On 22 May 2018, Riad Malki, Minister of Foreign Affairs and Expatriates of the State of Palestine, submitted a referral of the situation of Palestine to the Prosecutor of the International Criminal Court, in accordance with Article 14(1) of the Rome Statute.
The referral comes in the context of heightened use of excessive force against unarmed Palestinian protesters demanding their right to return to their homes and an end to the unlawful closure of the Gaza strip in what has become known as the ‘Great Return March’. [1] Our organisations welcome the step taken by the State of Palestine and hope it will accelerate the preliminary examination that commenced in 2015. [2]
1. What is the state referral by the State of Palestine?
The State of Palestine has submitted a state referral to the Prosecutor in line with its rights as a State Party to the ICC Statute, and requests the ICC to immediately proceed into an investigation on the situation in Palestine. [3] The referral covers crimes committed on the territory of Palestine since 13 June 2014 with no end date. [4] The State of Palestine highlights in the referral core crimes of “particular seriousness and concern to the Palestinian people” [5], such as
– the unlawful appropriation and destruction of private and public properties;
– the forcible transfer of Palestinians;
– the unlawful transfer of the Israelis into the occupied territory;
– murder and unlawful attacks on civilians;
– torture, cruel and inhumane treatment of Palestinians;
– persecution; and
– apartheid.
The State of Palestine calls on the ICC Prosecutor to ensure that these crimes form an integral part of the OTP’s investigation. [6]
2. Has Palestine referred its situation to the ICC before?
This is the first time the State of Palestine exercises the right to refer its situation to the ICC since it acceded to the Rome Statute on 2 January 2015.
Palestine submitted a declaration as a non-State party to the ICC Statute on 1 January 2015 in which it accepted the ICC jurisdiction over crimes committed on its territory since 13 June 2014, pursuant to Article 12(3) of the Rome Statute. As such Palestine gave jurisdiction over crimes committed in the context of the 2014 Israeli offensive against the Gaza Strip, known as ‘Operation Protective Edge’. [7]
Subsequently, the Office of the Prosecutor (OTP) of the ICC opened a preliminary examination into the situation of Palestine on 16 January 2015. [8]
This was the second time that Palestine accepted the jurisdiction of the ICC.
The first declaration accepting the jurisdiction of the ICC was submitted on 22 January 2009 for the purpose of ‘identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002’. [9] This declaration was made following ‘Operation Cast Lead’, Israel’s offensive on the Gaza Strip between 2008-2009 which lasted from 27 December 2008 until 18 January 2009. [10]
After more than three years of analysis, The ICC Prosecutor decided not to proceed with the preliminary examination on the basis that it did not have the authority to determine whether Palestine was a "state" for the purposes of the Rome Statute. [11]
3. What is the focus of the ongoing preliminary examination opened by the ICC Office of the Prosecutor on Palestine?
The Prosecutor opened a preliminary examination on the situation in Palestine in January 2015. A preliminary examination is the first step taken by the OTP to determine whether or not to there is a reasonable basis to proceed into an investigation. In this phase, the OTP must determine whether the legal criteria established by the ICC Statute for opening an investigation are met. The OTP has received information related to allegations of war crimes and crimes against humanity committed against the Palestinian population on the territory of the State of Palestine.
In its annual report on preliminary examinations in 2017, the OTP stated that it continued to consider relevant submissions and that it would continue to assess these “with a view to reaching conclusions on jurisdictional issues within a reasonable time frame.” [12] The OTP also clarified that it is currently looking at crimes committed in relation to settlement activities, such as the forced removal of Palestinians from their homes in the West Bank and East Jerusalem, the confiscation and appropriation of land; the planning and authorisation of settlement expansions and, in at least one instance, of a new settlement. [13] Moreover, the OTP has received information regarding the purported establishment of an institutionalised regime of systematic discrimination that allegedly deprives Palestinians of a number of their fundamental human rights. [14]
The OTP is also considering alleged crimes committed in connection to the Israeli offensive on the Gaza Strip in 2014, including attacks against civilians and civilian objects. The latter relates to attacks on or affecting residential areas and buildings; medical facilities, ambulances, and medical personnel; UN Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”) schools serving as designated emergency shelters; and various other civilian objects and infrastructure. In addition, it has been alleged that members of Palestinian armed groups committed crimes in relation to, inter alia, rocket and mortar attacks launched against Israel, the alleged use of protected persons as shields, and the alleged ill-treatment and execution of persons accused of collaborating with Israel. [15]
4. What are the criteria assessed during a preliminary examination?
The legal framework of preliminary examinations is set out in article 53(1) (a)-(c) of the ICC Statute. This article provides that, in order to determine whether there is a reasonable basis to proceed with an investigation into the situation, the Prosecutor shall consider, in a four-phase process the temporal, either territorial or personal, and material jurisdiction (phase 2); admissibility including an assessment of complementarity and gravity (phase 3); and the interests of justice (phase 4). The preliminary examination becomes public in its second phase, while the first phase consists of an initial assessment of all information on alleged crimes received under Article 15.
At the moment, the preliminary examination into the situation of Palestine is at the second phase of its assessment, namely, the analysis of the subject-matter jurisdiction.
During the preliminary examination stage the OTP is limited to receiving information on alleged crimes and may seek additional information from relevant stakeholders, including NGOs and other reliable sources that are deemed appropriate. Since the opening of the preliminary examination into the situation on Palestine, the OTP has received at least 98 communications pursuant to Article 15 in relation to the situation in Palestine since 13 June 2014. [16]
5. Will the state referral move the situation of Palestine from a preliminary examination to an investigation?
The state referral does not automatically lead to the opening of an investigation. Upon receipt of the referral from Palestine, the Prosecutor insisted that the preliminary examination “has seen important progress and will continue to follow its normal course, strictly guided by the requirements of the Rome Statute.” [17] The preliminary examination will run its course and the OTP will continue to assess whether the criteria to open an investigation would be met.
6. What does Palestine’s self-referral change?
Now that Palestine has referred its situation to the ICC, the Prosecutor does not need to seek the authorization of the ICC Pre-trial Chamber to proceed into an investigation. Instead, the Prosecutor may announce the opening of an investigation once the legal requirements are met. [18] However, the referral may expand the scope of the existing preliminary examination, which so far only focuses on alleged crimes committed since 13 June 2014. The Palestinian referral concerns “past, ongoing and future Israeli actions to promote, expand, and entrench the settlement regime, perpetrated by, or with the assistance of, the government of crimes within the court’s jurisdiction committed in all parts of the territory of the State of Palestine”. [19]