Palestine self-referral aims to spur ICC investigation

The issue of settlements on occupied Palestinian territory at the center of the Palestinian ICC investigation request. © AFP 2018 / THOMAS COEX
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The government of the State of Palestine has referred the situation in Palestine to the ICC, requesting the Prosecutor to "investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court's jurisdiction."

"Palestine's referral can spur the case forward, into the formal investigation stage that precedes arrest warrants and indictments - and one critical step closer to closing the impunity gap,  writes Nada Kiswanson of the Palestinian human rights organization Al-Haq in a oped this week. "[W]hile the ICC prosecutor will not be able to change the past, she may be able to positively influence the future. In opening an investigation and subsequently prosecuting senior Israelis, the ICC will be sending a powerful message that Palestinians, like all other peoples, are worthy of justice, and that redress is not a gift but a right that must be unconditionally fulfilled."

The Foreign Minister of Palestine, Riyadh al-Maliki, said in a press conference that Palestine had highlighted Israeli actions related to the ‘promotion, expansion and entrenchment of the settlement regime’. Al-Maliki said that is Palestine’s contention that this ‘settlement regime’ was perpetuated by the commission of war crimes, crimes against humanity and ‘the crime of apartheid’.

WATCH: Foreign Minister al-Maliki’s press conference at the International Criminal Court.

Specific alleged crimes highlighted in the referral include: the displacement of Palestinians, unlawful killings, illegal appropriation of land and property, the demolition of Palestinian homes and other properties and the policy of mass arbitrary detention and torture.

The ICC Prosecutor, Fatou Bensouda, acknowledged the receipt of Palestine’s referral in a press release. Reiterating her Office’s commitment to acting exclusively under the powers diverged to it by the Rome Statute, she said that, “[t]here 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.”

The referral comes amidst a surge in violence in Gaza related to the ‘great return march’ of Palestinian protesters towards the Israeli border, which resulted in a reported over100 Palestinian deaths and around 10,000 injuries.

"During the past 70 years of dispossession and 50 years of occupation, not a single Israeli high-ranking civilian or military official has been prosecuted for committing a crime against Palestinians. [...] In the very few instances that an Israeli low-level soldier has been investigated and prosecuted, the eventual sentence handed down has not been commensurate with the severity of the criminal conduct," Kiswanson continued.

It is now up to the ICC Prosecutor to decide whether the criteria for initiation of a formal Investigation have been met. These, according to article 53(1) of the Rome Statute, include: considerations of issues of jurisdiction, admissibility and the interests of justice. The current self-referral has given the ICC jurisdiction over crimes occurring on Palestinian territory since 13 June 2014.  

A separate preliminary examination has been under way at the ICC since 16 January 2015. This was initiated after the Government of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014."

ICC preliminary examinations are intended to determine whether there is sufficient evidence to reasonably conclude that a full investigation is warranted.The ICC Prosecutor is mandated by the ICC Rome Statute to investigate, and if necessary prosecute, all those individually responsible for the commission of crimes committed in the context of situation where it has jurisidiction. This means that crimes allegedly committed on the territory of Palestine by Israelis and Palestinians (and any other nationality) can be looked at. By the same token, the ICC has jurisdiction over alleged crimes committed by Palestinians outside its state territory, known as 'personal jurisdiction' in the Rome Statute.

Gobal civil society organisations called on the UN Human Rights Council to investigate the recent violence against protesters in Palestine. The 95 civil society organisations that signed the petition include, the International Federation for Human Rights (FIDH), the International Commission of Jurists, Al-Haq, ADDAMEER Prisoner Support and Human Rights Association, FORUM-Asia, Jerusalem Legal Aid and Human Rights Center and Lawyers for Palestinian Human Rights.

The Palestinian Journalists Syndicate said it had filed communications to the ICC and some European courts against Israeli officials and institutions directly involved in crimes against Palestinian media. According to the statement, the killing of the Palestinian journalists, Yaser Murtaja and Ahmed Abu Hussein and the injury of about 90 journalists, allegedly by the Israeli army forces, in Gaza Strip since the beginning of 2018 will be at the top of the files.

Israel's foreign ministry said that the Palestinian request to the ICC has no legal validity. Meanwhile, an Israeli NGO is reportedly building a case against Hamas to submit to the International Criminal Court for alleged crimes against Israeli border farmers.

What can Palestinians expect from the ICC? Oped by Nada Kiswanson, Al-Haq Representative to the ICC