The
ICC Prosecutor warns Israel about Gaza killings
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 … “
She continued:
“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:
Article 8 of the Rome Statute lists the actions that
constitute a “war crime”. They include:
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.
Conclusion
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.
End
note
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?