ICC Prosecutor initiates an investigation of the Situation in Palestine
On 3 March, ICC Prosecutor, Fatou Bensouda confirmed the initiation of an investigation on the Situation in Palestine. The investigation will cover crimes within the jurisdiction of the Court that have been allegedly committed by members of the Israeli Defense Forces, Israeli authorities, Hamas and Palestinian armed groups since 13 June 2014 in the occupied Palestinian territory, including Gaza, the West Bank, and East Jerusalem.
The opening of the investigations follows several years of preliminary examination undertaken by the ICC Office of the Prosecutor (OTP).
In her Statement, the ICC Prosecutor Fatou Bensouda affirmed that “[i]n the current Situation […] there is a reasonable basis to proceed and there are admissible potential cases. Our assessment will remain ongoing in the context of the investigation to allow for a continuing assessment of actions being taken at the domestic level in accordance with the principle of complementarity,” and added: "To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes. In meeting this responsibility, the Office focuses its attention on the most notorious alleged offenders or those alleged to be the most responsible for the commission of the crimes".
In a statement delivered during a meeting with States Parties to the Rome Statute in March, Mr. James Stewart, Deputy Prosecutor of the ICC stated: “The statement respecting the investigation, we know, will provoke extremely hostile reactions in some quarters, and, even if you may not be entirely in agreement with the Court’s exercise of jurisdiction in this Situation, it is vitally important for you to defend the Court against attack. Our concern has to be for the victims of Rome Statute crimes, whoever they are and whoever the alleged perpetrators may be. In the current circumstances, we need, more than ever before, your support and your willingness to stand up against attacks against this Court and its officials – this Court which you, as States Parties, created to put international crimes firmly beyond the pale.”
Reactions from States and other stakeholders
The State of Palestine welcomed the OTP’s decision and stated that “[t]his is a long-awaited step that serves Palestine’s tireless pursuit of justice and accountability, which are indispensable pillars of the peace the Palestinian people seek and deserve". The statement also affirms that “[a]ll States Parties must refrain from politicizing these independent proceedings. They must also respect their obligation to protect the Court and its proceedings from interference and to shield Court staff, including judges, the Prosecutor, and their families from any threats or attempts at coercion.”
The Prime Minister of Israel, Benjamin Netanyahu, stated that "[t]he decision of the International Court to open an investigation against Israel today for war crimes is absurd. It's undiluted anti-Semitism and the height of hypocrisy.”
Peter Stano, EU spokesperson, affirmed that the “ICC is an independent and impartial judicial institution with no political objectives to pursue.” Stano also noted that the ICC is “a court of last resort, a fundamental safety net to help victims achieve justice where this is not possible at the national level, thus where the state concerned is genuinely unwilling or unable to carry out the investigation or the prosecution.”
The USA Secretary of State, Antony J. Blinken stated that “[t]he United States firmly opposes and is deeply disappointed by this decision” and added that “[t]he ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.”
Member of the European Parliament and Chair of the Delegation for Relations with Palestine (DPAL) Manu Pineda stated: “It’s about time that the ICC investigates Israel’s crimes against Palestinians, putting an end to the impunity that has pervaded for decades and that has allowed Israel to violate international law without consequence” and added that “Israel and the US will do all they can to discredit the Court. As signatories of the Rome Statute, EU member states are legally-bound to cooperate with the investigation.”
The Minister of Foreign Affairs of the Kingdom of the Netherlands stated that “[t]he Netherlands is off the opinion that this is a matter for the Court. As mentioned, the ICC, its judges and the prosecutor re independent. The Cabinet has confidence in the professionalism of the Court and the prosecutor. The Netherlands does not interfere substantively with investigations or rulings of the International Criminal Court, and the government will therefore not comment on the positions of other countries on this matter.”
Hungary stated that they were against the March 3 statement of the ICC Prosecutor and re-stated that they disputed the decision of the Court that affirmed the territorial scope of its jurisdiction extends to Gaza, the West Bank and East Jerusalem.
The Minister of Foreign Affairs of Israel, Gabi Ashkenazi hosted the Minister of Foreign Affairs of Brazil Ernesto Araújo at the Ministry of Foreign Affairs in Jerusalem and released a joint statement affirming: “Minister Ashkenazi thanked Minister Araújo for Brazil's renewed support of Israel's positions. Minister Ashkenazi expressed Israel's deep appreciation for Brazil's principled and consistent position that opening of an ICC investigation is a disservice to the cause of justice, which will undermine the prospect of a negotiated settlement to the Israeli-Palestinian conflict.”
The Ministry of Foreign Affairs of Turkey stated: "The ICC decision will also contribute to the implementation of the Resolution on the Protection of the Palestinian Civilian Population, which was adopted at the UN General Assembly, under the leadership of Turkey during its Summit Presidency of the Organization of Islamic Cooperation".
Reactions from civil society
Many Coalition members have reaffirmed the belief that an investigation is a necessary step towards ending the culture of impunity that has long prevailed in Palestine and in the region, and ensuring peace, security and justice for Palestinian and Israeli victims.
Al-Haq, Al Mezan Center for Human Rights (Al-Mezan), the Palestinian Centre for Human Rights (PCHR) and Al Dameer Association for Human Rights welcomed the ICC Prosecutor announcement and stated that “[i]t is imperative that the ICC carry out a full, thorough and comprehensive investigation and hold to account those responsible for the commission of international crimes, inclusive of war crimes and crimes against humanity, in Palestine. We urge that there be no undue delay, and that the utmost urgency be brought to bear. Israel’s occupation of Palestinian territory has been characterized by the widespread violation of the human rights of Palestinians, and the commission of repeated and ongoing apparent war crimes and crimes against humanity, facilitated by an environment of impunity.”
On 13 March 2021, Al-Haq sent a letter to High Representative of the European Commission and European Union (EU) member states after certain EU member states statements rejected the ICC decision on the territorial jurisdiction over the Occupied Palestinian Territory, and the OTP announcement on the opening of a full investigation on the Situation in Palestine. The letter stressed that “Palestine can no longer be treated as an exception to the application of the international rule of law” and “calls on all state parties to the Rome Statute [...] to reaffirm their commitment to fully cooperate with the Office of the Prosecutor as per the obligations set forth in Article 86 of the Rome Statute."
Al-Haq also published an updated Q&A on the situation in the state of Palestine at the ICC.
Balkees Jarrah, Associate director of International Justice in Human Rights Watch stated that “[t]he ICC prosecutor´s decision to open a Palestine investigation moves Israeli and Palestinian victims of serious crimes one step closer to obtaining a measure of justice that has for too long eluded them. (…) All eyes will be also be on the next prosecutor Karim Khan to pick up the baton and expeditiously move forward while demonstrating firm independence in seeking to hold even the most powerful to account. ICC member countries should stand ready to fiercely protect the court’s work from any political pressure.”
The Center for Constitutional Rights (CCR) issued a statement affirming: "The ICC’s decision is a testament to the decades-long principled and tireless efforts by Palestinian advocates, often at personal risk and under difficult circumstances, to break the cycle of impunity for crimes committed against Palestinian civilians. Today marks an important step in a broader human rights struggle towards justice for Palestine".
The International Federation for Human Rights (FIDH) welcomed the decision and stated: “FIDH welcomes this landmark decision, in line with our observations filed in March 2020, and calls upon the Prosecutor to proceed with a full-fledged investigation and prosecutions into the international crimes committed in Palestine”.
Matthew Cannock, Head of Amnesty International’s Centre for International Justice, stated that “[t]he ICC investigation provides the first genuine prospect for thousands of victims of crimes under international law to gain long overdue access to justice, truth and reparations” and added that “[t]he decision sends a clear message to all perpetrators of crimes under international law in the OPT – you shall not escape justice.”
Background
On 1 January 2015, the State of Palestine lodged a declaration under Article 12(3) of the Rome Statute of the ICC accepting the jurisdiction of the Court over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014."
On 2 January 2015, Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General.
On 16 January 2015, the Office of the Prosecutor (OTP) of the ICC opened on its own initiative a preliminary examination into the situation in Palestine.
On 1 April 2015, the Rome Statute entered into force for the State of Palestine.
On 22 May 2018, pursuant to articles 13(a) and 14 of the Rome Statute, the State of Palestine referred the situation in Palestine for investigation to the ICC and specifically 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."
On 13 July 2018, PTC I ordered the Registry to establish a system of public information and outreach activities for the benefit of affected communities of the situation in Palestine.
On 20 December 2019, ICC Prosecutor Fatou Bensouda announced that her office has determined that there is reasonable basis to proceed with an investigation into alleged Rome Statute crimes committed in the situation in Palestine.
With this announcement, the OTP concluded a five-year preliminary examination into the situation in Palestine. As a State Party to the Rome Statute since 2015, Palestine formally referred the situation to the ICC Prosecutor on 22 May 2018, and therefore, the Prosecutor did not need to seek authorization from the ICC Pre-Trial Chamber before proceeding to open an investigation. However, the Prosecutor has requested PTC judges to rule on the Court’s territorial jurisdiction in this situation before proceeding to investigate, citing “the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted.”
On 23 December 2019, the OTP filed supplementary information to its request for a ruling on the Court’s territorial jurisdiction in Palestine.
On 22 January 2020, the OTP made a formal request to the Judges of Pre-Trial Chamber I (''Chamber'') for a ruling to clarify the territorial scope of the Court's jurisdiction in the Situation in Palestine. The Office set out its legal position, but encouraged the Chamber to hear views and arguments from all stakeholders before deciding the specific jurisdictional question before it. The Chamber did so, hearing all points of view.
On 5 February 2021, the Pre Trial Chamber I of the ICC determined by majority that the Court may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. In this majority ruling, the Chamber stressed that it was not determining whether Palestine fulfilled the requirements of statehood under public international law, or adjudicating a border dispute, or prejudging the question of any future borders; it was solely determining the scope of the Court's territorial jurisdiction for the purposes of the Rome Statute. Such matters remain to be determined in bilateral discussions between Israeli and Palestinian authorities in the context of a negotiated agreement.
