הי חברות (צוות נשי משובח),

ראו הערותיי המצומצמות במסמך וכן התייחסות רחבה מטה לשתי נקודות נוספות.

האחת היא להודעת התובעת בדבר פתיחה בחקירה ביחס למצב בפלסטין, שזכפלד הגישה כמוצג. עורכי הדין מתייחסים ליתר המוצגים ולא לזה, ולכן צירפתי להם כמה נקודות אפשריות בנושא (ציינו בפניי שיזקקו לאינפוט שלנו על זה).

הנושא השני הוא חוות הדעת של דוגארד. לדעתי, ההתייחסות לכך נכון לעכשיו לא מספיק חזקה ומתמקדת בנקודות קטנות. הצעתי מטה עוד כמה נקודות שאפשר להזכיר. אעביר את הדברים לעורכי הדין לאחר שאקבל את יתר ההתייחסויות, ככל שתהיינה.

ייתכן שעוד אשפץ ואוסיף הערות במהלך היום, מפאת השעה המאוחרת. אני מזכירה להעביר לי הערות עד סוף יום א' (רצוי עד סוף יום העבודה).

בברכה,

גלית

Hi Thom and Cathalijne,

With respect to exhibit 84, the statement of the Prosecutor of the ICC regarding the opening of an investigation into the Situation in Palestine, here are my thoughts and some points which could be incorporated into the draft:

1.     This exhibit is entirely irrelevant to the question of immunity before the Court.

2.     The ICC's Pre-Trial Chamber I found that it had jurisdiction over the situation in Palestine based on Palestine's its status as a State Party to the Statute – a position that Israel strongly rejects. The Court's ruling is entirely unrelated to immunity.

3.     The former Prosecutor's decision to open an investigation into the Situation also has no bearing on the issue of immunity.

4.     The former Prosecutor's decision relates to the substance of the allegations against Israel regarding its 2014 Operation in the Gaza Strip (it makes no mention of the Ziada incident specifically) and determines that there is a reasonable basis to believe that offenses have been committed to justify an opening of an investigation. Defendants strongly disagree as to this characterization of the events that occurred during the Gaza Operation. Yet as has been repeated, the substantive matter before the Court – Israel's operational actions during a military operation – is entirely separate from the preliminary question of immunity.

5.     Determining whether defendants are entitled to immunity based on consideration of the events themselves would entirely circumvent the purpose of immunity in the first place, which is for states to avoid dealing with the burden of litigation abroad before national courts of other states.

There is a good quote on this point in the Korean decision, pg. 24 referencing the ICJ in the jurisdictional immunities case and on pg. 46 of the ruling, which you may want to consider using:

"…the essential content of state immunity that the jurisdiction of other national courts does not bind an independent sovereign state should be construed: Not only does it mean that it will not receive an adverse judgment from a court of another country, but it also means that it does not bear the burden of filing a lawsuit [response – G.R.] on the merits of a lawsuit filed in a court of another country. However, whether or not a 'serious human rights violation' due to 'violation of jus cogens' is a matter that can inevitably be judged only after going through a trial on the merits of the case. Therefore, considering the institutional purpose of the state immunity as discussed above, we should agree that the severity of the defendant's violation and the severity of the resulting damage cannot be considered as a prerequisite for the trial on the merits and cannot be the criterion for judging the existence of jurisdiction."

With respect to the Dugard opinion, my feeling is that we can be much stronger with the criticism of the opinion (particularly given your impression that the Court might hold it in high regard, which makes sense as he is a reputable international law scholar). I think that as currently drafted, that section focuses on a few minute details, but should zoom out a bit and point to some of the larger flaws in the opinion's "methodology". I mention below a few things that stood out in my mind for your consideration. I would not necessarily incorporate all of these, so as not to give him too much gravitas, but some of these bear mentioning in my opinion –  

1.     Dugard speaks of general concepts such as "the interests 'of the international community as a whole'" and notes that while "its meaning may not be absolutely clear", "the international community as a whole is the 'depository of values that transcend the State'" (para. 12). While these are noble concepts, they do not coincide with how customary international law is created and identified.

2.     Professor Dugard recalls the Arrest Warrant case, the Jurisdictional Immunities case and the Jones judgment respectively – all of which were relied on by the defendants in support of their position that there is no jus cogens exception in criminal law, let alone civil law. One may wonder why, until Prof. Dugard boldly concludes that "[s]uch judicial decisions [Jurisdictional Immunities and Jones – GR] are simply wrong" (para. 19). In other words, in Prof. Dugard's mind, both the ICJ and the ECtHR misunderstood the Arrest Warrant case and simply got the law wrong. Elsewhere in the opinion (para. 36), he explains that these two decisions "present a problem" and that neither "is good authority for the proposition that there is immunity in civil cases for international crimes committed by State officials." There is no doubt that these two decisions do, in fact, create a problem for Prof. Dugard's and the Appellant's proposition. However, it remains unclear how the decisions of two of the most renowned international courts are not good authority on precisely the issue before this Court.

3.     The opinion goes on to state that the "Arrest Warrant and a handful of national decision notwithstanding, customary international law excludes immunities as a defence or bar to jurisdiction for core international crimes…" (para. 20), but in fact, upon closer examination, the Dugard memo mentions only two national decisions – the Eichmann case, already discussed by the defendants, and the BGH judgment, which was given after the response brief was filed in December 2020.

4.     Dugard devotes attention to the ILC deliberations regarding Art. 7. Although he himself concedes that "voting in Commission is rare", he goes on to explain that it is "resorted to on controversial issues that challenge the Commission, such as the question of immunity for international crimes." (para. 23). One wonders – if an issue is so controversial as to require a rare vote, and with regard to which there is clearly no international consensus (21-8), how can it be considered customary international law?

5.     As for the distinction between immunity from criminal and civil jurisdiction, Dugard writes that that no compelling reason has been advanced for this distinction (para 25). This statement is truly extraordinary – as the distinction is not simply a policy argument being advanced by the defendants, but is the state of the law. One may recall that Art. 7 of the Draft Articles, which Dugard wishes to rely on, expressly states that it only deals with criminal proceedings, and various [international and national] judgments have made this distinction, including the very same BGH decision of January 2021 that Dugard wishes to rely on, which acknowledges this distinction in paras. 41-44.

6.     The opinion goes on to reference various binding and non-binding sources that deal with the issue of reparations, completely conflating reparations with immunity, although they are entirely distinct and unrelated.  

As a side note, I mention that Dugard has been a very vocal, virulent critic of Israel's actions with respect to the Palestinians. I don't know whether you will want to go into the issue of credibility of the expert, but he is certainly biased with respect to his opinions of Israel.

 

ד"ר גלית רג'ואן, עו"ד

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GalitRa@justice.gov.il

 

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