15 july 2016
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Forensic Architecture – The Gaza platform is an innovative new tool being used to investigate human rights abuses. Amnesty International commissioned Goldsmiths University’s Forensic Architecture department to build a unique database using all available satellite imagery, broadcast news and citizen generated footage, stills, tweets, press reports and releases etc generated during the 50 days of the Gaza Conflict 2014 to build a definitive picture of what happened minute by minute, hour by hour, day by day as a way of investigating war crimes.
The aim to identify trends and patterns in the military strategy to counter Prime Minister Benjamin Netanyahu‘s statement to the United Nations that Israel had done “everything possible to minimise Palestinian civilian casualties”. |
Amnesty International’s conclusions on Israeli human rights abuses, during the 2014 attack on the Gaza Strip:
“Amnesty International investigated a number of cases where large numbers of people from the same family have died. So, in one case for example, Abu Jame’ family, in Khan Younis. There were 24 members of the family in the home. And, as they were preparing to break their fast during the month of Ramadan, one fighter, who was fleeing an area of fighting, had come and hid underneath a balcony outside of the home. Now, Israel bombed the house and killed 24 people in it. That attack is clearly disproportionate.”
“Amnesty International investigated a number of cases where large numbers of people from the same family have died. So, in one case for example, Abu Jame’ family, in Khan Younis. There were 24 members of the family in the home. And, as they were preparing to break their fast during the month of Ramadan, one fighter, who was fleeing an area of fighting, had come and hid underneath a balcony outside of the home. Now, Israel bombed the house and killed 24 people in it. That attack is clearly disproportionate.”
The Higher National Committee to Follow up with the International Criminal Court (ICC) convened for a meeting on Thursday to discuss the Palestinian efforts to prosecute Israeli war criminals at the international tribunal.
The meeting highlighted Palestine's recent ratification of the Kampala amendments to the Rome Statute of the ICC, which defines the crime of aggression more broadly.
According to the Kampala amendments, the crime of aggression includes invading another state, bombing another state, blockading the ports or coastlines of another state, violating a status of forces agreement; and using armed bands, groups, irregulars or mercenaries against another state.
The meeting, which was chaired by Saeb Erekat, secretary-general of the Executive Committee of the Palestine Liberation Organization (PLO), also discussed the serious development related to the recent statement of the Middle East Quartet on the situation in Palestine.
In a press release following the meeting, spokesman for the committee Ghazi Hamed reiterated Palestine's condemnation of the Quartet's statement, saying it included grave positions against the Palestinian people's legitimate rights and gave Israel further impunity to persist in its settlement and aggressive policies.
The meeting highlighted Palestine's recent ratification of the Kampala amendments to the Rome Statute of the ICC, which defines the crime of aggression more broadly.
According to the Kampala amendments, the crime of aggression includes invading another state, bombing another state, blockading the ports or coastlines of another state, violating a status of forces agreement; and using armed bands, groups, irregulars or mercenaries against another state.
The meeting, which was chaired by Saeb Erekat, secretary-general of the Executive Committee of the Palestine Liberation Organization (PLO), also discussed the serious development related to the recent statement of the Middle East Quartet on the situation in Palestine.
In a press release following the meeting, spokesman for the committee Ghazi Hamed reiterated Palestine's condemnation of the Quartet's statement, saying it included grave positions against the Palestinian people's legitimate rights and gave Israel further impunity to persist in its settlement and aggressive policies.
8 july 2016
A comprehensive report [PDF] issued by Physicians for Human Rights has addressed the condition of wounded persons residing in the Gaza Strip, and who were left with amputated limbs and who, in many cases, did not receive appropriate medical care following “Operation Protective Edge” [launched by Israel against the Strip in the summer on 2014].
Archive IMEMC video: 09/02/14 Gaza City’s Devastated Al-Shuja’eyya Suburb
In July of 2014, Israel mounted an offense on the Gaza Strip, which included a land-based invasion and bombardment from the air and sea. In the course of the 51 days of fighting there was not one safe place to hide from the attacks. Homes, hospitals, and bomb shelters were directly hit; civilians were no more protected than fighters. More than 2,200 people were killed, and 11,000 were wounded.
02/15/15 AP Investigation: 89% of ‘Protective Edge’ Victims Were Civilians
The summeroffensive on the Gaza Strip produced approximately one hundred new amputees among its residents. The end of the war was the start of a new one for the amputees—a battle to cope with the reality of their new life.
The report, titled, ‘Amputees’ reviews the care and rehabilitation possibilities, primarily in the Gaza Strip, but also in the West Bank, and the obstacles facing the amputees who try to receive care outside the region, according to WAFA. This report is being published alongside the blog #GazaAmputees, which showcases the people behind the numbers and tells the story of eight amputees from the Gaza Strip.
Regarding challenges facing limb amputees in Gaza, the report noted that, they include the amputation itself and the rehabilitation process; the physical conditions in the Gaza Strip, with its poor infrastructures, ruined streets and non-powered elevators; the difficulty eking out a living in a place with a high unemployment rate to begin with, plus other financial burdens related to the costs of treatment and rehabilitation; the loss of their social role before the injury; the psychological trauma following the injury, and having to grapple with it in the absence of a well-organized support system.
About 2.4% of Gaza’s residents, or 42,240 people, live with some form of disability, mostly (47.2%) movement restrictions (not just due to amputation). The military assault added approximately one hundred new amputees to tens of others who were left amputated by previous wars and operations.
Among them are at least 14 women and 10 boys and girls, the youngest of whom was one year old at the time of his injury; the absolute majority of amputees are young people under thirty. Among those injured in the attacks are families with two or more of their members left without limbs.
In seeking rehabilitation treatments, amputees face a host of problems.
Firstly, the Palestinian health system is decentralized, both geographically and in terms of service providers. Geographically, the system is divided between three different regions: the West Bank, East Jerusalem and the Gaza Strip.11 Any movement between these regions requires Israeli authorization; this is not always granted, and even when it is, there are bureaucratic delays and complications involved.
The report concluded that Israel must lift the restrictions and difficulties it imposes on amputees, including facilitating their passage for medical treatment outside the Gaza Strip; and honor its obligation to allow fulfillment of the right to health as defined by international law, and grant medical care to injured individuals who need it.
Archive IMEMC video: 09/02/14 Gaza City’s Devastated Al-Shuja’eyya Suburb
In July of 2014, Israel mounted an offense on the Gaza Strip, which included a land-based invasion and bombardment from the air and sea. In the course of the 51 days of fighting there was not one safe place to hide from the attacks. Homes, hospitals, and bomb shelters were directly hit; civilians were no more protected than fighters. More than 2,200 people were killed, and 11,000 were wounded.
02/15/15 AP Investigation: 89% of ‘Protective Edge’ Victims Were Civilians
The summeroffensive on the Gaza Strip produced approximately one hundred new amputees among its residents. The end of the war was the start of a new one for the amputees—a battle to cope with the reality of their new life.
The report, titled, ‘Amputees’ reviews the care and rehabilitation possibilities, primarily in the Gaza Strip, but also in the West Bank, and the obstacles facing the amputees who try to receive care outside the region, according to WAFA. This report is being published alongside the blog #GazaAmputees, which showcases the people behind the numbers and tells the story of eight amputees from the Gaza Strip.
Regarding challenges facing limb amputees in Gaza, the report noted that, they include the amputation itself and the rehabilitation process; the physical conditions in the Gaza Strip, with its poor infrastructures, ruined streets and non-powered elevators; the difficulty eking out a living in a place with a high unemployment rate to begin with, plus other financial burdens related to the costs of treatment and rehabilitation; the loss of their social role before the injury; the psychological trauma following the injury, and having to grapple with it in the absence of a well-organized support system.
About 2.4% of Gaza’s residents, or 42,240 people, live with some form of disability, mostly (47.2%) movement restrictions (not just due to amputation). The military assault added approximately one hundred new amputees to tens of others who were left amputated by previous wars and operations.
Among them are at least 14 women and 10 boys and girls, the youngest of whom was one year old at the time of his injury; the absolute majority of amputees are young people under thirty. Among those injured in the attacks are families with two or more of their members left without limbs.
In seeking rehabilitation treatments, amputees face a host of problems.
Firstly, the Palestinian health system is decentralized, both geographically and in terms of service providers. Geographically, the system is divided between three different regions: the West Bank, East Jerusalem and the Gaza Strip.11 Any movement between these regions requires Israeli authorization; this is not always granted, and even when it is, there are bureaucratic delays and complications involved.
The report concluded that Israel must lift the restrictions and difficulties it imposes on amputees, including facilitating their passage for medical treatment outside the Gaza Strip; and honor its obligation to allow fulfillment of the right to health as defined by international law, and grant medical care to injured individuals who need it.
7 july 2016
MK Erel Margalit
A report on the failures of Operation Protective Edge was supposed to come out on the two year anniversary of the war; However, Zionist Union MK Margalit claims that it hasn't been released due to political considerations; Council heads writing report claim that every detail needs to be analyzed.
Friday marks the two year anniversary of since the start of Operation Protective Edge. However, the inquiry document written by the Foreign Ministry and the Ministry of Defense detailing the operation's failures still hasn't been released.
There have been almost 90 Knesset meetings on the subject of the operation which saw 68 soldiers and four civilians killed.
Erel Margalit (Zionist Union) claims that "it's been two years since the operation and the report still hasn't been released. Political interests are keeping the report from being published."
MK Margalit, himself a member of the Foreign Affairs and Defense Committee which is writing the report, sent a letter to Committee Chairman Avi Dichter (Likud) requesting him to call the council into session to discuss releasing the final report.
"Operation Protective Edge was, by all accounts, full of military and political failures," Margalit wrote. "The discussions we had were with high ranking officials, experts, professionals, and also representatives of the families of those who fell in battle. Following the decision to hold elections (in 2015), we haven't held another meeting on the issue."
Dichter: The report isn't a quick trial
The previous council chairman, Minister Tzachi Hanegbi (Likud) responded to these claims, saying "I didn't write a report – I brought my position to the attention of the Knesset chairman, and told him that the IDF leadership and the Israeli political leadership was well aware of the threats posed by the tunnels, and have been working for many years on how to deal with the threat they pose. All the rest is internal political infighting within the Labor party."
Current Council Chairman Avi Dichter said "when I started this position, I took it upon myself to tie up all of the loose ends. I determined which of the issues left on the table were urgent. The issue of Operation Protective Edge is a very difficult issue about which dozens of meetings have bee held, and it's not something which can be finished quickly. The council's staff is working to collect all of the information for me."
Dichter continued, saying "Erel Margalit knows the facts, knows the considerations, and knows exactly how backlogged the council is. He also knows what the priorities of the council are. Margalit is a contrarian and is wasting his time. This isn't something which we can talk about for an hour and be done with. Its something really big, and I want to see the full picture before we work on it. We will eventually have a good schedule for when we will release the report."
A report on the failures of Operation Protective Edge was supposed to come out on the two year anniversary of the war; However, Zionist Union MK Margalit claims that it hasn't been released due to political considerations; Council heads writing report claim that every detail needs to be analyzed.
Friday marks the two year anniversary of since the start of Operation Protective Edge. However, the inquiry document written by the Foreign Ministry and the Ministry of Defense detailing the operation's failures still hasn't been released.
There have been almost 90 Knesset meetings on the subject of the operation which saw 68 soldiers and four civilians killed.
Erel Margalit (Zionist Union) claims that "it's been two years since the operation and the report still hasn't been released. Political interests are keeping the report from being published."
MK Margalit, himself a member of the Foreign Affairs and Defense Committee which is writing the report, sent a letter to Committee Chairman Avi Dichter (Likud) requesting him to call the council into session to discuss releasing the final report.
"Operation Protective Edge was, by all accounts, full of military and political failures," Margalit wrote. "The discussions we had were with high ranking officials, experts, professionals, and also representatives of the families of those who fell in battle. Following the decision to hold elections (in 2015), we haven't held another meeting on the issue."
Dichter: The report isn't a quick trial
The previous council chairman, Minister Tzachi Hanegbi (Likud) responded to these claims, saying "I didn't write a report – I brought my position to the attention of the Knesset chairman, and told him that the IDF leadership and the Israeli political leadership was well aware of the threats posed by the tunnels, and have been working for many years on how to deal with the threat they pose. All the rest is internal political infighting within the Labor party."
Current Council Chairman Avi Dichter said "when I started this position, I took it upon myself to tie up all of the loose ends. I determined which of the issues left on the table were urgent. The issue of Operation Protective Edge is a very difficult issue about which dozens of meetings have bee held, and it's not something which can be finished quickly. The council's staff is working to collect all of the information for me."
Dichter continued, saying "Erel Margalit knows the facts, knows the considerations, and knows exactly how backlogged the council is. He also knows what the priorities of the council are. Margalit is a contrarian and is wasting his time. This isn't something which we can talk about for an hour and be done with. Its something really big, and I want to see the full picture before we work on it. We will eventually have a good schedule for when we will release the report."
5 july 2016
By: Al-Shabaka
Al-Shabaka is an independent non-profit organization whose mission is to educate and foster public debate on Palestinian human rights and self-determination within the framework of international law.
This policy brief is authored by Sarah Kanbar, who previously published “Rooted in Our Homeland: The Construction of Syrian American Identity” in American Multicultural Studies (Sage, 2012) and articles in Muftah and Kalimat Magazine.
It has been over a year since Palestine became a member of the International Criminal Court (ICC) and the ICC’s Office of the Prosecutor (OTP) began its preliminary examination of the “situation in Palestine.” While Israel’s almost complete refusal to cooperate with the ICC on matters related to Palestine has hindered the examination, Israel is not the only impediment to justice being served: The OTP itself has played a key role in stymieing the process.
In November 2015, Chief Prosecutor Fatou Bensouda’s annual Report on Preliminary Examination Activities [PDF](hereafter the Report) provided an update on the status of the preliminary examination. Based on the information in the Report, it remains unclear how the OTP will proceed in its overall aim [PDF] of effectuating “the two overarching goals of the Rome Statute: the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes” in regard to Palestine. Moreover, two elements in the Report -- the OTP’s statement concerning Palestine’s statehood and the potential crimes that have been preliminarily identified -- speak to larger criticisms of the OTP, namely its preoccupation with impartiality and its failure to fulfill victims’ hopes for justice.
These OTP shortcomings may defeat the purpose of the ICC as a forum to assess and adjudicate atrocities occurring in Palestine. Civil society must scrutinize the ICC’s work to ensure that it remains an impartial and apolitical body. Such vigilance will help to bring about accountability and progress in the Palestinian case.
Palestine: A test case for the ICC
The ICC, which began functioning in 2002, is a young and developing judicial body. Thus far, nearly all active cases before the court are situations in African states. The ICC is only starting to engage in other regions via preliminary examinations and investigations. This is reflected in the increasing number of situations referred to the OTP and in the commencement of investigations after the completion of years-long preliminary examinations.
The ICC faces the challenge of limited funding, which puts it in the position of needing financial backing from its member states. The ICC cannot always count on this funding, and even when it receives it, the very fact of its need renders it susceptible to certain states’ political agendas. The ICC is thus at an important juncture in that it must prove itself an impartial body.
At a recent meeting of the ICC’s Assembly of State Parties, the body responsible for the management and oversight of the ICC, members of a Palestinian delegation and civil society representatives expressed the opinion that the ICC’s handling of the Palestinian case will be a particularly significant test for the Court. They cited numerous reasons for the necessity of the ICC to adjudicate crimes in Palestine, including the region’s 60-plus year history of conflict, failed negotiations, and the documentation of human rights violations -- from ongoing on-the-ground NGO (non-governmental organization) reports to the 2004 Advisory Opinion on the Israeli Wall by the International Court of Justice.
Delegates and civil society representatives also asserted that the OTP has a plethora of information that would allow it to finish its examination efficiently, although they acknowledged that Israel has made it difficult to access information related to the 2014 assault on the Gaza Strip. In addition, they voiced their fear that the OTP will succumb to its habit of losing the support of victims -- in this case, Palestinians -- by delaying the examination.
The ICC has been frequently criticized for the fact that victims, who are often vulnerable and have high expectations from the Court, are left disappointed by the ICC’s failure to take action. Upon waiting through the extremely slow process and not receiving a response, victims of atrocity crimes feel abandoned, causing them further distrust of a judicial system that operates under the auspices of its state members.
During a preliminary examination, the OTP studies communications and information to determine if an investigation and prosecution should occur. The Chief Prosecutor’s Report includes such material as the phase of the examination and the data being reviewed. The OTP does not act in an investigative capacity when it conducts a preliminary examination. It undertakes a review and simply determines whether a situation falls within the parameters of Article 53 of the Rome Statute, which initiates an investigation unless the Chief Prosecutor determines there is no “reasonable basis” to proceed. The Rome Statute does not provide a time frame in which the OTP must complete a preliminary examination, and additional information may be considered after an examination begins. It thus may take years before an investigation is recommended or the OTP declines to proceed.
There are two criticisms one can make of the ICC based on the Report. The first is that the OTP’s preoccupation with appearing impartial has only delayed the preliminary examination and caused the OTP to reach beyond its scope as regards the question of Palestinian statehood, an issue that was a focus of the previous chief prosecutor. Second, through its consideration of Israeli crimes against humanity and war crimes, the ICC may reveal itself to be just another international organization that will disappoint Palestinians with its failure to take action against Israel and hold it accountable.
The OTP’s report and the question of statehood
It is worth recalling that, after 2009, when the Palestinian Authority first submitted [PDF] an Article 12(3) Declaration to the ICC, which expresses acceptance of the Court’s jurisdiction, the OTP sidestepped a preliminary examination of Palestine because it did not consider it a “state.” In the first ever [PDF] Report on Preliminary Examination Activities in 2011, the OTP wrote that it needed a determination on Palestine’s statehood for Palestine to be able to lodge the declaration. In the following year’s Report [PDF], the OTP concluded that only an international organization like the United Nations could ascertain whether Palestine is a state. It therefore again declined to proceed with a preliminary examination until that determination was made.
This delay was strongly criticized, particularly because the OTP’s scope of work does not include posing legal questions about statehood for the purposes of the declaration. Further, there were other options available to determine whether Palestine could file a declaration or even accede to the Rome Statute, such as a referral to the Pre-Trial Chamber, which has the authority to issue a decision.
A different stance concerning Palestinian statehood then appeared in the 2015 Report. Chief Prosecutor Bensouda affirmed that a determination by the United Nations regarding Palestine’s status at the UN was necessary to decide whether Palestine can accede to the Rome Statute. But she then wrote that the OTP had determined that Palestine may file a declaration under Article 12(3) using UN General Assembly Resolution 67/19 as the basis for the decision (The resolution had upgraded Palestine to the status of non-member observer in 2012.). However, Bensouda also indicated that the ICC might still challenge statehood on the grounds of territorial or personal jurisdiction.
Yet, as many scholars and experts have argued, the OTP is not empowered to make a decision such as determining statehood. Instead of proclaiming that Palestine is a state and can therefore file an Article 12(3) Declaration or accede to the Rome Statute, the OTP could have concluded that Palestine can file a declaration because it meets the preconditions provided in Article 12 of the Rome Statute. This article allows a non-state member to consent to the ICC’s exercise of jurisdiction for a crime that falls under the ICC’s subject matter jurisdiction. Essentially, claiming that Palestine can act as a state for the purpose of an Article 12(3) declaration exceeds the OTP’s limited authority.
It is possible that the OTP’s pronouncement of Palestine’s statehood was Bensouda’s good-faith effort to compensate for the needless exercise begun by the previous chief prosecutor. Yet the statehood pronouncement also indicates an OTP weakness, namely a preoccupation with appearing impartial. By making the pronouncement, the OTP overcompensated and stepped out of bounds rather than accepting that Palestine could lodge an Article 12(3) declaration because it meets the required criteria imposed by Article 12. This preoccupation will likely continue to impede the OTP’s ability to complete an examination efficiently.
Israeli crimes and OTP jurisdiction
The 2015 Report is still a positive step in that submissions documenting various crimes in Palestine are finally under review. The OTP is currently in the second phase of the examination, during which it must determine if there are crimes that fall within the ICC’s subject matter jurisdiction -- specifically crimes against humanity and war crimes.
Crimes against humanity are defined under Article 7 of the Rome Statute [PDF]. Many types of acts are included in the definition, though the description of the intention under which they are committed is specific. While the definition may include many violations by Israel, the determination is left to the OTP. War crimes, under Article 8 [PDF], are more extensively delineated and require an armed conflict, grave breaches of the Geneva Conventions, or violations of the laws and customs of war.
The OTP indicated in the Report that it is reviewing information concerning alleged crimes committed in Gaza, the West Bank, and East Jerusalem by both Palestinian armed groups and the Israeli Defense Forces. It is considering Palestinian armed groups’ indiscriminate firing of rockets and mortars toward Israel, launching attacks from civilian locations, using civilian locations for military purposes, and executing Palestinians who allegedly collaborated with Israel. The OTP is also reviewing material about crimes committed by the Israeli Defense Forces in Gaza during the 2014 assault on the Strip, such as directing attacks against civilian residential buildings and infrastructure, as well as UN buildings, hospitals, and schools. These allegations include bombardments against such densely populated civilian areas as Al-Shujayya and Khazaa.
It is uncertain whether the OTP will conclude that these crimes -- particularly crimes against humanity -- fall within its subject matter jurisdiction. For example, some of the crimes against humanity in question, such as apartheid, are issues of first impression, that is, legal issues with no precedent for the ICC. This means that the ICC has no example upon which to draw, rendering the outcome unpredictable.
Chief Prosecutor Bensouda has also indicated that the OTP has information concerning settlement violence and the treatment of Palestinians in Israeli prisons and the military court system. These also may not necessarily constitute crimes against humanity and thus may not fall under the ICC’s jurisdiction. Moreover, information about the Israeli court system could either provide an impetus for an ICC intervention or a judgment that the Israeli judicial system is capable of fairly trying cases. Because the ICC is a court of last resort, part of its goal is to encourage national proceedings. If the OTP determines that Israel can adjudicate these crimes fairly, then the OTP could also conclude that it does not need to proceed with an investigation -- and Israel will again not be held to account.
The ICC itself at the bar
The benefit of having a judicial body like the ICC is that it grants victims of long-standing atrocity crimes the opportunity to present a case. The March 2016 conviction of former Bosnian Serb politician Radovan Karadzic for war crimes committed against Bosnian Muslims is a reminder of the potential of international criminal tribunals. Palestine appears to be the ultimate test case for the ICC to determine whether it can continue as a forum to prevent impunity and hold the highest-level perpetrators accountable, or if it will ultimately fail because it bends to political influence.
Though less than half of Palestinian refugees believe the ICC will provide a durable solution, the OTP is bound to continue its preliminary examination of Palestine. If it identifies potential crimes such as apartheid or even the treatment of minors in military courts but fails to follow up, Palestinians will be left without any recourse and will be reminded of how international organizations are ineffective at finding a just resolution to conflict. What is more, Israel will continue to act with impunity. But if the ICC uses the law as a mechanism for change and brings about national accountability, it will not only be a major success for Palestinians. It will also be a success for the ICC in that it would prove its competence and ability to not be swayed by outside pressures.
International justice organizations and Palestinian organizations should continue to monitor the ICC and the OTP’s work, scrutinizing decisions as they are made. Palestinian officials must also continue to treat the ICC as a non-politicized body and avoid the temptation to use it as a tool to reaffirm statehood. Despite the ICC’s ability to be swayed by politics, there is still hope that the Court can hold Israeli officials accountable for their crimes -- though such a result may take many years. While Palestine is in for a long journey with the ICC, it will hopefully be one with a just destination.
The views expressed in this article are the authors’ and do not necessarily reflect Ma'an News Agency's editorial policy.
Al-Shabaka is an independent non-profit organization whose mission is to educate and foster public debate on Palestinian human rights and self-determination within the framework of international law.
This policy brief is authored by Sarah Kanbar, who previously published “Rooted in Our Homeland: The Construction of Syrian American Identity” in American Multicultural Studies (Sage, 2012) and articles in Muftah and Kalimat Magazine.
It has been over a year since Palestine became a member of the International Criminal Court (ICC) and the ICC’s Office of the Prosecutor (OTP) began its preliminary examination of the “situation in Palestine.” While Israel’s almost complete refusal to cooperate with the ICC on matters related to Palestine has hindered the examination, Israel is not the only impediment to justice being served: The OTP itself has played a key role in stymieing the process.
In November 2015, Chief Prosecutor Fatou Bensouda’s annual Report on Preliminary Examination Activities [PDF](hereafter the Report) provided an update on the status of the preliminary examination. Based on the information in the Report, it remains unclear how the OTP will proceed in its overall aim [PDF] of effectuating “the two overarching goals of the Rome Statute: the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes” in regard to Palestine. Moreover, two elements in the Report -- the OTP’s statement concerning Palestine’s statehood and the potential crimes that have been preliminarily identified -- speak to larger criticisms of the OTP, namely its preoccupation with impartiality and its failure to fulfill victims’ hopes for justice.
These OTP shortcomings may defeat the purpose of the ICC as a forum to assess and adjudicate atrocities occurring in Palestine. Civil society must scrutinize the ICC’s work to ensure that it remains an impartial and apolitical body. Such vigilance will help to bring about accountability and progress in the Palestinian case.
Palestine: A test case for the ICC
The ICC, which began functioning in 2002, is a young and developing judicial body. Thus far, nearly all active cases before the court are situations in African states. The ICC is only starting to engage in other regions via preliminary examinations and investigations. This is reflected in the increasing number of situations referred to the OTP and in the commencement of investigations after the completion of years-long preliminary examinations.
The ICC faces the challenge of limited funding, which puts it in the position of needing financial backing from its member states. The ICC cannot always count on this funding, and even when it receives it, the very fact of its need renders it susceptible to certain states’ political agendas. The ICC is thus at an important juncture in that it must prove itself an impartial body.
At a recent meeting of the ICC’s Assembly of State Parties, the body responsible for the management and oversight of the ICC, members of a Palestinian delegation and civil society representatives expressed the opinion that the ICC’s handling of the Palestinian case will be a particularly significant test for the Court. They cited numerous reasons for the necessity of the ICC to adjudicate crimes in Palestine, including the region’s 60-plus year history of conflict, failed negotiations, and the documentation of human rights violations -- from ongoing on-the-ground NGO (non-governmental organization) reports to the 2004 Advisory Opinion on the Israeli Wall by the International Court of Justice.
Delegates and civil society representatives also asserted that the OTP has a plethora of information that would allow it to finish its examination efficiently, although they acknowledged that Israel has made it difficult to access information related to the 2014 assault on the Gaza Strip. In addition, they voiced their fear that the OTP will succumb to its habit of losing the support of victims -- in this case, Palestinians -- by delaying the examination.
The ICC has been frequently criticized for the fact that victims, who are often vulnerable and have high expectations from the Court, are left disappointed by the ICC’s failure to take action. Upon waiting through the extremely slow process and not receiving a response, victims of atrocity crimes feel abandoned, causing them further distrust of a judicial system that operates under the auspices of its state members.
During a preliminary examination, the OTP studies communications and information to determine if an investigation and prosecution should occur. The Chief Prosecutor’s Report includes such material as the phase of the examination and the data being reviewed. The OTP does not act in an investigative capacity when it conducts a preliminary examination. It undertakes a review and simply determines whether a situation falls within the parameters of Article 53 of the Rome Statute, which initiates an investigation unless the Chief Prosecutor determines there is no “reasonable basis” to proceed. The Rome Statute does not provide a time frame in which the OTP must complete a preliminary examination, and additional information may be considered after an examination begins. It thus may take years before an investigation is recommended or the OTP declines to proceed.
There are two criticisms one can make of the ICC based on the Report. The first is that the OTP’s preoccupation with appearing impartial has only delayed the preliminary examination and caused the OTP to reach beyond its scope as regards the question of Palestinian statehood, an issue that was a focus of the previous chief prosecutor. Second, through its consideration of Israeli crimes against humanity and war crimes, the ICC may reveal itself to be just another international organization that will disappoint Palestinians with its failure to take action against Israel and hold it accountable.
The OTP’s report and the question of statehood
It is worth recalling that, after 2009, when the Palestinian Authority first submitted [PDF] an Article 12(3) Declaration to the ICC, which expresses acceptance of the Court’s jurisdiction, the OTP sidestepped a preliminary examination of Palestine because it did not consider it a “state.” In the first ever [PDF] Report on Preliminary Examination Activities in 2011, the OTP wrote that it needed a determination on Palestine’s statehood for Palestine to be able to lodge the declaration. In the following year’s Report [PDF], the OTP concluded that only an international organization like the United Nations could ascertain whether Palestine is a state. It therefore again declined to proceed with a preliminary examination until that determination was made.
This delay was strongly criticized, particularly because the OTP’s scope of work does not include posing legal questions about statehood for the purposes of the declaration. Further, there were other options available to determine whether Palestine could file a declaration or even accede to the Rome Statute, such as a referral to the Pre-Trial Chamber, which has the authority to issue a decision.
A different stance concerning Palestinian statehood then appeared in the 2015 Report. Chief Prosecutor Bensouda affirmed that a determination by the United Nations regarding Palestine’s status at the UN was necessary to decide whether Palestine can accede to the Rome Statute. But she then wrote that the OTP had determined that Palestine may file a declaration under Article 12(3) using UN General Assembly Resolution 67/19 as the basis for the decision (The resolution had upgraded Palestine to the status of non-member observer in 2012.). However, Bensouda also indicated that the ICC might still challenge statehood on the grounds of territorial or personal jurisdiction.
Yet, as many scholars and experts have argued, the OTP is not empowered to make a decision such as determining statehood. Instead of proclaiming that Palestine is a state and can therefore file an Article 12(3) Declaration or accede to the Rome Statute, the OTP could have concluded that Palestine can file a declaration because it meets the preconditions provided in Article 12 of the Rome Statute. This article allows a non-state member to consent to the ICC’s exercise of jurisdiction for a crime that falls under the ICC’s subject matter jurisdiction. Essentially, claiming that Palestine can act as a state for the purpose of an Article 12(3) declaration exceeds the OTP’s limited authority.
It is possible that the OTP’s pronouncement of Palestine’s statehood was Bensouda’s good-faith effort to compensate for the needless exercise begun by the previous chief prosecutor. Yet the statehood pronouncement also indicates an OTP weakness, namely a preoccupation with appearing impartial. By making the pronouncement, the OTP overcompensated and stepped out of bounds rather than accepting that Palestine could lodge an Article 12(3) declaration because it meets the required criteria imposed by Article 12. This preoccupation will likely continue to impede the OTP’s ability to complete an examination efficiently.
Israeli crimes and OTP jurisdiction
The 2015 Report is still a positive step in that submissions documenting various crimes in Palestine are finally under review. The OTP is currently in the second phase of the examination, during which it must determine if there are crimes that fall within the ICC’s subject matter jurisdiction -- specifically crimes against humanity and war crimes.
Crimes against humanity are defined under Article 7 of the Rome Statute [PDF]. Many types of acts are included in the definition, though the description of the intention under which they are committed is specific. While the definition may include many violations by Israel, the determination is left to the OTP. War crimes, under Article 8 [PDF], are more extensively delineated and require an armed conflict, grave breaches of the Geneva Conventions, or violations of the laws and customs of war.
The OTP indicated in the Report that it is reviewing information concerning alleged crimes committed in Gaza, the West Bank, and East Jerusalem by both Palestinian armed groups and the Israeli Defense Forces. It is considering Palestinian armed groups’ indiscriminate firing of rockets and mortars toward Israel, launching attacks from civilian locations, using civilian locations for military purposes, and executing Palestinians who allegedly collaborated with Israel. The OTP is also reviewing material about crimes committed by the Israeli Defense Forces in Gaza during the 2014 assault on the Strip, such as directing attacks against civilian residential buildings and infrastructure, as well as UN buildings, hospitals, and schools. These allegations include bombardments against such densely populated civilian areas as Al-Shujayya and Khazaa.
It is uncertain whether the OTP will conclude that these crimes -- particularly crimes against humanity -- fall within its subject matter jurisdiction. For example, some of the crimes against humanity in question, such as apartheid, are issues of first impression, that is, legal issues with no precedent for the ICC. This means that the ICC has no example upon which to draw, rendering the outcome unpredictable.
Chief Prosecutor Bensouda has also indicated that the OTP has information concerning settlement violence and the treatment of Palestinians in Israeli prisons and the military court system. These also may not necessarily constitute crimes against humanity and thus may not fall under the ICC’s jurisdiction. Moreover, information about the Israeli court system could either provide an impetus for an ICC intervention or a judgment that the Israeli judicial system is capable of fairly trying cases. Because the ICC is a court of last resort, part of its goal is to encourage national proceedings. If the OTP determines that Israel can adjudicate these crimes fairly, then the OTP could also conclude that it does not need to proceed with an investigation -- and Israel will again not be held to account.
The ICC itself at the bar
The benefit of having a judicial body like the ICC is that it grants victims of long-standing atrocity crimes the opportunity to present a case. The March 2016 conviction of former Bosnian Serb politician Radovan Karadzic for war crimes committed against Bosnian Muslims is a reminder of the potential of international criminal tribunals. Palestine appears to be the ultimate test case for the ICC to determine whether it can continue as a forum to prevent impunity and hold the highest-level perpetrators accountable, or if it will ultimately fail because it bends to political influence.
Though less than half of Palestinian refugees believe the ICC will provide a durable solution, the OTP is bound to continue its preliminary examination of Palestine. If it identifies potential crimes such as apartheid or even the treatment of minors in military courts but fails to follow up, Palestinians will be left without any recourse and will be reminded of how international organizations are ineffective at finding a just resolution to conflict. What is more, Israel will continue to act with impunity. But if the ICC uses the law as a mechanism for change and brings about national accountability, it will not only be a major success for Palestinians. It will also be a success for the ICC in that it would prove its competence and ability to not be swayed by outside pressures.
International justice organizations and Palestinian organizations should continue to monitor the ICC and the OTP’s work, scrutinizing decisions as they are made. Palestinian officials must also continue to treat the ICC as a non-politicized body and avoid the temptation to use it as a tool to reaffirm statehood. Despite the ICC’s ability to be swayed by politics, there is still hope that the Court can hold Israeli officials accountable for their crimes -- though such a result may take many years. While Palestine is in for a long journey with the ICC, it will hopefully be one with a just destination.
The views expressed in this article are the authors’ and do not necessarily reflect Ma'an News Agency's editorial policy.
30 june 2016
Members of the Shuheibar family from Gaza City are pursuing in justice French company Exxelia Technologies for having allegedly sold a sensor used in a missile that killed three children on their roof.
A Palestinian family filed suit in France on Wednesday against the French company Exxelia Technologies for alleged complicity in war crimes and manslaughter. The plaintiffs, represented by the law firm Ancile-avocats and assisted by the Christian NGO ACAT, are members of the Shuheibar family residing in Gaza City who had three children die in an Israeli strike in 2014.
On July 17, 2014, during Operation Protective Edge, a missile—apparently fired by a drone—struck the roof of the family's house where five children were feeding pigeons. A girl, Afnan, 8, and two boys, Wassim, 9, and Jihad, 10, were killed. Two other boys, Udai, 15, and his cousin Bassil, 9, where seriously wounded.
A French-made component was found amongst the debris of the missile fired at the house. ACAT and its Palestinian partner documented the attack, collected testimonies, and submitted the debris for analysis by international military experts.
The expert reports established that the French component found was a Hall effect sensor made by the French company Eurofarad, today named Exxelia Technologies after its acquisition by Exxelia Group in 2015. This component is part of a small-grade missile fired by air, apparently by a drone.
The survivors and witnesses claim that no military target was present in the house at the time of the attack or at any other time. If this is the case, the house would be considered a civilian target that could not be attacked under international law, and violation of this would constitute a war crime.
The plaintiffs accuse the French company of being guilty of implication in war crimes, or at least of manslaughter if it is proven that it sold the sensor to an Israeli defense company.
Joseph Breham, an attorney with Ancile-avocats, said, "It's unfortunate that the blatant impunity for war crimes committed in Gaza forces the victims to employ French justice. His colleague, Ingrid Metton, said, "The French arms industry can no longer escape its morale and legal responsibility. Selling materials that are used for war crimes must be severely punished."
Hélène Legeay, head of North African/Middle Eastern programs at ACAT, said "Beyond the Exxelia case, we call on France to show responsibility, (the country that) played a key role in the development and adoption of the Arms Aid Treaty." This treaty forbids states from exporting arms and components that could be used to commit war crimes.
"Instead of congratulating itself for selling arms to countries that commit grave violations of human rights and humanitarian law, France should ensure that in the future, one will not be able to find a single French-made piece at a war-crime site."
A Palestinian family filed suit in France on Wednesday against the French company Exxelia Technologies for alleged complicity in war crimes and manslaughter. The plaintiffs, represented by the law firm Ancile-avocats and assisted by the Christian NGO ACAT, are members of the Shuheibar family residing in Gaza City who had three children die in an Israeli strike in 2014.
On July 17, 2014, during Operation Protective Edge, a missile—apparently fired by a drone—struck the roof of the family's house where five children were feeding pigeons. A girl, Afnan, 8, and two boys, Wassim, 9, and Jihad, 10, were killed. Two other boys, Udai, 15, and his cousin Bassil, 9, where seriously wounded.
A French-made component was found amongst the debris of the missile fired at the house. ACAT and its Palestinian partner documented the attack, collected testimonies, and submitted the debris for analysis by international military experts.
The expert reports established that the French component found was a Hall effect sensor made by the French company Eurofarad, today named Exxelia Technologies after its acquisition by Exxelia Group in 2015. This component is part of a small-grade missile fired by air, apparently by a drone.
The survivors and witnesses claim that no military target was present in the house at the time of the attack or at any other time. If this is the case, the house would be considered a civilian target that could not be attacked under international law, and violation of this would constitute a war crime.
The plaintiffs accuse the French company of being guilty of implication in war crimes, or at least of manslaughter if it is proven that it sold the sensor to an Israeli defense company.
Joseph Breham, an attorney with Ancile-avocats, said, "It's unfortunate that the blatant impunity for war crimes committed in Gaza forces the victims to employ French justice. His colleague, Ingrid Metton, said, "The French arms industry can no longer escape its morale and legal responsibility. Selling materials that are used for war crimes must be severely punished."
Hélène Legeay, head of North African/Middle Eastern programs at ACAT, said "Beyond the Exxelia case, we call on France to show responsibility, (the country that) played a key role in the development and adoption of the Arms Aid Treaty." This treaty forbids states from exporting arms and components that could be used to commit war crimes.
"Instead of congratulating itself for selling arms to countries that commit grave violations of human rights and humanitarian law, France should ensure that in the future, one will not be able to find a single French-made piece at a war-crime site."
