Happenings in The Hague: The Palestine situation at the ICC

1. I heard things are moving with the situation of Palestine at the ICC. What is going on?

You heard absolutely right!

As you may remember, on 15 January 2015, the Prosecutor announced the initiation of a preliminary examination into the situation in Palestine, following the submission of a declaration by the State of Palestine accepting the Court’s jurisdiction over international crimes committed since 13th June 2014 on its territory, namely the West Bank, including East Jerusalem, and Gaza. In December 2019, the Prosecutor concluded that an investigation is warranted, yet- there was a matter over which the Prosecutor needed confirmation: what is the territory over which the Court can exercise jurisdiction? The Prosecutor’s conclusion was the Palestinian territories comprise the West Bank, including East Jerusalem, and Gaza; but for certainty, the Prosecutor wanted a confirmation from a panel of judges. And on Friday 5 February 2021, Pre-Trial Chamber I decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, “a State party to the ICC Rome Statute” [1] , extends to the territory occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.

2. Wait, that was too fast. What is a preliminary examination again?

Right, first things first! A key point to keep in mind is that a preliminary examination is not an investigation, but a phase that determines whether or not an investigation should be opened. In essence, a preliminary examination is a phase during which the Prosecutor determines whether the requirements for proceeding with an investigation have been met. Without meeting these requirements, the Prosecutor cannot proceed with an investigation.

3. Okay- what are these requirements, exactly?

Great question. The requirements for proceeding with an investigation are set out in the Rome Statute, the founding treaty of the ICC. Firstly, the Office of the Prosecutor (OTP) will assess whether war crimes, crimes against humanity or genocide may have been committed, and whether they were committed on a territory or by nationals of a State Party. These crimes should also be committed within the temporal jurisdiction of the Court. Secondly, the OTP will examine whether domestic investigations or prosecutions over these same crimes and perpetrators are taking place in the relevant States. This is important, because the ICC is a Court of last resort and will only intervene where States are unable or unwilling to hold those allegedly responsible for the crimes to account. Thirdly, these crimes have to be considered grave enough to warrant the intervention of the Court. And last, but not least, the Prosecutor should be satisfied that an investigation would not be against the interests of justice. Only if and when all these requirements are met, the Prosecutor can open an investigation.

4. I might be confused, but didn’t Palestine refer its situation to the Court? Wasn’t the consequence of the referral that the Prosecutor does not need judicial authorisation to open an investigation?

Yes, you are right. On 22 May 2018, Palestine did refer its situation since 13 June 2014 to the ICC. The existence of a State referral indeed means that the Prosecutor does not need to seek the authorisation by a Pre-trial Chamber to proceed with an investigation once the requirements we talked about are met. And, just to be clear, the Prosecutor is not asking for authorisation here. What she is asking for is a confirmation of her position as to on what territory the Prosecutor can investigate alleged crimes.

5. Then, why did the Prosecutor request the opinion of the Pre-Trail Chamber on this issue?

The Prosecutor recognises that the scope of the Court’s jurisdiction in the territory of Palestine appears to be in dispute between those States most directly concerned (Israel and Palestine). She is requesting the ruling of the Pre-Trial Chamber confirming the scope of the Court’s territorial jurisdiction to ensure judicial certainty and an effective investigation and prosecution and to promote judicial economy.

The Prosecutor argues that the Court’s territorial jurisdiction covers the West Bank, East Jerusalem and Gaza. Bold statement, you say? Well, not really, since it is supported by the UN chief deciding body as well as by a significant representation of the of international institutions. The UNGA Resolution 67/19 recognising Palestine as a State, in its paragraph 1 states that the UNGA: “Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967”. [2] This view has also been endorsed by other relevant international institutions like the UN Security Council, the International Court of Justice or the UN Human Rights Council. FIDH maintains that the confirmation of the Court’s territorial jurisdiction in the Occupied Palestinian Territory is warranted by the Court’s mandate and raison d’être.

6. So was the issue of Palestine’s statehood revisited by the Pre-Trial Chamber decision of 5 February, because that has come up before, right?

Indeed, back in January 2009 Palestine declared its acceptance of the ICC’s jurisdiction according to article 12(3) of the Rome Statute without being a State Party. The former Prosecutor commenced a preliminary examination into the situation of Palestine. However, in April 2012, he announced the closure of the preliminary examination because of uncertainties concerning the statehood of Palestine under public international law.

Nevertheless, the current Prosecutor argued, and FIDH concurred, [3] that the Court can investigate the crimes committed in Palestine because the issue about Palestine’s statehood was solved by its accession to the Rome Statute, and that the Pre-Trial Chamber needed not revisit this issue. This was made possible by the change of status of Palestine by the United Nations General Assembly. The UNGA, in its resolution 67/19 (29 November 2012) upgraded Palestine from “observer entity” to “non-member observer State ”. [4] Consequently, Palestine, using this new afforded legal capacity, submitted its instrument of accession to the Rome Statute of the International Criminal Court on 2 January 2015, and became a State Party on 1 April 2015. [5]

In its 5 February 2021 decision, Pre-Trial Chamber I recalled that the Court is not competent to determine matters of statehood that would bind the international community. It stated that “[b]y ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders. The Chamber’s ruling is for the sole purpose of defining the Court’s territorial jurisdiction [6] . The Pre-Trial Judges rather confirmed that Palestine is a State Party to the Rome Statute, noting that the accession process of Palestine to the ICC Statute “followed the correct and ordinary procedure” which remained uncontested. They also noted that Palestine has engaged and interacted with the Assembly of States Parties and other organs of the ICC, demonstrating its capacity to participate in the statutory framework of the ICC by assuming its rights and responsibilities as a State Party under the Statute, including by contributing to the Court’s budget and participating in the adoption of ASP resolutions. Indeed, since its accession to the Statute, the ASP, the Court, and its organs have treated Palestine in a manner equal to all other Parties to the Statute. The Pre-Trial Chamber found, that, as a consequence, Palestine was a State Party to the ICC Statute, and that it qualified as “[t]he State on the territory of which the conduct in question occurred’ for the purposes of article 12(2)(a) of the Statute.”

7. It seems that the Prosecutor really believes in conducting the investigation. What does she want to investigate exactly?

The OTP is focusing its inquiries into events from June 2014 onwards. On 7 July 2014, Israel launched “Operation Protective Edge”, which lasted 51 days. Several Palestinian armed groups (“PAGs”) participated in the hostilities. The hostilities ended on 26 August 2014 when both sides agreed to an unconditional ceasefire. [7] The Prosecutor states that war crimes were committed by the Israeli Defense Forces as well as members of Hamas and PAGs. The crimes targeted by the Prosecution are:
• Wilful killings, torture, inhuman treatment or serious injury to body or health;
• Intentionally attacking objects or persons using the emblems of the Geneva Conventions;
• Intentionally attacking civilians and civilian objectives or using protected persons as shields;
• Depriving protected persons of the right to a fair trial;
• Outrages to personal dignity; and
• Transfer by occupying Power of its own population into occupied territory.

8. Does this mean that the Court has jurisdiction over all parties involved, including Israeli nationals?

The ICC can exercise its jurisdiction if the State on the territory of which the conduct in question occurred is a State Party (see Article 12(2)(a) of the Rome Statute). Since Palestine has accepted the jurisdiction of the Court over all its territory, every individual accused of having committed any of the crimes contained in the Rome Statue on Palestine’s territory is subject to the jurisdiction of the Court, as long as the temporal conditions for the Court’s jurisdiction are also fulfilled.

In this particular instance, the Prosecutor notes that the admissibility of cases relating to members of the Israeli Defense Forces depends on the scope and the genuineness of Israeli domestic proceedings and that, at this stage, the information gathered has not allowed for a formal decision. However, in relation to the crime of transfering its own population into the West Bank by the Israeli government that would arise from the investigation, the Prosecutor is convinced of its admissibility. This is also the case with regards to the crimes committed by Hamas and the PAGs.

9. What are the implications of the decision of the Pre-Trial Chamber in the future investigation?

There are indeed implication vis à vis the future investigation.

The confirmation of the territorial jurisdiction of the Court over the Occupied Palestine Territory, comprising Gaza, and the West Bank, including East Jerusalem, extends the area over which the Prosecutor will be able to conduct her investigation, and therefore reach more victims and survivors, who will be able to participate in the proceedings at the Court. More specific questions on jurisdiction will be examined when and if the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear.

10. And besides the technical and legal implications, what does this mean for the victims? What should they expect?

In July 2018, ICC Pre-Trial Chamber I stipulated in the case of Palestine that: “Victims have ... the right to be heard and considered, at stages of the proceedings determined to be appropriate, and the Court has the duty to effectively enable them to exercise this right.” [8] The PTC also established that if an investigation were opened, the Registry would increase its activities and inform and assist victims in more detail regarding their potential participation in conformity with the Statute.

So far, victims have contributed to the preliminary examination by helping the Prosecutor to gather evidence to support the opening of an investigation. On 28 January 2020 the PTC invited the States of Palestine and Israel and the victims to submit observations regarding the Prosecutor’s request related to the territorial scope of her jurisdiction over the situation. In their observations filed in March 2020, victims underline their full support to the immediate opening of an investigation by the Office of the Prosecutor. Particularly, victims also request that the Pre-Trial Chamber takes the campaign of threats and intimidation by Israeli officials and their supporters under advisement and considers taking any action it deems appropriate to ensure the safety and security of victims, witnesses, and other interlocutors in these proceedings. [9]

Thus far, attempts to genuinely investigate and prosecute these alleged international crimes before the Israeli judicial system have largely been unsuccessful. Palestine has submitted to the Court that its ability to conduct effective investigations and prosecutions of international crimes is severely curtailed by the on-going occupation. Considering the chronic impunity in this situation, the Court represents the last resort for accountability and justice for the victims.

11. That was helpful, thank you. One last question: what is going to happen now?

Now that the PTC has agreed with the Prosecutor and allowed for the investigation to proceed over the entire Palestinian territory, including Gaza, and the West Bank (including East Jerusalem), this will initiate the official criminal proceedings. The ICC Prosecutor is now to effectively open a full-fledged investigation and initiate prosecutions for international crimes committed in Palestine since June 2014. Following the PTC decision of 5 February, the Office of the Prosecutor welcomed the new “judicial clarity on the scope of the ICC territorial jurisdiction in the Situation in Palestine” and declared that it was “carefully analysing the decision and [would] then decide its next step guided strictly by its independent and impartial mandate and obligations under the Rome Statute” [10] . The Prosecutor, who during the preliminary examination only had access to publicly available information, will have wider and stronger means to gather evidence. Her goal will be to prove beyond all reasonable doubt that the alleged crimes were committed by to be identified accused.

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