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The Possibility of the ICJ and the ICC Taking Action in the Wake of Israel’s Operation «Cast Lead» in the Gaza Strip

A Jurisdiction and Admissibility Analysis

Series:

Oded Friedmann

Israel’s Operation «Cast Lead» in Gaza differed from prior armed confrontations between Israel and Hamas both in terms of its death toll and destruction. Following the Operation, numerous members of the international community and non-governmental organizations severely criticized the conduct of both sides during the conflict, calling upon the International Court of Justice (ICJ) and, mainly, the International Criminal Court (ICC) to investigate international law violations alleged against Hamas and, to a greater extent, Israel. This book provides an in-depth analysis of whether Israel or Israelis could face a legal reckoning before the ICJ and ICC, based on the serious allegations made against the conduct of the Israeli Defense Forces during the Gaza armed conflict. The analysis focuses solely on jurisdiction and admissibility issues, and does not weigh in on the veracity or legal accuracy of the allegations.

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Chapter Two POSSIBLE INVESTIGATION / PROSECUTION OF ISRAELI MILITARY PERSONNEL AND GOVERNMENT OFFICIALS BY THE INTERNATIONAL CRIMINAL COURT FOLLOWING THE GAZA ARMED CONFLICT

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1. The International Criminal Court 1.1. Basic facts The ICC is a permanent international institution established by treaty for the purpose of investigating and prosecuting individuals accused of committing “the most serious crimes of international concern”275, namely genocide, crimes against humanity and war crimes276. Art. 5 Rome-Statute provides also for “ag- gression” as a crime277 within the jurisdiction of the ICC, however, only after it has been defined and approved by the Assembly of States Parties (“ASP”), which is the management oversight and legislative body of the ICC278. The official seat of the ICC is at The Hague, The Netherlands (the host State), whereby its proceedings make take place anywhere279. The Rome Statute, which governs the ICC, was adopted on 17 July 1998 at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome, Italy280 (the “Rome Conference”). Ac- cording to Art. 126(1) Rome-Statute, 60 ratifications of the Statute were re- quired, in order for it to enter into force. The 60th instrument of ratification was deposited with the UN Secretary-General on 11 April 2002, when 10 countries 275 Art. 1 Rome-Statute. 276 Art. 6, 7 and 8 Rome-Statute, respectively. 277 In June 2010, the ICC's first review conference in Kampala, Uganda expanded the defi- nition of the "crime of aggression" and the ICC's jurisdiction over it. The ICC will not be allowed to prosecute for this crime at least until the year 2017 – see also infra note 334. 278 ICC, Establishment...

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