![\"The](\"http:\/\/static.guim.co.uk\/static\/05764d979df7bd309c6023f2319a8f3dfd1cd72a\/common\/images\/logos\/the-guardian\/comment.gif\")
<\/a><\/p>\nFriday 29 August 2014<\/p>\n
Fatou Bensouda: the truth about the ICC and Gaza<\/span><\/p>\n<\/p>\n Under the laws of the Hague court, my office can only investigate alleged war crimes in Palestine if it grants us jurisdiction in its territory. It has not done so<\/p>\n<\/p>\n<\/p>\n Fatou Bensouda<\/a><\/span><\/span><\/p>\n ‘It is my firm belief that recourse to justice should never be compromised by political expediency.’ <\/span><\/span><\/p>\n Photograph: Mohammed Othman\/AFP\/Getty Images<\/span><\/span><\/p>\n<\/p>\n Has the international criminal court avoided opening an investigation into alleged war crimes in Gaza due to political pressure, as suggested in an article published in the Guardian<\/a> earlier this week? The answer is an unequivocal “no”. As prosecutor of the ICC, I reject any suggestion of this in the strongest terms.<\/p>\n When an objective observer navigates clear of the hype surrounding this issue, the simple truth is that my office has never been in a position to open such an investigation due to lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.<\/p>\n The Rome statute<\/a>, the ICC’s founding treaty, is open to participation by states. The prosecutor can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the statute.<\/p>\n This means that the alleged crimes committed in Palestine are beyond the legal reach of the ICC, despite the arguments of some legal scholars that fundamental jurisdictional rules can be made subject to a liberal and selective interpretation of the Rome statute. They appear to advocate that as the object and purpose of the ICC is to end impunity for mass crimes, the court ought to intervene, even where clear jurisdictional parameters have not been met. This is neither good law nor does it make for responsible judicial action.<\/p>\n The Palestinian Authority sought to accept the jurisdiction of the ICC in 2009. My office carefully considered all of the legal arguments put forth and concluded in April 2012<\/a>, after three years of thorough analysis and public consultations, that Palestine’s status at the UN as “observer entity” was crucial \u2013 since entry into the Rome statute system is through the UN secretary general, who acts as treaty depositary. Palestine’s status at the UN at that time meant it could not sign up to the Rome statute. The former ICC prosecutor concluded that as Palestine could not join the statute, it could also not lodge an article 12-3 declaration bringing itself under the ambit of the treaty, as it had sought to do.<\/p>\n![\"Fatou](\"http:\/\/static.guim.co.uk\/sys-images\/Guardian\/Pix\/pictures\/2014\/8\/29\/1409329039058\/Fatou-Bensouda.jpg\")
<\/a> <\/p>\n![\"Gaza](\"http:\/\/static.guim.co.uk\/sys-images\/Guardian\/Pix\/pictures\/2014\/8\/29\/1409324376470\/Gaza-city-after-an-Israel-011.jpg\")
<\/p>\n