As the Israeli occupation of the West Bank and Gaza entered its 50th year, Human Rights Watch has called on the International Criminal Court (ICC) prosecutor to open a formal investigation into serious international crimes committed in Palestine by Israelis and Palestinians.
Given strong evidence that serious crimes have been committed in Palestine since 2014, including new population transfers into occupied territories, the ICC prosecutor, Fatou Bensouda, should undertake a formal probe consistent with the ICC’s Rome Statute, Human Rights Watch said. An ICC investigation is needed given the grave nature of many of the violations and the pervasive climate of impunity for those crimes.
“After nearly a half century of impunity, it’s time that those responsible for some of the gravest crimes, whether against Palestinians or Israelis, pay the price,” said Sarah Leah Whitson, Middle East director. “The ICC prosecutor should move forward and investigate the crimes by all parties so that the victims can obtain a measure of justice that has long eluded them.”
Human Rights Watch issued its statement on the 49th anniversary of the start of the June 1967 (or Six Day) War that resulted in the occupation of the Palestinian territories.
The ICC treaty officially went into effect for Palestine on April 1, 2015, giving the court jurisdiction over serious crimes in violation of international law, including war crimes and crimes against humanity committed on or from Palestinian territory. On January 1, 2015, the Palestinian government gave the court a mandate back to June 13, 2014, to cover the 2014 conflict in Gaza.
Based on her policy for responding to declarations accepting the court’s jurisdiction, Bensouda opened a preliminary examination into the situation in Palestine on January 16, 2015. During the preliminary examination phase, the prosecutor determines whether the criteria have been met to merit pursuing a formal investigation on the basis of information that is either publicly available or submitted to her office. Human Rights Watch wrote to Bensouda in November 2015, to share materials from its own research that are relevant to her inquiry.
The prosecutor’s current preliminary inquiry includes analyzing whether crimes specified in the Rome Statute, the ICC’s founding document, have been committed; whether those crimes are sufficiently grave to merit the court’s attention; and whether national authorities are genuinely carrying out credible investigations and, if appropriate, prosecutions of the cases under ICC consideration, since the ICC is a court of last resort. The prosecutor’s 2015 preliminary examinations report, issued on November 12, said that her office was assessing whether there was a reasonable basis to believe that ICC crimes have been or are being committed in or from Palestine.
During the 2014 hostilities in Gaza, Human Rights Watch, as well as a United Nations Commission of Inquiry and local and international human rights organizations, documented unlawful attacks by the Israeli military and Palestinian armed groups, including apparent war crimes. Fighting killed more than 1,500 civilians in the Gaza Strip, damaged hospitals and other civilian infrastructure, and destroyed the homes of more than 100,000 Palestinians. Palestinian armed groups launched rockets and fired mortars toward Israeli population centers, killing five civilians and causing thousands to temporarily leave their homes. Palestinian armed groups also endangered Palestinian civilians by firing from populated areas and hiding weapons in UN schools, according to UNRWA.
The UN Commission of Inquiry found substantial information suggesting that Israeli forces and Palestinian armed groups had committed serious violations of the laws of war and that such violations appeared to be part of policy decisions by the leadership on both sides.
The alleged crimes at issue are not limited to the 2014 Gaza fighting, Human Rights Watch said. The ICC statute also classifies as a war crime an occupying power’s transfer of its own civilians “directly or indirectly” into territory it occupies. The transfer of inhabitants of the occupied territory from their homes to other places within or outside this territory is also a war crime.
Since it occupied the West Bank in 1967, Israel has actively facilitated the movement of its citizens into settlements there. Successive Israeli governments have enabled these transfers, even though settlements in occupied territories are unlawful under international humanitarian law and are integral to Israeli policies that dispossess, discriminate against, and violate the human rights of Palestinians, Human Rights Watch said. Israel’s Supreme Court, which has jurisdiction over the Israeli military’s activities in the West Bank, has declined to rule on the legality of transferring Israeli civilians into the West Bank, saying it is primarily a political issue.
A January report by the UN secretary-general on Israeli settlements said that the “presence and continued development of Israeli settlements lie at the root of a broad spectrum of human rights violations in the West Bank, including East Jerusalem.” All of these policies have continued since June 13, 2014, including new transfers of thousands of Israeli citizens into the West Bank.
Without a request by either an ICC member country or the UN Security Council, the ICC prosecutor can seek to open an investigation on her own initiative, but she would need the authorization of an ICC pretrial chamber. Judges would rely on the materials submitted by the prosecution to determine whether there is a “reasonable basis” to proceed, taking into account the court’s requirements concerning the gravity of the crimes and the inability or unwillingness of national courts to prosecute. The prosecutor’s office has acted on its own motion in the cases of Kenya, Côte d’Ivoire, and Georgia.
On June 25, 2015, the Palestinian foreign affairs minister, Riad al-Maliki, submitted information to Bensouda’s office to assist with her inquiry. Palestine submitted further information on August 3 and October 30. Staff from the prosecutor’s office also met with Palestinian officials on March 19, 2016, in Amman, Jordan, news reports said.
While Israel announced in July that it would open a dialogue with Bensouda over her preliminary examination, a senior Israeli official said that Israel intended to make clear its position that the ICC did not have any authority over the situation in the West Bank and Gaza. Israel signed but has not ratified the Rome Statute, and in 2002, it announced that it did not intend to become a member of the court. Israel is thus not under a legal obligation to cooperate with the court.
A number of Palestinian nongovernmental organizations have also submitted information for the ICC prosecutor’s consideration, including Al Mezan Centre for Human Rights, Al-Haq, Aldameer, and the Palestinian Centre for Human Rights. In recent months, an Al-Haq staff member based in The Hague received death threats that the group believed were linked to its ICC advocacy.
The ICC prosecutor has indicated that there is no specific timeline for her preliminary examination. If the prosecutor pursues a Palestine investigation, it would be the court’s 11th situation under investigation. Bensouda is also considering whether investigations are merited in Afghanistan, Colombia, and Ukraine, among others.
The ICC is mainly funded by contributions from member countries. Its financing is under pressure due to the austerity budgets of many governments, and the prosecution is struggling to carry out several much-needed investigations on its docket, including in Côte d’Ivoire and Libya. The ICC’s ability to meet the ever-increasing demand for international justice is inextricably linked to having necessary resources, Human Rights Watch said.
“The ICC prosecutor’s crowded docket should not deter her from moving forward on the Palestine situation and chipping away at the wall of impunity,” Whitson said. “ICC member countries should be stepping up with support for the court to ensure that all the preliminary examinations under way get the proper attention they deserve.”