Palestine requests ICC to investigate Israel’s war crimes. But will the Prosecutor agree?

The state of Palestine submitted a referral to the Prosecutor of International Criminal Court (ICC) on May 15, requesting an investigation into the crimes the Israeli state has been committing on Palestinians since 2015. On May 22, the ICC prosecutor, Fatou Bensouda, confirmed that she had received the referral. After considering "issues of jurisdiction, admissibility and the interests of justice", the prosecutor said that she would determine whether or not the situation warrants an investigation.

The killing of civilians, including children, expansion of illegal settlements after forcibly displacing Palestinians from lands occupied by Israel, mass arrests and arbitrary detentions, and destruction of livelihoods of thousands of Palestinians are documented in the referral, which argues that these acts of Israel “qualify under the Rome Statute as both war crimes and crimes against humanity.”

This move by the Palestinian state comes after Israeli forces killed more than a 100 Palestinians and injured thousands in the course of the Great Return March, held between March 30 and May 15 in demand for the right of Palestinians to return to their ancestral land from which hundreds of thousands were evicted after the creation of the state of Israel. The right to return is stipulated in the UN general assembly’s resolution 194.

The atrocities committed by Israel on Palestinians have been under a “preliminary examination” since 2015. On April 8, days after the Great Return March had begun, the ICC prosecutor had said in a statement:  “It is with grave concern that I note the violence and deteriorating situation in the Gaza Strip in the context of recent mass demonstrations. Since 30 March 2018, at least 27 Palestinians have been reportedly killed by the Israeli Defence Forces, with over a thousand more injured, many, as a result of shootings using live ammunition.. Violence against civilians - in a situation such as the one prevailing in Gaza - could constitute crimes under the Rome Statute of the International Criminal Court..”  

Further, she added, “While a preliminary examination is not an investigation, any new alleged crime committed in the context of the situation in Palestine may be subjected to my Office's scrutiny.”

The preliminary examination was initiated in January 2015, after Israel’s attack on the Gaza strip the previous year, ostensibly targeting Hamas, killed more than 2,000 people and wounded over 10,000, including more than a 1000 children who were left permanently disabled.    

“An alarming intensification of Israeli crimes”

While the preliminary examination has been underway for three years now, “there has been an alarming intensification of Israeli crimes”, the referral submitted by Palestinian Foreign Minister Riad Malki stated.   

The construction of illegal Israeli settlements in Occupied Palestinian Territory between April 2016 and March 2017 has been 70% higher when compared to the same period in 2015-2016. “In 2017 alone, the Israeli government advanced plans for over 6,742 additional Israeli settler housing units,” the referral said.

Since the ICC’s jurisdiction over Palestine began in June 2014, 3,861 Palestinians, including 1,960 children, have been forcibly displaced by Israeli occupation, which has “impacted the livelihood and access to services of a further 19,555 Palestinians,” the referral stated. 1,054 homes and other structures necessary for livelihoods of Palestinians were destroyed in 2016, and another 424 in 2017.  

As on the end of 2016, 7,000 Palestinians had been victims of arbitrary detention in Israeli jails. 10% of them are being held under “administrative detention”, which allows Israel to keep them under detention for indefinite periods without filing any charges or initiating trials. The “secret evidence”, based on which these Palestinians are detained, is not made available either to the imprisoned or to their lawyers.

Last year, according to the referral, Israeli forces carried out an average of 79 raids per week in West Bank, and 67 in the Gaza Strip, while “the policy of mass arbitrary arrest and unlawful imprisonment by Israeli occupation forces continued.” Over 7,300 civilians, including more than 1,100 children, have been killed or injured under Israeli occupation in 2017.

A day before the referral was submitted, on May 14, when the protests as part of the Great Return March culminated with the opening of US embassy, Israeli forces used live ammunition and artillery fire, killing 60 demonstrators in the Gaza Strip and injuring thousands.

Since the beginning of the Great Return March on March 30 this year, the referral states, “Israeli Occupation Forces killed over 110 peaceful demonstrators and other protected persons, including 2 journalists, 14 children, and 1 paramedic,” adding, “During this period, the Israeli Occupation Forces repeatedly stated their knowledge of where every bullet fired on protesters landed, while top Israeli officials congratulated the snipers on a job well done, including the Prime Minister and Defense Minister, who declared that “there are no innocent people in the Gaza Strip”.”

A worrying record

While the prosecutor has assured that the ongoing, “preliminary examination has seen important progress and will continue to follow its normal course”, the referral stated in the very first paragraph that “This is the third preliminary examination that the Office of the Prosecutor.. has undertaken in relation to Palestine. To date, none of these examinations has resulted in a decision to investigate.”

The first Preliminary Examination, which was initiated in 2009, was closed in 2012 on the technicality that, at the time, Palestinian Authority's status at the UN was that of an "observer entity" and not a "non-member state", which disqualifies it from moving the ICC to investigate under the provisions of Rome Statute.

The second Preliminary Examination was opened in May 2013 to assess the need to investigate the murder of 10 activists by Israeli naval commandos, who raided flotillas on international waters in which the activists were carrying medical aid and construction material to the Gaza strip, which is blockaded by Israel. By November 2014, Fatou Bensouda, who continues to be the chief prosecutor of ICC till date, closed the examination and refused to investigate on the grounds that the atrocities committed were not of a large-enough scale to warrant investigation.

This was despite her own conclusion that “the information available provides a reasonable basis to believe that war crimes under the Court’s jurisdiction have been committed.. by IDF [Israel Defence Forces] soldiers.”

After an appeal against the prosecutor’s decision, the judges of the pre-trial chamber of ICC concluded that killing 10 passengers, injuring 55 and hundreds of cases of torture and outrages on personal dignity does constitute violations of a scale that warrants investigation, and requested a re-examination.

Fatou Bensouda appealed against the pre-trial chamber, accusing the department of overstepping its authority into the prosecutor’s domain. When her appeal was dismissed, she undertook a re-examination of the case, and arrived at the same conclusion as before.

The current referral by the Palestinian state requests the prosecutor to “immediately inform the Presidency of the ICC of this Referral so as to "facilitate the timely assignment of [the] situation to a Pre-Trial Chamber””, as is mandated in Regulation 45 of the Regulations of the Court.  

In response, the prosecutor has said:  “A referral.. does not automatically lead to the opening of an investigation. Should I, however, ultimately determine that the situation referred warrants an investigation.. the Statute does not require the Prosecutor to seek authorisation from the Pre-Trial Chamber of the Court in order to proceed with an investigation. There should be no doubt that in this and any other situation before my Office, I will always take the decision warranted by my mandate under the Rome Statute.”  

Article 53 of the Rome statute mandates that, “The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.”

A question of the ICC’s credibility

Backing the Palestinian state's claim that there is a “reasonable basis to proceed with an investigation”, the referral brings to the Prosecutor's notice that, “Over the last 50 years, the United Nations Security Council, the United Nations General Assembly and the Human Rights Council have passed numerous resolutions recognizing that Israeli settlements in the Occupied Palestinian Territory are in violation of international law.”

The International Court of Justice had unanimously decided, “Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” 

The UN Security Council has also stated in a resolution adopted in 2016 that “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.. the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, [are] in violation of international humanitarian law..”  

Also cited in the referral are 12 different United Nations fact-finding and inquiry commissions which have established that “international crimes have been committed by Israeli forces and officials on the territory of the State of Palestine.”

The referral points out that ensuring justice to the Palestinian victims is necessary, not only to deter further atrocities, but also for the “credibility of the ICC itself,” adding, “A failure to punish.. crimes associated with the unlawful occupation of Palestine has only emboldened perpetrators to carry on with their criminal deeds.”