20 dec 2019
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
14 dec 2019
An impressive international coalition of 185 civil society organizations has called on the International Criminal Court (ICC) to open a formal investigation, into possible war crimes and crimes against humanity committed in the Occupied Palestinian Territories, without further delay.
The ICC has been engaged in a preliminary investigation for almost five years without reaching a conclusion. Further delay, resulting in continuing impunity, is unacceptable.
This message was delivered to the ICC, in The Hague, on December 10 (Human Rights Day), by representatives of The Rights Forum, the Dutch NGO which initiated the campaign.
Among the signatory organizations are human rights organizations, trade unions, lawyers guilds, solidarity groups, religious institutions and other civil society organizations from 25 different countries.
Large numbers of signatory organizations hail from Palestine, Germany, the USA, the Netherlands, Australia and France. The list also includes organizations from Malaysia, India, Japan, Lebanon and Nicaragua.
Only two Israeli organizations endorsed the call. Several organizations from Israel informed the PNN that they support the call but do not want their names published, as they fear a backlash from subsidizing entities and the Israeli political echelon.
Since December 10, another 15 organizations have announced that they are joining the call. Their names have been added to the list of signatories, which now comprises exactly 200 organizations.
The ICC has come under intense pressure to act on Palestine. On November 29, 400 European citizens demonstrated outside the ICC offices, demanding justice and protection for Palestinians.
Moreover, in early November, the book “I Accuse!”, written by American author Norman Finkelstein, was published, aimed at Chief Prosecutor Fatou Bensouda for her failure to hold Israel responsible for its crimes.
Most recently, on December 9, an explosive article by Emeritus Professor of Law John Dugard provided insight into the possible motives of Bensouda and her staff for their reluctance to act. Dugard holds that Bensouda’s past in The Gambia might be used against her.
The Rights Forum was founded in 2009 by former Dutch Prime Minister Dries van Agt.
Its mission is to promote a just and durable outcome of the Israel-Palestine conflict, based on international law and human rights. Its Advisory Board consists of former ministers and professors of international law.
The ICC has been engaged in a preliminary investigation for almost five years without reaching a conclusion. Further delay, resulting in continuing impunity, is unacceptable.
This message was delivered to the ICC, in The Hague, on December 10 (Human Rights Day), by representatives of The Rights Forum, the Dutch NGO which initiated the campaign.
Among the signatory organizations are human rights organizations, trade unions, lawyers guilds, solidarity groups, religious institutions and other civil society organizations from 25 different countries.
Large numbers of signatory organizations hail from Palestine, Germany, the USA, the Netherlands, Australia and France. The list also includes organizations from Malaysia, India, Japan, Lebanon and Nicaragua.
Only two Israeli organizations endorsed the call. Several organizations from Israel informed the PNN that they support the call but do not want their names published, as they fear a backlash from subsidizing entities and the Israeli political echelon.
Since December 10, another 15 organizations have announced that they are joining the call. Their names have been added to the list of signatories, which now comprises exactly 200 organizations.
The ICC has come under intense pressure to act on Palestine. On November 29, 400 European citizens demonstrated outside the ICC offices, demanding justice and protection for Palestinians.
Moreover, in early November, the book “I Accuse!”, written by American author Norman Finkelstein, was published, aimed at Chief Prosecutor Fatou Bensouda for her failure to hold Israel responsible for its crimes.
Most recently, on December 9, an explosive article by Emeritus Professor of Law John Dugard provided insight into the possible motives of Bensouda and her staff for their reluctance to act. Dugard holds that Bensouda’s past in The Gambia might be used against her.
The Rights Forum was founded in 2009 by former Dutch Prime Minister Dries van Agt.
Its mission is to promote a just and durable outcome of the Israel-Palestine conflict, based on international law and human rights. Its Advisory Board consists of former ministers and professors of international law.
5 dec 2019
Bensouda also probes ‘pay for slay’ as possible war crime.
International Criminal Court prosecutor Fatou Bensouda said on Thursday that she is concerned about potential Israeli moves to annex the Jordan Valley. Bensouda made the comment in a key section of her annual report reviewing a range of conflict areas around the world that she is probing.
Her final decision could have a massive impact on Israel legally, diplomatically, and in terms of the country’s international image.
Like her 2018 annual report, Bensouda once again said that she was close to a broader decision on whether to delve deeper into the war crimes debate relating to the Israeli-Palestinian conflict.
Bensouda’s term expires in mid-2021, which means that the fall 2020 report will be her last major chance to issue a decision on the conflict.
Though Bensouda’s 2018 report hinted that a decision might come down by mid-2019, her decision may have been pushed off by analyzing the ongoing Gaza border conflict between Israel and Hamas.
Some have suggested that the ICC slowed its push on the Israel-Palestine file due to threats against it by the Trump administration.
But that would seem to be belied by the ICC Prosecution being adamant this week to pursue a case against the US for alleged torture of detainees in Afghanistan, even after an ICC Pretrial Chamber tried to get Bensouda to drop the case.
In any event, the ICC Prosecution was not willing to reveal more signs about whether the final decision will come out in the coming weeks or around 18 months from now.
The three main issues Bensouda is probing are alleged war crimes related to the 2014 Gaza War, the settlement enterprise, and the March 2018-present Gaza border conflict.
In a new section of the report, Bensouda also probes the Palestinian Authority for torturing its own civilians and for so-called pay-for-slay payments.
Regarding the 2014 Gaza war, Bensouda wrote, “With respect to crimes allegedly committed by members of the IDF, the Office has collected information on and evaluated relevant investigative activities at the national level within the IDF military justice system.
“With respect to crimes allegedly committed” by Palestinian fighters in Gaza, “the Office has been unable to identify any relevant national proceedings,” said the ICC Prosecutor.
She also noted that reviewing whether “any of the identified potential cases meet the gravity” requirement for the ICC, which states that the prosecutor only looks into large scale war crimes.
These statements do not mean that the IDF is off the hook for alleged war crimes relating to 2,100 killed Palestinians (between 50% and 80% civilians) from that war.
The ICC could decide the IDF probes were insufficient, or that they did not probe senior commanders and only looked at junior soldiers.
But the statement continues a trend from the 2018 report suggesting the ICC may give Israel a broad pass on the 2014 war by deciding to recognize the IDF probes as precluding an ICC probe.
If so, it would be a stunning turnaround from a 2015 UN Human Rights Council report that condemned the IDF as having systematically perpetrated war crimes.
The report also continued a trend from the 2018 report suggesting that the ICC views Hamas as having failed to probe war crimes committed by its fighters.Such a criminal investigation against Hamas would be a first.
Regarding the settlement enterprise, the report had fewer statistics and updates than in previous reports, yet it had a key line appearing to threaten Israel, stating that “The Office has also followed with concern proposals advanced during the recent electoral process, to be tabled to the Knesset, for Israel to annex the Jordan Valley in the West Bank.
”This line followed a trend of sending deterrent messages to Israel regarding certain changes on the ground in disputed areas, including a previous statement from the ICC that got Israel to back-off from a change of the status quo in the E-1 area between Jerusalem and the West Bank.
Besides that statement and noting the number of Israeli settlements and outposts in the West Bank and east Jerusalem, Bensouda did not tip her hand, neutrally summarizing the Israeli-Palestinian dispute over certain areas.
Past reports explicitly attacked the settlements as violating international law and seemed to dismiss the Israeli High Court of Justice by saying that it had declined to rule on whether the settlements policy is a judicial issue.
While recognizing that the High Court has ruled on a range of specific settlements, past reports appeared to set up a scenario where the ICC could declare the settlement enterprise a war crime, and then only drop certain settlements from the probe if the High Court happened to deal with them.
Another major issue the report focused on was the Gaza border conflict since March 2018.
Though overall Bensouda adopted the Palestinian narrative that most Palestinians near the border fence have been nonviolent, she acknowledged that some were violent and had used fire kites and balloons to attack Israel.
In addition, the report noted allegations that Gaza fighters “made use of civilians as shields and of child soldiers during the demonstrations.
”One significant new point was that the ICC report mentioned the May 2018 Israeli Supreme Court decision probing and endorsing the IDF’s rules of engagement regarding the demonstrations.
It was unclear if mentioning the Israeli Supreme Court decision – after the 2018 report ignored that decision – meant a greater acknowledgment of the Israeli justice system, or was merely a technical addition.
Bensouda’s report also mentioned IDF probes of the deaths of 11 demonstrators and the October 28, 2019, conviction of an IDF soldier “in relation to the killing of a teenager who took part in the demonstrations.
”For the first time, Bensouda went into detail about her analyzing whether the PA has violated war crimes by torturing its own civilians, and through financial incentives to some of its people to perpetrate violence against Israel.
“The Office has also received allegations that: (i) Palestinian security and intelligence services in the West Bank have committed the crime against humanity of torture and related acts against civilians…and (ii) the PA have encouraged and provided financial incentives for the commission of violence through their provision of payments to the families of Palestinians…involved…in carrying out attacks against Israeli citizens.
“The payment of such stipends may give rise to Rome Statute crimes,” the report said.
International Criminal Court prosecutor Fatou Bensouda said on Thursday that she is concerned about potential Israeli moves to annex the Jordan Valley. Bensouda made the comment in a key section of her annual report reviewing a range of conflict areas around the world that she is probing.
Her final decision could have a massive impact on Israel legally, diplomatically, and in terms of the country’s international image.
Like her 2018 annual report, Bensouda once again said that she was close to a broader decision on whether to delve deeper into the war crimes debate relating to the Israeli-Palestinian conflict.
Bensouda’s term expires in mid-2021, which means that the fall 2020 report will be her last major chance to issue a decision on the conflict.
Though Bensouda’s 2018 report hinted that a decision might come down by mid-2019, her decision may have been pushed off by analyzing the ongoing Gaza border conflict between Israel and Hamas.
Some have suggested that the ICC slowed its push on the Israel-Palestine file due to threats against it by the Trump administration.
But that would seem to be belied by the ICC Prosecution being adamant this week to pursue a case against the US for alleged torture of detainees in Afghanistan, even after an ICC Pretrial Chamber tried to get Bensouda to drop the case.
In any event, the ICC Prosecution was not willing to reveal more signs about whether the final decision will come out in the coming weeks or around 18 months from now.
The three main issues Bensouda is probing are alleged war crimes related to the 2014 Gaza War, the settlement enterprise, and the March 2018-present Gaza border conflict.
In a new section of the report, Bensouda also probes the Palestinian Authority for torturing its own civilians and for so-called pay-for-slay payments.
Regarding the 2014 Gaza war, Bensouda wrote, “With respect to crimes allegedly committed by members of the IDF, the Office has collected information on and evaluated relevant investigative activities at the national level within the IDF military justice system.
“With respect to crimes allegedly committed” by Palestinian fighters in Gaza, “the Office has been unable to identify any relevant national proceedings,” said the ICC Prosecutor.
She also noted that reviewing whether “any of the identified potential cases meet the gravity” requirement for the ICC, which states that the prosecutor only looks into large scale war crimes.
These statements do not mean that the IDF is off the hook for alleged war crimes relating to 2,100 killed Palestinians (between 50% and 80% civilians) from that war.
The ICC could decide the IDF probes were insufficient, or that they did not probe senior commanders and only looked at junior soldiers.
But the statement continues a trend from the 2018 report suggesting the ICC may give Israel a broad pass on the 2014 war by deciding to recognize the IDF probes as precluding an ICC probe.
If so, it would be a stunning turnaround from a 2015 UN Human Rights Council report that condemned the IDF as having systematically perpetrated war crimes.
The report also continued a trend from the 2018 report suggesting that the ICC views Hamas as having failed to probe war crimes committed by its fighters.Such a criminal investigation against Hamas would be a first.
Regarding the settlement enterprise, the report had fewer statistics and updates than in previous reports, yet it had a key line appearing to threaten Israel, stating that “The Office has also followed with concern proposals advanced during the recent electoral process, to be tabled to the Knesset, for Israel to annex the Jordan Valley in the West Bank.
”This line followed a trend of sending deterrent messages to Israel regarding certain changes on the ground in disputed areas, including a previous statement from the ICC that got Israel to back-off from a change of the status quo in the E-1 area between Jerusalem and the West Bank.
Besides that statement and noting the number of Israeli settlements and outposts in the West Bank and east Jerusalem, Bensouda did not tip her hand, neutrally summarizing the Israeli-Palestinian dispute over certain areas.
Past reports explicitly attacked the settlements as violating international law and seemed to dismiss the Israeli High Court of Justice by saying that it had declined to rule on whether the settlements policy is a judicial issue.
While recognizing that the High Court has ruled on a range of specific settlements, past reports appeared to set up a scenario where the ICC could declare the settlement enterprise a war crime, and then only drop certain settlements from the probe if the High Court happened to deal with them.
Another major issue the report focused on was the Gaza border conflict since March 2018.
Though overall Bensouda adopted the Palestinian narrative that most Palestinians near the border fence have been nonviolent, she acknowledged that some were violent and had used fire kites and balloons to attack Israel.
In addition, the report noted allegations that Gaza fighters “made use of civilians as shields and of child soldiers during the demonstrations.
”One significant new point was that the ICC report mentioned the May 2018 Israeli Supreme Court decision probing and endorsing the IDF’s rules of engagement regarding the demonstrations.
It was unclear if mentioning the Israeli Supreme Court decision – after the 2018 report ignored that decision – meant a greater acknowledgment of the Israeli justice system, or was merely a technical addition.
Bensouda’s report also mentioned IDF probes of the deaths of 11 demonstrators and the October 28, 2019, conviction of an IDF soldier “in relation to the killing of a teenager who took part in the demonstrations.
”For the first time, Bensouda went into detail about her analyzing whether the PA has violated war crimes by torturing its own civilians, and through financial incentives to some of its people to perpetrate violence against Israel.
“The Office has also received allegations that: (i) Palestinian security and intelligence services in the West Bank have committed the crime against humanity of torture and related acts against civilians…and (ii) the PA have encouraged and provided financial incentives for the commission of violence through their provision of payments to the families of Palestinians…involved…in carrying out attacks against Israeli citizens.
“The payment of such stipends may give rise to Rome Statute crimes,” the report said.
