The submission highlighted the need for precision within the Court’s jurisprudence as to the use of the term ‘occupation’, so as to ensure that colloquial application of the term in the context of non-international armed conflict does not undermine its specific and exclusive legal application to international armed conflict.
The submission further cautioned against the fragmentation of Rome Statute war crimes into those which apply only in the context of conduct of hostilities, those which apply outside conduct of hostilities, and those which can apply either during or outside the conduct of hostilities. The submission argues that there is no basis in the Rome Statute for the existence of such categories, and suggests that it would be an error to read such a restrictive element into the Statute’s definition of war crimes.
The submission proposes that in considering the meaning to be ascribed to notions such as ‘means and methods of warfare’, and the meaning ascribed to the notion of ‘conduct of hostilities’, the Court must look beyond ‘traditional conceptions’ of the European battlefield. It is necessary for the Court to recognise contexts where the ‘ultimate aim’ of military operations are unlawful goals of annexation and colonialism. In such contexts, the type of ‘attacks’ which constitute Rome Statute war crimes are carried out not only through ‘classic methods of warfare’ such as shelling and sniping, but also where civilians are endangered by a military infrastructure of walls and checkpoints, military policing, permit regimes, administrative detention, and the monitoring of cyberspace for dissent.
In addition, Al-Haq noted the importance of interpreting the war crime of pillage in such a way as to not preclude the possibility of cultural objects appropriated by a belligerent military force, including that of an Occupying Power, for state use, such as for display in museums. The pillage of Palestinian cultural objects and natural resources has been a cornerstone of the prolonged occupation of the West Bank, including East Jerusalem, and the Gaza Strip.
This amicus curiae submission follows Al-Haq’s earlier submission in March 2020 in the Situation in the State of Palestine.
Read the submission here.