In a statement on 8 April 2018, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, warned that those responsible for the killing of Palestinians near the Gaza border with Israel might be prosecuted by the ICC. She said:
“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 and rubber-bullets. Violence against civilians – in a situation such as the one prevailing in Gaza – could constitute crimes under the Rome Statute … “
“I remind all parties that the situation in Palestine is under preliminary examination by my Office [see below]. 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. This applies to the events of the past weeks and to any future incident.”
Since the Prosecutor’s warning, the toll of Palestinian deaths and injuries has soared, 60 being killed on 14 May the day the US transferred its embassy from Tel Aviv to Jerusalem. By 12 July, according to the UN Office for the Co-ordination of Humanitarian Affairs (UN OCHA), 146 Palestinians had been killed and 15,415 injured since the protests began on 30 March. Of the injured, 8,246 required hospital treatment. One Israeli soldier has been killed by gunfire emanating from Gaza. No Israeli civilians have been killed as a result of the protests.
These protests, which are demanding an end to Israel’s blockade of Gaza and the right of return for refugees, took place in the weeks leading up to the 70th anniversary of the Nakba, when, as the Israeli state came into being, around 750,000 Palestinians were driven from their homes and have never been allowed to return. About 200,000 of these refugees were forced into Gaza, where they and their descendants live today and make up approximately 70% of Gaza’s 1.8 million population, who live in miserable conditions under a severe economic blockade imposed by Israel more than a decade ago. Small wonder that thousands of Palestinians were prepared to risk life and limb to protest about their conditions.
Palestine grants jurisdiction to the ICC
The Prosecutor’s warning is entirely justified. The ICC can try individuals accused of war crimes, crimes against humanity and genocide if it is granted the jurisdiction to do so. The Palestinian authorities granted it jurisdiction on 1 January 2015 by submitting a declaration to the ICC under Article 12(3) of the ICC’s Rome Statute “declaring that the Government of the State of Palestine hereby recognizes the jurisdiction of the Court for the purposes of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory including East Jerusalem, since June 13, 2014”.
By backdating the acceptance of ICC jurisdiction to this date, the Palestinian authorities hope that it will be possible for the ICC to indict Israeli military personnel for actions on or after that date, including during Operation Protective Edge, Israel’s military assault on Gaza in July/August 2014, when more than two thousand Palestinians were killed.
This is not the first time that the Palestinian authorities have attempted to grant the ICC jurisdiction by means of a declaration of this kind. On 21 January 2009, shortly after Operation Cast Lead, the first of Israel’s three major military assaults on Gaza, they made a similar declaration. But this was not accepted by the ICC Prosecutor, because at that time Palestine had not been recognised by the UN as a state.
It was recognised by the UN in November 2012 when the UN General Assembly passed resolution 67/19 (by 138 votes to 9) granting Palestine observer rights at the UN as a “non-member state” and specifying its territory to be “the Palestinian territory occupied since 1967”, that is, the West Bank (including East Jerusalem) and Gaza. Because of this, the Prosecutor was able to accept Palestine’s offer of jurisdiction on 1 January 2015 and to open a preliminary examination into the “situation in Palestine” on 16 January 2015 (see ICC press release, 16 January 2015).
According to the ICC Prosecutor’s Office, the goal of such a preliminary examination is “to collect all relevant information necessary to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation”. Over three years later this preliminary examination is still going on. In other words, the Prosecutor has yet to make a decision as to whether to proceed to a full investigation, which might eventually lead to the prosecution of individuals. The Prosecutor’s 2017 annual report published in December 2017 gave no indication about when this decision will be made.
(A state normally grants jurisdiction to the ICC by becoming a state party to the Rome Statute. On 2 January 2015, the Palestinian authorities deposited the relevant documents for that purpose with the UN Secretary General, Ban Ki-moon, who announced on 6 January 2015 that the Rome Statute “will enter into force for the State of Palestine on April 1, 2015”. So, if the Palestine authorities had chosen this route to granting the ICC jurisdiction, the Court would not have been able to prosecute crimes committed before 1 April 2015. That was why the Palestinian authorities chose the “declaration” route, which means that crimes committed on or after 13 June 2014, including during Operation Protective Edge, can be prosecuted.)
“Referral” by Palestine as a state party
Understandably, Palestinian leaders are frustrated that more than three years have elapsed without any obvious progress being made in bringing Israel to book for alleged offences committed in the occupied Palestinian territories over many years. These offences have continued unabated since January 2015 when the Prosecutor began her preliminary examination, the killing of over a hundred civilians by the Israeli military on the Gaza border since 30 March being the most conspicuous.
The Palestinian leaders have been providing the Prosecutor with regular monthly reports detailing what they claim are ongoing offences by Israel. And, in an effort to expedite matters, on 15 May 2018 Palestine made a formal “referral”as a state party about the “situation in Palestine” to the ICC under Articles 13(a) and 14 of the Rome Statute: “The State of Palestine, pursuant to Articles 13(a) and 14 of the Rome Statute of the International Criminal Court, refers the situation in Palestine for investigation by the Office of the Prosecutor and specifically requests 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.”
It’s unclear why this wasn’t done once Palestine became a state party to the Statute in April 2015. It’s also unclear whether a “referral” now will expedite progress towards an investigation – in her response to the “referral”, the Prosecutor implied that the preliminary examination would proceed as before.
What actions constitute a crime against humanity/war crime?
If the Prosecutor does proceed to open an investigation into the “situation in Palestine”, then charges may eventually be brought against individuals for committing war crimes and/or crimes against humanity. These individuals are likely to have been acting for the Israeli state at the time of their offence, but it’s possible that members of Hamas and other Palestinian paramilitary groups will also be indicted.
Article 7 of the Rome Statute lists the actions that constitute a crime against humanity. A key feature of such a crime is that it is an act “committed as part of a widespread or systematic attack directed against any civilian population”. Such acts include:
- deportation or forcible transfer of population
- the crime of apartheid
Article 8 of the Rome Statute lists the actions that constitute a “war crime”. They include:
- wilful killing
- torture or inhuman treatment
- extensive destruction and appropriation of property, not justified by military necessity
- unlawful deportation or transfer or unlawful confinement
- taking of hostages
- intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
- intentionally directing attacks against civilian objects, that is, objects which are not military objectives
and many more.
Transfer of civilian population into occupied territory
One of the latter, in Article 8.2(b)(viii), is “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”.
Obviously, this war crime is of particular relevance because Israel has transferred around 600,000 of its own citizens into the West Bank, including East Jerusalem, territory it has occupied since 1967. So, there is very little doubt that war crimes, as defined by the Rome Statute, have been committed – and will continue to be committed for the foreseeable future, since it is inconceivable that any future Israeli government will cease this colonisation project voluntarily or that sufficient international pressure will be applied to make it cease.
In the light of this, there is a prima facie case that the Israeli individuals responsible for this colonisation project, including the present Prime Minister, are guilty of war crimes. And it may be that Americans and others who provide funds for the project could be prosecuted for aiding and abetting their war crimes. Both the US Ambassador to Israel, David Friedman, and the US president’s son-in-law, Jared Kushner, have provided funds for settlement building.
The Mavi Marmara referral
Israel already had a brush with the ICC when in May 2013 the Union of the Comoros, which is a state party to the Rome Statute, referred the Israeli military assault on the Mavi Marmara ship on 31 May 2010 to the Prosecutor. This assault took place in international waters, when it was part of a humanitarian aid convoy to Gaza, and resulted in the deaths of 9 civilian passengers. The Mavi Marmara was registered in the Comoros Islands and under Article 12.2(a) of the Rome Statute, the ICC has jurisdiction in respect of crimes committed, not only in the territory of a state party, but also on ships or aircraft registered in a state party.
However, in November 2014, the Prosecutor, Fatou Bensouda, refused to open an investigation, despite concluding that “there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court … were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the ‘Gaza Freedom Flotilla’ on 31 May 2010”.
Nevertheless, she decided that “the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”. It is true that Article 17.1(d) of the Rome Statute requires a case to be “of sufficient gravity to justify further action by the Court”.
But, when the Union of the Comoros applied to the ICC for a review of the Prosecutor’s decision, the ICC Pre-Trial Chamber upheld the application and requested the Prosecutor to reconsider her decision not to initiate an investigation. In their conclusion, the judges asserted that the Prosecutor made a series of errors in assessing the gravity of potential cases if an investigation were carried out and urged her to reconsider her decision not to launch an investigation as soon as possible. Despite these critical words from the judges, the Prosecutor mounted an appeal against this request to “reconsider”, but her appeal was rejected by the ICC Appeals Chamber on November 2015. She was therefore obliged to “reconsider” her November 2014 decision not to mount an investigation. In November 2017, she announced that, after appropriate “reconsideration”, she was sticking to her original decision in November 2014.
Will the Prosecutor’s preliminary investigation into the “situation in Palestine” suffer the same fate? It seems unlikely. On its own, the use of live fire by the Israeli military against civilians near the border with Gaza was much more serious than Israel’s military assault on the Mavi Marmara. And there are many other relevant instances in which arguably war crimes have been committed by Israeli individuals, for example, by organising the transfer of Israeli citizens to occupied territories. So, the likelihood is that the Prosecutor will eventually find that war crimes have been committed, but it is a considerable step from that to identify the individuals responsible and build cases against them so that they can be indicted and warrants issued by the ICC for their arrest.
However, even if individuals are indicted, it’s unlikely that they will ever face trial in The Hague, since the ICC cannot try people in absentia – and, since Israel is not a party to the ICC, it has no obligation to hand people over to the ICC for trial. However, like Sudanese President Omar Hassan al-Bashir, whom the ICC charged with genocide in 2008, indicted individuals would have to avoid travelling to states that are party to the ICC lest they be arrested and handed over.
On 13 July, a Pre-Trial Chamber of the ICC issued a “Decision on Information and Outreach for the Victims of the Situation in Palestine”. In it, the Chamber ordered the ICC administration “to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine” and to “create an informative page on the Court’s website, especially directed to the victims of the situation of Palestine”.
In issuing the order, the Chamber recalled the important role played by victims in the Court proceedings, and referred to the obligation on the Court to permit the views and concerns of the victims to be presented as appropriate, including during the current preliminary examination stage. The order promised that “when and if the Prosecutor takes the decision to open an investigation, the Chamber will, in a second step, give further instructions”.
This unusual step by the Pre-Trial Chamber, which implies that victims of war crimes exist in Palestine, was taken independently of the ICC Prosecutor. Could this be a gentle nudge to her to initiate a formal investigation?