ICC Report 2019 on Palestine
The following is the Palestine section in the Report on Preliminary Examination Activities 2019 issued by The Office of the Prosecutor of the International Criminal Court ICC), 5 December 2019.
PALESTINE
Procedural History
200. The situation in Palestine has been under preliminary examination since 16 January 2015.42 During the reporting period, the Office continued to receive communications pursuant to article 15 in relation to the situation in Palestine.
201. On 22 May 2018, the Office received a referral from the Government of the State of Palestine regarding the situation in Palestine since 13 June 2014 with no end date. In reference to articles 13(a) and 14 of the Statute, the State of Palestine requested the Prosecutor “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”43
202. On 24 May 2018, the Presidency of the Court assigned the Situation in Palestine to Pre-Trial Chamber I (“PTC I”).44
203. On 13 July 2018, PTC I issued a decision concerning the establishment, by the Registry, of “a system of public information and outreach activities among the affected communities and particularly the victims of the situation in Palestine.”45
Preliminary Jurisdictional Issues
204. On 1 January 2015, the State of Palestine lodged a declaration under article 12(3) of the Statute accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” On 2 January 2015, the Government of the State of Palestine acceded to the Statute by depositing its instrument of accession with the UN Secretary-General. The Statute entered into force for the State of Palestine on 1 April 2015.
Contextual Background
West Bank and East Jerusalem
205. In June 1967, an international armed conflict (the Six-Day War) broke out between Israel and neighbouring states, as a result of which Israel acquired control over a number of territories including the West Bank and East Jerusalem.
Immediately after the end of the Six-Day War, Israel established a military administration in the West Bank, and adopted laws and orders effectively extending Israeli law, jurisdiction and administration over East Jerusalem. In November 1981, a separate Civilian Administration was established to “run all regional civil matters” in the West Bank. On 30 July 1980, the Knesset passed a ‘Basic Law’ by which it established the city of Jerusalem “complete and united” as the capital of Israel.
206. Since 1967, the information available suggests that the Israeli civilian presence in the West Bank and East Jerusalem has reportedly grown to nearly 600,000 settlers, living in 137 settlements officially recognised by the Israeli authorities, including 12 large Israeli ‘neighbourhoods’ in the eastern part of Jerusalem, and some 100 unauthorised settlements or ‘outposts’.
207. Pursuant to the Oslo Accords of 1993–1995, the Palestine Liberation Organization and the State of Israel formally recognised each other, and agreed on a progressive handover of certain Palestinian-populated areas in the West Bank to the Palestinian National Authority (or Palestinian Authority, “PA”). Under the 1995 Interim Agreement, the West Bank was divided into three administrative areas (Area A — full civil and security control by the PA; Area B — Palestinian civil control and joint Israeli-Palestinian security control; Area C — full civil and security control by Israel).
208. The peace talks between the parties ground to a halt in 1995 and were followed over the years by a number of rounds of negotiations including the Camp David Summit of 2000, the 2002/2003 Road Map for Peace, as well as intermittent peace talks and related initiatives since 2007. To date, no final peace agreement has been reached and a number of issues remain unresolved, including the determination of borders, security, water rights, control of the city of Jerusalem, Israeli settlements in the West Bank, refugees, and Palestinians’ freedom of movement.
Gaza
209. On 7 July 2014, Israel launched ‘Operation Protective Edge’, which lasted 51 days. According to the Israeli authorities, the objective of the operation was to disable the military capabilities of Hamas and other groups operating in Gaza, neutralise their network of cross-border tunnels and halt their rocket and mortar attacks against Israel. The operation consisted of three phases: after an initial phase focussed on air strikes, Israel launched a ground operation on 17 July 2014; a third phase from 5 August onwards was characterised by alternating ceasefires and aerial strikes. Several Palestinian armed groups (“PAGs”) participated in the hostilities, most notably the respective armed wings of Hamas and the Palestinian Islamic Jihad as well as the al-Nasser Salah al-deen Brigades. The hostilities ended on 26 August 2014 when both sides agreed to an unconditional ceasefire.
210. Since the end of the 2014 hostilities, different national and international bodies have conducted inquiries and/or investigations into incidents that occurred during the 2014 Gaza conflict, such as, for example, the UN Independent Commission of Inquiry on the 2014 Gaza Conflict, the UN Headquarters Board of Inquiry into certain incidents that occurred in the Gaza Strip between 8 July 2014 and 26 August 2014, the Israel Defense Forces (“IDF”) Military Advocate General (“MAG”), and the Palestinian Independent National Committee.
211. On 30 March 2018, the 42nd anniversary of the Palestinian Land Day, tens of thousands of Palestinians participated in a protest, dubbed the “Great March of Return”, near the border fence between the Gaza Strip and Israel. The demonstrations were reportedly organised to draw attention to the Palestinians’ demands for an end of the Israeli occupation and its blockade on the Gaza Strip and to the rights of refugees and their descendants to reclaim their ancestral lands in Israel. Although the protests were initially planned to last only six weeks, until 15 May 2018 (“Nakba Day”), they have ultimately continued during 2019.
212. In the context of these events, IDF soldiers have used non-lethal and lethal means against persons participating in the demonstrations, reportedly resulting in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others. Reportedly, journalists and medical workers have been among those killed and injured. Damage was also reportedly caused to a number of ambulances deployed during the protests.
213. While the majority of demonstrators reportedly engaged in non-violent protest and remained several hundred meters away from the border, some entered the immediate area of the border fence and engaged in violent acts, such as throwing rocks, Molotov cocktails and other explosive devices, deploying incendiary kites and balloons into Israel, and attempting to infiltrate into Israeli territory. The deployment of such incendiary kites and balloons has resulted in significant damage to Israeli agricultural and natural land and some Israeli property.
214. Israel has alleged that Hamas and armed groups in Gaza have sought to instigate a violent confrontation and have exploited the protests as a cover for acts of terrorism against the State of Israel, using the presence of civilians to shield their military activities. However, the IDF’s rules of engagement and the alleged use of excessive and deadly force by Israeli forces in the context of the demonstrations has been heavily criticised by, among others, UN officials and bodies and a number of international and regional NGOs. In May 2018, the Israeli Supreme Court dismissed petitions challenging the rules of engagement purportedly applied by the IDF in the context of the demonstrations.
215. On 18 May 2018, the UN Human Rights Council adopted Resolution S-28/1 establishing an independent international commission of inquiry to investigate alleged violations and abuses of international humanitarian law and international human rights law committed in the context of the demonstrations that began on 30 March 2018. The commission published a detailed report on its findings on 18 March 2019.
216. The IDF has also reportedly announced that it has conducted or is otherwise in the process of conducting its own examination and investigations of certain alleged incidents involving the shooting of demonstrators. According to media reports, one internal IDF probe into the deaths of 153 demonstrators was led by IDF Brigadier General Moti Baruch. In parallel, the Fact-Finding Assessment Mechanism of the IDF MAG has reportedly been carrying out examinations of incidents. In addition, criminal investigations were reportedly opened by the MAG in relation to the deaths of 11 demonstrators. On 28 October 2019, one such investigation led to the conviction of one IDF soldier in relation to the killing of a teenager who took part in the demonstrations on 13 July 2018.
217. During 2019, there was also a marked increase in periodic hostilities between Israel and PAGs operating in Gaza. For example, on 4–6 May 2019, PAGs fired hundreds of rockets and mortar shells from Gaza towards Israel, reportedly killing at least four civilians and injuring over one hundred others and causing damage to property. The IDF also launched strikes against over one hundred targets throughout Gaza. Such attacks reportedly primarily targeted PAG members and their infrastructure, though also reportedly caused several civilian casualties (including to minors), and damage in certain instances. On 6 May, a ceasefire was reached between the parties. Most recently, a new outbreak of violence occurred around mid-November 2019. During this period, following an IDF targeted strike against a senior Palestinian Islamic Jihad commander, PAGs fired over 400 rockets and mortars towards Israel from Gaza, causing tens of injuries and damage to civilian property in Israel. Israel also launched several airstrikes in the Gaza Strip purportedly against PAG targets, which resulted in the killing of over 30 Palestinian individuals (including reportedly members of PAGs and also a number of civilians including children), injuries to around 100 others, and damage to property. A ceasefire was reportedly reached on 14 November 2019, although some airstrikes by the IDF and launches of rockets by PAGs were recorded in the subsequent days.
Preconditions to the Exercise of the Court’s Jurisdiction
218. As highlighted in previous years, the preliminary examination of the situation in Palestine has raised a number of unique challenges, such as in relation to exercise of territorial jurisdiction by the Court, the resolution of which is a prerequisite before the Prosecutor can come to a determination under article 53(1)(a). In particular, the Office has considered the scope of the Court’s jurisdiction as well as possible challenges thereto. During the reporting period, the Office has sought to finalise its position on the preconditions to the exercise of the Court’s jurisdiction.
Subject-Matter Jurisdiction and Admissibility
219. The summary below is without prejudice to any future determinations by the Office regarding these or other related matters.
West Bank and East Jerusalem
220. The Office has focused its analysis on alleged war crimes committed in the West Bank, including East Jerusalem, since 13 June 2014. In this regard, the Office has collected information on and analysed various different types of alleged conduct, while particularly focusing on reported settlement-related activities engaged in by Israeli authorities that are alleged to amount to crimes under article 8 of the Statute. The Office has also carried out an admissibility assessment with respect to any potential cases identified. In the context of the complementarity assessment, the Office has, for example, examined certain domestic judicial proceedings in Israel, namely cases before, and decisions by, the Israeli High Court of Justice. Taking into account both quantitative and qualitative factors, the Office has also assessed whether any identified potential cases are of sufficient gravity to warrant an investigation.
221. During the reporting period, the Office has sought to finalise its subject-matter analysis of such alleged conduct as well as attendant admissibility assessments concerning complementarity and gravity, while continuing to receive and carefully review additional information provided by relevant actors.
222. The Office has also continued to receive information regarding other crimes allegedly committed by Israeli authorities in the West Bank, including East Jerusalem, which may fall under the purview of article 7 of the Statute on crimes against humanity. Specifically, these allegations relate to the crime of persecution, transfer and deportation of civilians, as well as the crime of apartheid. In addition, 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 held in detention centres under their control; 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 who were involved, in particular, in carrying out attacks against Israeli citizens, and under the circumstances, the payment of such stipends may give rise to Rome Statute crimes. These as well as any other alleged crimes that may occur in the future require further assessment.
Gaza
223. The Office has primarily focused its analysis on crimes allegedly committed during the hostilities that took place in Gaza between 7 July and 26 August 2014. In this regard, the Office has analysed the respective alleged conduct of the IDF and PAGs during the conflict. In conducting the subject-matter analysis, the Office particularly focused on a sample of illustrative incidents, out of the thousands documented by the Office and compiled in comprehensive databases. In this respect, the Office sought to: (i) select incidents which appear to be the most grave in terms of the alleged harm to civilians and damage to civilian objects and/or are representative of the main types of alleged conduct, and (ii) prioritise incidents for which there is a range of sources and sufficient information available to enable an objective and thorough analysis.
224. The Office has also carried out an admissibility assessment with respect to potential cases identified. 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 PAGs, the Office has been unable to identify any relevant national proceedings. Taking into account both quantitative and qualitative factors, the Office has also assessed whether any of identified potential cases meet the gravity threshold required to warrant an investigation.
225. During the reporting period, the Office sought to finalise its subject-matter analysis of the above-mentioned alleged conduct as well as attendant admissibility assessments, while continuing to receive and carefully review additional information provided by relevant actors.
226. In addition to the above, the Office has also received and gathered information regarding other crimes allegedly committed by both sides in relation to the violence that has occurred in the context of the protests held along the IsraelGaza border since 30 March 2018 and throughout 2019. The Office has collected pattern data concerning over 200 incidents which resulted in the death of demonstrators by live fire and other means used by the IDF, and analysed in greater detail several such incidents, which resulted in the death of children, medical workers, journalists and disabled individuals. The Office has also collected and analysed information on the use of incendiary kites and balloons by demonstrators and possibly members of PAGs and their impact on the Israeli territory and population. The Office has further noted allegations that members of PAGs made use of civilians as shields and of child soldiers during the demonstrations. These as well as any other alleged crimes that may occur in the future require further assessment.
OTP Activities
227. During the reporting period, the Office has worked towards bringing the preliminary examination to a conclusion in order to reach a decision under article 53(1).
228. Throughout the reporting period, the Office continued to engage and consult with relevant stakeholders, including officials of Palestine and Israel, intergovernmental and non-governmental organisations, and members of civil society.
229. The Office also continued to closely monitor relevant developments in the region, and to assess new allegations and information available concerning the alleged commission of Rome Statute crimes and any related national proceedings. 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.
Conclusion and Next Steps
230. While the situation has been under preliminary examination for almost five years and has benefitted from meaningful and constructive engagement with both the Palestinian and Israeli authorities, as well as numerous other actors, which have helped deepen the Office’s understanding and assessment of the situation, the Prosecutor also believes that it is time to take the necessary steps to bring the preliminary examination to a conclusion.
Footnotes:
42 — ICC-OTP, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015.
43 — Referral Pursuant to Article 13(a) and 14 of the Rome Statute, 15 May 2018, para.9. See also ICC-OTP, Statement by ICC Prosecutor, Mrs Fatou Bensouda, on the referral submitted by Palestine, 22 May 2018.
44 — Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, ICC-01/18–1, 24 May 2018.
45 — Decision on Information and Outreach for the Victims of the Situation, ICC-01/18–2, 13 July 2018.
