) to unilaterally withdrew from Gaza and erase all the settlements and military bases there which was completed in September 12^th, 2005.

The Strip along with the West Bank represents the nucleolus of the promised State of Palestine under negotiation for more than 15 years now (the land occupied by Israel in 1967).

1.5 million people lives in Gaza Strip, the majority of them refugees from 1948 war. The population density is 26400 citizen/km and 55500 citizen/km in the refugee camps. There are about 44 residential compounds in Gaza Strip, the most important of which are:

·        Gaza

·        Rafah

·        Khan Yunis

·        Bani Suheila

·        Jabalia

·        Deir al-Balah

·        Khuza'a

·        Abasan al-Kabera

·        Abasan al-Saghira

·        Beit Lahia

·        Beit Hanoun

Israel built about 25 settlements in Gaza mostly on the southern coast and the remote northern areas of the strip. The number of the setters is about 7781 in 23 settlements with a population density of 665 settler/km according to the statistics of the Keenest Research Department in 2003. The said settlements were evacuated and demolished upon implementing the disengagement plan fro Gaza Strip.

In the 1947 United Nations Partition Plan, Gaza was assigned to the Arab state. During the 1948 Arab-Israeli War, Egypt held Gaza and its surrounding area and occupied the city after the war. The city's growing population was augmented by an influx of Arab refugees fleeing nearby cities, towns and villages that were captured by Israel (about 200.000 refugees).

Despite the fact that Gaza City has markets and some light industries, yet the economy cannot support the huge population there and therefore the city receives aids from the UNRWA.

In 1956, there were military clashes between Egypt and Israel in Gaza Strip as Israel accused Egypt of using the strip as a base to launch raids against Israel. In October 1956, Israel attacked the Suez Canal in cooperation with France and Britain and occupied Gaza Strip towards Sinai. In March of the same year, the international forces replace the Israeli presence and Egypt regained administrative control over the strip.

Israel occupied the strip again during the Arab-Israeli war in 1967.

Early in December 1987, the first Intifada started in the strip in the wake of demonstrations by the Palestinians who asked for the right of self-determination and end of occupation.

In May 1994, following the Palestinian-Israeli agreements known as the Oslo Accords, a phased transfer of governmental authority to the Palestinians took place. Much of the Strip (except for the settlement blocs and military areas) came under Palestinian control. The Israeli forces left Gaza City and other urban areas, leaving the new Palestinian Authority to administer and police the Strip.

Camps in Gaza Strip:

There are several refugee camps in Gaza, such as:

·        Bureij

·        Al-Shati (camp)

·        Jabalya Camp

·        Nuseirat (camp)

·        Al- Shabora

·        Deir al-Balah camp

·        Khan Yunis

·        Maghazi (camp)

Gaza Strip was under the control of Egypt in the wake of 1948 war till the tripartite invasion in 1956 as Israel took over Gaza Strip for sic months before coming back again to Egypt till 1967 and the six-day war from which the strip came under the Israeli control. Since Oslo Accords and the implementation of the self-autonomous in Gaza, the Palestinians gradually started to control the residential areas in the strip.

In February 2005, the Israeli government voted to implement a unilateral disengagement plan from the Gaza Strip. The plan began to be implemented on 15 August 2005, and was completed on 12 September 2005. Under the plan, all Israeli settlements in the Gaza Strip (and four in the West Bank) and the nearby Erez bloc were dismantled with the removal of all 9,000 Israeli settlers (most of them in the Gush Katif settlement area in the Strip's southwest) and military bases. On 12 September 2005 the Israeli cabinet formally declared an end to Israeli military rule in the Gaza Strip. However, Israel maintained its control over the crossings in and out of Gaza. Even the Rafah crossing between Egypt and Gaza was monitored by the Israeli army through special surveillance cameras. Official documents such as passports, I.D. cards, export and import papers, and many others must be approved by the Israeli army. Furthermore, Israel is still responsible for providing the residents of Gaza with fuel and electricity even after its withdrawal from the strip.

On June 25^th, 2006, one of Ezz Elddin El Qassam brigades penetrated into Israel through a tunnel and hit an Israeli artillery force on the borders killing two soldiers and causing some other injuries. An Israeli soldier (Gilad Shleit) was arrested and taken into Gaza Strip and the brigade said it will only release him in return for releasing some Palestinian captives in the Israeli prisons. The Israeli forces swept Gaza with huge ground troops supported by the air forces hitting several places inside Gaza.

On November 26^th, 2006, the Palestinians and Israelis reached a ceasefire and withdrawal of the Israeli forces from Gaza without releasing the captive soldier. In the following few months, the domestic conflict raged between Hamas and Fatah an on June 13^th, 2007, Hamas took over the security bodies Strip forcing "Mahmoud Abbas" the Palestinian President to  dissolve the government chaired by "Ismael Hania" and apoointed a transitional government chaired by Salam Fiad", therefore, there are two governments in Palestine one in Gaza and the other in the West Bank.

Gaza Blockade:

Israel imposed a very strict blockade over Gaza immediately after Hamas took full control over it. The blockade banned any provision of electricity, many goods, fishing in deep water, closing the cross border between the strip and Israel on the one hand and between Rafah and Egypt (the only out let for Gaza to the rest of the world). In the wake of this blockade, thousands of Palestinians (750 thousands) attacked the Egyptian cross border of Rafah on January 23rd, 2008 and entered into the Egyptian land seeking food as there was no food left in Gaza.

The deteriorating condition of Gaza residents made the UN Humanitarian Affairs Coordinator to depict the blockade as "violation of human dignity".

Israel demolished the only international airport in Gaza the matter that aggravated the severity of the blockade and suffering.

Fourth: Issues of admissibility

This request is to investigate the crimes against humanity and the war crimes committed in Gaza Strip as of December 27^th, 2008 up to now in accordance with the provisions of Article 17 of the Statute. The applicant finds the following:

1-The case is not being investigated or prosecuted by a State which has jurisdiction over it

2-The person concerned has not been tried for conduct which is the subject of the complaint

3-The case is of sufficient gravity to justify further action by the Court

4-The context indicates that the occupation state doesn’t intend to trial the perpetrators.

Fifth: Brief of the Evidence and Information set forth in the Request[2]

In accordance with the provisions of Article 28(2) (d) and supporting the role of the ICC prosecutor, the request is attached with "Evidence Brief" to prove the presence of "Reasonable Causes" to think that the defendants have committed the said crimes within the jurisdiction of the court.

1-    Statements, press releases and reports issued by:

A-     Human Rights Council

B-      UNRWA

C-     International Red Cross

D-     Amnesty International

E-      Human Rights Watch

F-      Palestinian Center for Human Rights

2- Photographs

3- Statements by Israeli officials

Therefore:

Whereas the said acts have:

1- Been committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack

2- Been committed as part of a plan or policy or as part of a large-scale commission of such crimes

3- Been of clear knowledge by the perpetrators that such acts are condemned by virtue of the international law of human rights, the international humanitarian law and the ICC Statute.

Based on the above the Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) submits this request to your revered court to allow it initiate an investigation and take steps to collect information, evidence and use of the powers granted to you under Article 15/2 and 15/3 to document the crimes committed by the Israeli occupation army against the civilian population in Gaza Strip.

ACIJLP Director General

Mr. Nasser Amin,

Lawyer

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