20 dec 2019
Forty-Five Palestinian civilians, including 17 children, 3 women and a journalist, were shot and injured by Israeli occupation forces’ (IOF) fire against peaceful protestors at the 85th Great March of Return (GMR), this Friday, 20 December 2019.
This week, IOF continued the use of excessive force against peaceful protestors, as 11 civilians were shot with live bullets and shrapnel; 3 were deemed in serious condition, in addition to other injuries with rubber bullets, mainly in protesters’ upper bodies.
The Supreme National Authority of GMR called for today’s protests under the slogan “Hebron is a thorn in the way of efforts to create a Jewish majority” in solidarity with Hebron Governorate, which has been lately the target of Israeli settlement schemes.
At 14:00, Palestinian civilians head towards the five GMR encampments in the eastern Gaza Strip to join today’s protest which lasted to 16:30.
Since GMR started on 30 March 2018, PCHR documented 215 civilian killings by IOF, including 47 children, 2 women, 9 persons with disabilities, 4 paramedics and 2 journalists. Additionally, IOF shot and injured 14,815 civilians, including 3,735 children, 391 women, 255 paramedics and 219 journalists, noting that many sustained multiple injuries on separate occasions.
The following is a summary of today’s events along the Gaza Strip border:
Northern Gaza Strip: demonstrations took off in eastern Jabalia. A few protesters threw stones at IOF stationed along the border fence. IOF shot and injured 15 civilians, including 5 children, a woman and a journalist; 3 of them, including a girl and an elderly woman, were shot with live bullets and shrapnel; 11, including 3 children, were shot with rubber bullets; and a child was hit with a tear gas canister. The wounded journalist, Thair Khaled Fahmi Abu Rayash (24), was shot with a rubber bullet in his left leg.
Gaza City: protests took part in Malaka area in eastern Gaza City. IOF shot and injured protestors with live and rubber bullets as well as tear gas canisters. No casualties were reported.
Central Gaza Strip: IOF stationed behind sand berms and in military SUVs along the border fence in eastern al-Buriej Camp fired live and rubber bullets as well as tear gas canisters at protestors, including youth, children and women, while gathering adjacent to the border fence at a range varying between 0 – 300 meters. Additionally, IOF launched a drone to photograph protestors who had set tires on fire and thrown stones and sound bombs near the borders, without posing any threat to IOF’s lives.
6 civilians sustained bullet injuries in the shooting which lasted until 17:00, including a woman: 3 were shot with live bullets and 3 were shot with rubber bullets. The wounded were taken to al-Aqsa Hospital in Dir al-Balah: Ibrahim Mahmoud Saleh Abu Khashab (25), was deemed in serious condition after being shot with a live bullet in his abdomen and admitted to Intensive Care Unit (ICU), while others’ injuries were classified between moderate to minor. Furthermore, dozens of protestors suffocated due to tear gas inhalation; some of them were treated on spot while others were taken to hospitals.
Khan Younis: Hundreds civilians joined today’s protests in Khuza’ah area in eastern Khan Younis. Most of the protesters stayed in the encampment for the activities while only few dozens gathered near the border fence and attempted to throw stones and Molotov cocktails. IOF fired live and rubber bullets and tear gas canisters at them. As a result, 9 civilians, including 2 children and a woman, were shot with rubber bullets. Moreover, dozens of protestors suffocated due to tear gas inhalation.
Rafah: hundreds of protestors gathered in eastern al-Shawka neighborhood while others remained at the protest encampment, where speeches and theatrical performances were performed. Dozens attempted to approach the fence and throw stones. IOF fired live and rubber bullets and tear gas canisters at protestors. As a result, 14 civilians, including 5 children, were injured; 2 were deemed in serious condition, including a child: 5 shot with live bullets, 5 with rubber bullets and 4 were hit with tear gas canisters. Those sustained serious wounds were identified:
This week, IOF continued the use of excessive force against peaceful protestors, as 11 civilians were shot with live bullets and shrapnel; 3 were deemed in serious condition, in addition to other injuries with rubber bullets, mainly in protesters’ upper bodies.
The Supreme National Authority of GMR called for today’s protests under the slogan “Hebron is a thorn in the way of efforts to create a Jewish majority” in solidarity with Hebron Governorate, which has been lately the target of Israeli settlement schemes.
At 14:00, Palestinian civilians head towards the five GMR encampments in the eastern Gaza Strip to join today’s protest which lasted to 16:30.
Since GMR started on 30 March 2018, PCHR documented 215 civilian killings by IOF, including 47 children, 2 women, 9 persons with disabilities, 4 paramedics and 2 journalists. Additionally, IOF shot and injured 14,815 civilians, including 3,735 children, 391 women, 255 paramedics and 219 journalists, noting that many sustained multiple injuries on separate occasions.
The following is a summary of today’s events along the Gaza Strip border:
Northern Gaza Strip: demonstrations took off in eastern Jabalia. A few protesters threw stones at IOF stationed along the border fence. IOF shot and injured 15 civilians, including 5 children, a woman and a journalist; 3 of them, including a girl and an elderly woman, were shot with live bullets and shrapnel; 11, including 3 children, were shot with rubber bullets; and a child was hit with a tear gas canister. The wounded journalist, Thair Khaled Fahmi Abu Rayash (24), was shot with a rubber bullet in his left leg.
Gaza City: protests took part in Malaka area in eastern Gaza City. IOF shot and injured protestors with live and rubber bullets as well as tear gas canisters. No casualties were reported.
Central Gaza Strip: IOF stationed behind sand berms and in military SUVs along the border fence in eastern al-Buriej Camp fired live and rubber bullets as well as tear gas canisters at protestors, including youth, children and women, while gathering adjacent to the border fence at a range varying between 0 – 300 meters. Additionally, IOF launched a drone to photograph protestors who had set tires on fire and thrown stones and sound bombs near the borders, without posing any threat to IOF’s lives.
6 civilians sustained bullet injuries in the shooting which lasted until 17:00, including a woman: 3 were shot with live bullets and 3 were shot with rubber bullets. The wounded were taken to al-Aqsa Hospital in Dir al-Balah: Ibrahim Mahmoud Saleh Abu Khashab (25), was deemed in serious condition after being shot with a live bullet in his abdomen and admitted to Intensive Care Unit (ICU), while others’ injuries were classified between moderate to minor. Furthermore, dozens of protestors suffocated due to tear gas inhalation; some of them were treated on spot while others were taken to hospitals.
Khan Younis: Hundreds civilians joined today’s protests in Khuza’ah area in eastern Khan Younis. Most of the protesters stayed in the encampment for the activities while only few dozens gathered near the border fence and attempted to throw stones and Molotov cocktails. IOF fired live and rubber bullets and tear gas canisters at them. As a result, 9 civilians, including 2 children and a woman, were shot with rubber bullets. Moreover, dozens of protestors suffocated due to tear gas inhalation.
Rafah: hundreds of protestors gathered in eastern al-Shawka neighborhood while others remained at the protest encampment, where speeches and theatrical performances were performed. Dozens attempted to approach the fence and throw stones. IOF fired live and rubber bullets and tear gas canisters at protestors. As a result, 14 civilians, including 5 children, were injured; 2 were deemed in serious condition, including a child: 5 shot with live bullets, 5 with rubber bullets and 4 were hit with tear gas canisters. Those sustained serious wounds were identified:
- Hazem Khaled Abu Jaridah (20), who was shot with a live bullet in his neck and referred to the Gaza European Hospital.
- Basel ‘Abdul Raouf Salam al-Lolahi (15), who was shot with a live bullet upper his thigh.
Following the announcement on Friday that the International Criminal Court (ICC) in the Hague would be investigating the Israeli military for war crimes against the Palestinians, Israeli Prime Minister Binyamin Netanyahu issued a statement claiming the ICC had ‘no jurisdiction’ to charge Israel.
According to Netanyahu, because Israel never signed on to be a member of the ICC, the Court had “no jurisdiction in this case”.
He further claimed that the ICC was being used as a “political tool to delegitimize the State of Israel”.
The war crimes charge against the Israeli military was submitted by the Palestinian Authority in 2015, following an invasion by Israel into the Palestinian Territory of the Gaza Strip that resulted in Israeli forces killing more than 1400 Palestinian civilians.
The Chief Prosecutor at the ICC, Fatou Bensouda, has looked into the charges and has found enough of a factual basis to move forward with an investigation of the state of Israel for war crimes.
In her ruling, Ms Bensouda said a preliminary examination had gathered enough information, and that the criteria had been met to open an investigation.
Ms. Bensouda added that she was “satisfied that there [was] a reasonable basis to proceed” with an inquiry.
“[T]here are no substantial reasons to believe that an investigation would not serve the interests of justice”, she said.
Ms. Bensouda had also submitted an inquiry with the judges on the court as to what territory the investigation would cover.
Israel has occupied the West Bank, Gaza and East Jerusalem since a 1967 war, and has occupied those territories with martial law since then.
Palestinians living in the Territories have been denied the right to self-determination.
According to Netanyahu, because Israel never signed on to be a member of the ICC, the Court had “no jurisdiction in this case”.
He further claimed that the ICC was being used as a “political tool to delegitimize the State of Israel”.
The war crimes charge against the Israeli military was submitted by the Palestinian Authority in 2015, following an invasion by Israel into the Palestinian Territory of the Gaza Strip that resulted in Israeli forces killing more than 1400 Palestinian civilians.
The Chief Prosecutor at the ICC, Fatou Bensouda, has looked into the charges and has found enough of a factual basis to move forward with an investigation of the state of Israel for war crimes.
In her ruling, Ms Bensouda said a preliminary examination had gathered enough information, and that the criteria had been met to open an investigation.
Ms. Bensouda added that she was “satisfied that there [was] a reasonable basis to proceed” with an inquiry.
“[T]here are no substantial reasons to believe that an investigation would not serve the interests of justice”, she said.
Ms. Bensouda had also submitted an inquiry with the judges on the court as to what territory the investigation would cover.
Israel has occupied the West Bank, Gaza and East Jerusalem since a 1967 war, and has occupied those territories with martial law since then.
Palestinians living in the Territories have been denied the right to self-determination.
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Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan) and the Palestinian Center for Human Rights (PCHR) (hereafter the organizations) welcome, albeit with some reservations, the development from the Office of the Prosecutor, to finally progress the Situation of Palestine, and submit the question of territorial jurisdiction to the Pre-Trial Chamber of the International Criminal Court (ICC).
The Situation of Palestine has been stalled for five years in preliminary examination, despite the Office of the Prosecutor having received over 125 communications pursuant to Article 15 of the Rome Statute. [1] By 2016, the Office had “produced a comprehensive database of over 3,000 reported incidents and crimes that allegedly occurred during the 2014 Gaza conflict” |
which even at this point, must have indicated a reasonable basis to proceed.[2]
Today, 20 December 2019, marks over ten years since political representatives from the Government of Palestine on 21 January 2009, signed an Article 12(3) declaration [pdf] submitting the occupied Palestinian territory to the jurisdiction of the ICC. The declaration following at the time, the most heinous Israeli military assault on the Gaza Strip, killing 1,409 Palestinians, including 1,172 civilians of which 342 were children.
In April 2012, after three-years of silence from the Office of the Prosecutor, a mere two-page statement was issued, declining Palestine’s Article 12(3) declaration, on the basis that it was unclear whether Palestine was a State. In the meantime, Israel continued its colonization of Palestine and military offensives on the Gaza Strip, with so-called Operation Protective Edge in 2014, killing [pdf] 2,219 Palestinians, including 1,545 civilians of which 550 were children, in 51-days of heavy Israeli bombardments and shelling of densely populated civilian Palestinian areas.
However, since Palestine’s well-publicized recognition as a non-member observer State to the United Nations (UN) under General Assembly Resolution 67/19 in 2012, these issues have largely been put to rest. It must be noted, that even prior to recognition as a non-member UN observer State, Palestine was recognized by over 130 governments [pdf] in their bilateral relations as a State.
In the meantime, Palestine has acceded to the Rome Statute, became a member of the Assembly of States Parties of the International Criminal Court, acceded without reservation to seven international human rights treaties and four Optional Protocols, and has to date submitted two State reports to the Committee on the Elimination of Discrimination Against Women (CEDAW), and to the Committee on the Elimination of Racism (CERD). While the deposit by the State of Palestine of instruments of ratification to over 60 international treaties has been met with little objection by the international community of States, including declarations [pdf] on maritime delimitation.
Further, on 28 September 2018, the State of Palestine instituted contentious proceedings [pdf] against the United States of America before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with respect to a dispute concerning alleged violations of the Vienna Convention on Diplomatic Relations of 18 April 1961. And in December 2019, the United Nations Committee for the Elimination of Racial Discrimination, affirmed jurisdiction over the inter-state communication submitted by the State of Palestine against Israel for its failures and breaches under the Convention for the Elimination of All Forms of Racial Discrimination.
Notwithstanding, in her recent December 5th ‘Report on Preliminary Examination Activities 2019’, the Office of the Prosecutor, outlined that the situation in Palestine “raised a number of unique challenges” and that before coming to a determination under Article 53(1)(a), the issue of “exercise of territorial jurisdiction by the Court” would need to be resolved. [3]
This echoed the previous 2018 Report from the Office of the Prosecutor on Preliminary Examination Activities, which again cautioned that the “situation in Palestine has raised specific challenges relating to both factual and legal determinations”. [4] In respect of the latter, the Court would consider challenges to the Courts jurisdiction and the “scope of any such jurisdiction”.[5] In 2017, the Office of the Prosecutor, declared that “during the reporting period, the Office has continued to consider relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.”[6]
Despite this welcome development, our organisations question why the Office of the Prosecutor delayed for so many years in addressing such a seemingly integral question on territorial jurisdiction, especially as it was raised year after year since 2015, in each OTP Report on Preliminary
Activities. More precisely, the examination of preconditions to the exercise of jurisdiction, is usually considered a “first stage”[7] issue in preliminary examinations, and it is questionable why now, after five years, and after the Office of the Prosecutor had progressed by 2018 to “an advanced stage of its assessment of statutory criteria for a determination”[8], the question of territorial jurisdiction has only now come to the fore? Further, our organisations note with concern, that since the State of Palestine referral in 2018, the Prosecutor had full competence to proceed to investigation, without any need to seek the authorization of the Pre-Trial Chamber and should have done so, with confidence and without delay.
We submit that the questions posed to the PTC hark back to an earlier less palatable era. In November 2009, Al-Haq was informed by the then representatives from the Office of the Prosecutor that “complex legal issues” needed to be resolved, such as whether [pdf] “the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the Court meets the necessary statutory requirements.” In December 2019, at the launch of the 2019 Report, Prosecutor Fatou Bensouda again informed that there were outstanding “complex” issues, which needed to be resolved in relation to the Palestine situation.
At this level, it hardly needs pointing out that territories under occupation [pdf], retain full sovereignty, which is merely temporarily de facto suspended and during which time, the Occupying Power exercises limited rights of administration over the territory and does not have rights of sovereignty. To deduce otherwise, would mean that every Occupying Power, has in fact annexed the territories that they occupy, a position inconsistent with basic jus cogens principles prohibiting acquisition of territory through use of force. Meanwhile, the occupied population, maintain rights of self-determination and permanent sovereignty over national and natural resources.
In terms of the territory of the State of Palestine, it is well established that the territories occupied since 1967, are the territories beyond the Green Line. In fact, according to the State of Palestine, “the June 4, 1967 border, also known as green line, is the internationally recognized border between the occupied Palestinian territory (i.e. West Bank, including East Jerusalem, and Gaza Strip) and the State of Israel.”
In this vein, United Nations Security Council Resolution 2334 (2016) calls on States [pdf]“to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. The resolution which is internationally legally binding, further states that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”.
This position is supported by numerous international findings including inter alia the United Nations Commission of Inquiry[9], the Secretary General’s Fact Finding Mission, UNESCO,[10] and the Advisory Opinion of the International Court of Justice where the ICJ concluded, “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.[11] In addition to this, Palestine’s reports to the UN Treaty-Monitoring Bodies under the core human rights treaties that Palestine acceded to in 2014 cover all of the occupied territory since 1967 including area C, where Israeli settlements are located, in spite of the fact that this area is under Israel’s full control.
While the Oslo Accords provided for Israel’s temporary territorial jurisdiction over the settlements and functional jurisdiction over settlers, sovereignty still vested de jure in Palestine.
The temporary five-year arrangement under Oslo in no way negates the underlying illegality of the settlement enterprise, constructed on public and private lands unlawfully appropriated from Palestinians, the destruction of Palestinian properties, forcible transfer of the protected Palestinian population and unlawful transfer in of nationals of the Occupying Power, thereby altering the demography of the occupied territory to manipulate a Jewish majority, while erasing Palestinian presence.
As such, the Oslo Accords were a temporary administrative measure, implemented for what was intended to be a five-year transitional period, which ended in 1999. In addition, many of the provisions concluded between the PLO and Israel, violate provisions of the Geneva Conventions, and these agreements are therefore in breach of Article 47 of the Fourth Geneva Convention, which alongside Articles 7 and 8 of Fourth Geneva Convention, protect the occupied population from special agreements concluded between the Occupying Power and their political representatives in breach of minimum rights enshrined in the Geneva Conventions, including the annexation of occupied territory.
Further, Palestinian President Mahmoud Abbas has publicly confirmed that the Oslo Accords are no longer binding given Israel’s bad faith in failing to conclude the peace process and transition power to Palestine in the five year transitional phase, now over a quarter of a century ago.
Following this, in 2019 the Palestinian Ministry of Local Government issued a circular calling on all local authorities to exercise their powers and responsibilities in all areas of the occupied territory, regardless of artificial Israeli imposed classifications regarding Areas A, B and C. This included plans by the Palestinian Authority to progress the issuing of building permits to Palestinians in all parts of the occupied territory, now considered under full Palestinian jurisdiction.
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC, that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory.
To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation.
This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Al-Haq, Al-Mezan and PCHR continue to support the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law.
Our organisations maintain that only through justice will there be peace in Palestine. On behalf of the Palestinian victims that we represent, we urge in the interests of justice, that an impartial and transparent investigation is opened without delay, where the senior Israeli politicians and military commanders who through their policies and plans have perpetrated grave crimes against the Palestinian people, are held to account
————————————-
[1] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[2] The Office of the Prosecutor, “Report on Preliminary Examination Activities 2016” para 138, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
[3] https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf
[4] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), para. 268, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[5] Ibid.
[6] Office of the Prosecutor, “Report on Preliminary Examination Activities 2017” (4 December 2017), para. 72, available at: https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf
[7] International Criminal Court, “Situation in Palestine” (3 April 2012) para 3, available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
[8] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018) para. 282, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[9] A/HRC/40/CRP.2, “Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory” para. 138.
[10] Decision : 43 COM 7A.29 Hebron/Al-Khalil Old Town (Palestine) (C 1565), “Deplores the ongoing Israeli excavations, works, construction of private roads for settlers and of a Wall inside the Old City of Al-Khalil/Hebron which are illegal under international law and harmfully affect the authenticity and integrity of the site, and the subsequent denial of freedom of movement and freedom of access to places of worship and asks Israel, the occupying Power, to end all violations which are not in conformity with the provisions of relevant UNESCO conventions, resolutions and decisions.”
[11] “Legal Consequences of the Construction of a Wall In the Occcupied Palestinian Territory Advisory Opinion Of 9 July 2004” I. C.J. Reports 2004, p. 136, para. 120, available at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf
Today, 20 December 2019, marks over ten years since political representatives from the Government of Palestine on 21 January 2009, signed an Article 12(3) declaration [pdf] submitting the occupied Palestinian territory to the jurisdiction of the ICC. The declaration following at the time, the most heinous Israeli military assault on the Gaza Strip, killing 1,409 Palestinians, including 1,172 civilians of which 342 were children.
In April 2012, after three-years of silence from the Office of the Prosecutor, a mere two-page statement was issued, declining Palestine’s Article 12(3) declaration, on the basis that it was unclear whether Palestine was a State. In the meantime, Israel continued its colonization of Palestine and military offensives on the Gaza Strip, with so-called Operation Protective Edge in 2014, killing [pdf] 2,219 Palestinians, including 1,545 civilians of which 550 were children, in 51-days of heavy Israeli bombardments and shelling of densely populated civilian Palestinian areas.
However, since Palestine’s well-publicized recognition as a non-member observer State to the United Nations (UN) under General Assembly Resolution 67/19 in 2012, these issues have largely been put to rest. It must be noted, that even prior to recognition as a non-member UN observer State, Palestine was recognized by over 130 governments [pdf] in their bilateral relations as a State.
In the meantime, Palestine has acceded to the Rome Statute, became a member of the Assembly of States Parties of the International Criminal Court, acceded without reservation to seven international human rights treaties and four Optional Protocols, and has to date submitted two State reports to the Committee on the Elimination of Discrimination Against Women (CEDAW), and to the Committee on the Elimination of Racism (CERD). While the deposit by the State of Palestine of instruments of ratification to over 60 international treaties has been met with little objection by the international community of States, including declarations [pdf] on maritime delimitation.
Further, on 28 September 2018, the State of Palestine instituted contentious proceedings [pdf] against the United States of America before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with respect to a dispute concerning alleged violations of the Vienna Convention on Diplomatic Relations of 18 April 1961. And in December 2019, the United Nations Committee for the Elimination of Racial Discrimination, affirmed jurisdiction over the inter-state communication submitted by the State of Palestine against Israel for its failures and breaches under the Convention for the Elimination of All Forms of Racial Discrimination.
Notwithstanding, in her recent December 5th ‘Report on Preliminary Examination Activities 2019’, the Office of the Prosecutor, outlined that the situation in Palestine “raised a number of unique challenges” and that before coming to a determination under Article 53(1)(a), the issue of “exercise of territorial jurisdiction by the Court” would need to be resolved. [3]
This echoed the previous 2018 Report from the Office of the Prosecutor on Preliminary Examination Activities, which again cautioned that the “situation in Palestine has raised specific challenges relating to both factual and legal determinations”. [4] In respect of the latter, the Court would consider challenges to the Courts jurisdiction and the “scope of any such jurisdiction”.[5] In 2017, the Office of the Prosecutor, declared that “during the reporting period, the Office has continued to consider relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.”[6]
Despite this welcome development, our organisations question why the Office of the Prosecutor delayed for so many years in addressing such a seemingly integral question on territorial jurisdiction, especially as it was raised year after year since 2015, in each OTP Report on Preliminary
Activities. More precisely, the examination of preconditions to the exercise of jurisdiction, is usually considered a “first stage”[7] issue in preliminary examinations, and it is questionable why now, after five years, and after the Office of the Prosecutor had progressed by 2018 to “an advanced stage of its assessment of statutory criteria for a determination”[8], the question of territorial jurisdiction has only now come to the fore? Further, our organisations note with concern, that since the State of Palestine referral in 2018, the Prosecutor had full competence to proceed to investigation, without any need to seek the authorization of the Pre-Trial Chamber and should have done so, with confidence and without delay.
We submit that the questions posed to the PTC hark back to an earlier less palatable era. In November 2009, Al-Haq was informed by the then representatives from the Office of the Prosecutor that “complex legal issues” needed to be resolved, such as whether [pdf] “the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the Court meets the necessary statutory requirements.” In December 2019, at the launch of the 2019 Report, Prosecutor Fatou Bensouda again informed that there were outstanding “complex” issues, which needed to be resolved in relation to the Palestine situation.
At this level, it hardly needs pointing out that territories under occupation [pdf], retain full sovereignty, which is merely temporarily de facto suspended and during which time, the Occupying Power exercises limited rights of administration over the territory and does not have rights of sovereignty. To deduce otherwise, would mean that every Occupying Power, has in fact annexed the territories that they occupy, a position inconsistent with basic jus cogens principles prohibiting acquisition of territory through use of force. Meanwhile, the occupied population, maintain rights of self-determination and permanent sovereignty over national and natural resources.
In terms of the territory of the State of Palestine, it is well established that the territories occupied since 1967, are the territories beyond the Green Line. In fact, according to the State of Palestine, “the June 4, 1967 border, also known as green line, is the internationally recognized border between the occupied Palestinian territory (i.e. West Bank, including East Jerusalem, and Gaza Strip) and the State of Israel.”
In this vein, United Nations Security Council Resolution 2334 (2016) calls on States [pdf]“to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. The resolution which is internationally legally binding, further states that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”.
This position is supported by numerous international findings including inter alia the United Nations Commission of Inquiry[9], the Secretary General’s Fact Finding Mission, UNESCO,[10] and the Advisory Opinion of the International Court of Justice where the ICJ concluded, “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.[11] In addition to this, Palestine’s reports to the UN Treaty-Monitoring Bodies under the core human rights treaties that Palestine acceded to in 2014 cover all of the occupied territory since 1967 including area C, where Israeli settlements are located, in spite of the fact that this area is under Israel’s full control.
While the Oslo Accords provided for Israel’s temporary territorial jurisdiction over the settlements and functional jurisdiction over settlers, sovereignty still vested de jure in Palestine.
The temporary five-year arrangement under Oslo in no way negates the underlying illegality of the settlement enterprise, constructed on public and private lands unlawfully appropriated from Palestinians, the destruction of Palestinian properties, forcible transfer of the protected Palestinian population and unlawful transfer in of nationals of the Occupying Power, thereby altering the demography of the occupied territory to manipulate a Jewish majority, while erasing Palestinian presence.
As such, the Oslo Accords were a temporary administrative measure, implemented for what was intended to be a five-year transitional period, which ended in 1999. In addition, many of the provisions concluded between the PLO and Israel, violate provisions of the Geneva Conventions, and these agreements are therefore in breach of Article 47 of the Fourth Geneva Convention, which alongside Articles 7 and 8 of Fourth Geneva Convention, protect the occupied population from special agreements concluded between the Occupying Power and their political representatives in breach of minimum rights enshrined in the Geneva Conventions, including the annexation of occupied territory.
Further, Palestinian President Mahmoud Abbas has publicly confirmed that the Oslo Accords are no longer binding given Israel’s bad faith in failing to conclude the peace process and transition power to Palestine in the five year transitional phase, now over a quarter of a century ago.
Following this, in 2019 the Palestinian Ministry of Local Government issued a circular calling on all local authorities to exercise their powers and responsibilities in all areas of the occupied territory, regardless of artificial Israeli imposed classifications regarding Areas A, B and C. This included plans by the Palestinian Authority to progress the issuing of building permits to Palestinians in all parts of the occupied territory, now considered under full Palestinian jurisdiction.
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC, that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory.
To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation.
This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Al-Haq, Al-Mezan and PCHR continue to support the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law.
Our organisations maintain that only through justice will there be peace in Palestine. On behalf of the Palestinian victims that we represent, we urge in the interests of justice, that an impartial and transparent investigation is opened without delay, where the senior Israeli politicians and military commanders who through their policies and plans have perpetrated grave crimes against the Palestinian people, are held to account
————————————-
[1] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[2] The Office of the Prosecutor, “Report on Preliminary Examination Activities 2016” para 138, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
[3] https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf
[4] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), para. 268, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[5] Ibid.
[6] Office of the Prosecutor, “Report on Preliminary Examination Activities 2017” (4 December 2017), para. 72, available at: https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf
[7] International Criminal Court, “Situation in Palestine” (3 April 2012) para 3, available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
[8] Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018) para. 282, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
[9] A/HRC/40/CRP.2, “Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory” para. 138.
[10] Decision : 43 COM 7A.29 Hebron/Al-Khalil Old Town (Palestine) (C 1565), “Deplores the ongoing Israeli excavations, works, construction of private roads for settlers and of a Wall inside the Old City of Al-Khalil/Hebron which are illegal under international law and harmfully affect the authenticity and integrity of the site, and the subsequent denial of freedom of movement and freedom of access to places of worship and asks Israel, the occupying Power, to end all violations which are not in conformity with the provisions of relevant UNESCO conventions, resolutions and decisions.”
[11] “Legal Consequences of the Construction of a Wall In the Occcupied Palestinian Territory Advisory Opinion Of 9 July 2004” I. C.J. Reports 2004, p. 136, para. 120, available at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf
The Israeli air force fired, on Friday at dawn, several missiles into a few areas in the besieged Gaza Strip, causing damage.
The army claimed it was retaliating to one shell reportedly fired from the coastal region.
Media sources in Gaza said the army fired at least two missiles into Asqalan site, run by the al-Qassam Brigades the armed wing of Hamas, northwest of Beit Lahia, in the northern part of the Gaza Strip.
They added that an Israeli drone fired at least one missile into a land, east of Rafah city, in the southern part of the coastal region.
Hours later, the army fired two more missiles into Palestinian lands, south of Rafah.
Furthermore, Palestinian resistance fighters fired live rounds at Israeli drones flying over several parts of the Gaza Strip.
The Israeli army claimed that a shell was fired from Gaza, on Thursday at night, and landed in an open area in one of its colonies.
The army added that it targeted infrastructure “belonging to Hamas movement in southern Gaza, and one of its military compounds in northern Gaza.”
The army claimed it was retaliating to one shell reportedly fired from the coastal region.
Media sources in Gaza said the army fired at least two missiles into Asqalan site, run by the al-Qassam Brigades the armed wing of Hamas, northwest of Beit Lahia, in the northern part of the Gaza Strip.
They added that an Israeli drone fired at least one missile into a land, east of Rafah city, in the southern part of the coastal region.
Hours later, the army fired two more missiles into Palestinian lands, south of Rafah.
Furthermore, Palestinian resistance fighters fired live rounds at Israeli drones flying over several parts of the Gaza Strip.
The Israeli army claimed that a shell was fired from Gaza, on Thursday at night, and landed in an open area in one of its colonies.
The army added that it targeted infrastructure “belonging to Hamas movement in southern Gaza, and one of its military compounds in northern Gaza.”
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Truce violations List of names Pictures of martyrs
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July: 31 - 30 - 29 - 28 - 27 - 26 - 25 - 24 - 23 - 22 - 21 - 20 - 19 - 18 - 17 - 16 - 15 - 14 - 13 - 12 - 11 - 10 - 9 - 8
