(New York) – The International Criminal Court (ICC) prosecutor’s decision on January 16, 2015, to open a preliminary examination into the situation in Palestine is a potential first step toward reducing the impunity in the Israeli-Palestinian conflict that has left thousands of victims without justice, Human Rights Watch said.
The prosecutor’s decision followed overdue but positive moves by Palestinian authorities to join the ICC treaty and to accept the court’s jurisdiction over crimes committed on or from Palestinian territory since June 13, 2014. Governments that have criticized Palestine’s decision to give the ICC a mandate or have moved to sanction Palestine in retaliation should end such pressure and support universal ratification of the court’s treaty, Human Rights Watch said.
“As the prosecutor’s office determines whether the next step of a formal investigation is warranted, we expect it will scrutinize alleged crimes impartially regardless of who is responsible,” said Balkees Jarrah, international justice counsel at Human Rights Watch. “Other countries should refrain from trying to interfere with the examination and let the prosecutor get on with her job.”
During the preliminary examination phase, the ICC prosecutor will determine whether the criteria have been met to pursue a formal investigation. The prosecutor always opens preliminary examinations as a matter of policy after receiving declarations accepting the court’s jurisdiction. On January 1, 2015, the Palestinian government lodged such a declaration, giving the court a mandate back to June 13, 2014. The ICC prosecutor is conducting eight other preliminary examinations in situations around the world, including Afghanistan, Ukraine, Georgia, Colombia, and Nigeria.
Following the prosecutor’s announcement about initiating an examination, Israel’s foreign minister, Avigdor Lieberman, said he would recommend that his government not cooperate with the court. Israel, which is not party to the ICC treaty, also announced steps to lobby ICC member countries to cut funding to the court. The US State Department issued a statement condemning the ICC prosecutor’s decision. However, some of the court’s top financial contributors, including the United Kingdom, France, and Germany, pledged their continued support for the ICC.
The ICC prosecutor’s decision came after Palestinian authorities took steps to join the court in the face of strong objections expressed by some countries, including the United States and Israel. On January 2, 2015, Palestinian authorities transmitted a copy of Palestine’s ICC accession instrument to the United Nations Secretariat. As depository for the ICC treaty, the UN secretary-general officially accepted the document on January 6 and circulated a notification indicating that the ICC treaty would come into effect for Palestine on April 1, making it the 123rd member of the court.
The ICC jurisdiction in relation to Palestine now covers serious crimes, including war crimes and crimes against humanity, dating back to June 13, 2014, committed on or from Palestinian territory. Such crimes include indiscriminate attacks on civilians, whether committed by Israelis or Palestinians – including abuses during the 2014 conflict in Gaza. Palestinian ICC membership could narrow the accountability gap for serious international crimes and contribute to justice for victims of abuses, Human Rights Watch said.
Human Rights Watch documented unlawful attacks, including some that may amount to war crimes, during the 2014 hostilities in Gaza.
Israeli forces intensively bombarded the Gaza Strip from the air, land, and sea, severely affecting the civilian population. According to the UN Office for the Coordination of Humanitarian Affairs, more than 2,250 Palestinians were killed, including 1,563 civilians, of whom 538 were children and 306 were women. Five months after the hostilities ended, thousands of unexploded remnants of war remain dispersed throughout the Gaza Strip, and about 100,000 people are still displaced; some 22,000 homes were destroyed or severely damaged during the conflict.
Palestinian armed groups fired thousands of indiscriminate rockets toward Israeli population centers; stored rockets in empty school buildings; summarily executed alleged Palestinian “collaborators” with Israel; and deployed their forces without apparently taking all feasible precautions to prevent harm to civilians, in violation of international law. Sixty-seven Israeli soldiers and five civilians in Israel, one a child, were killed.
On July 23, the UN Human Rights Council established a Commission of Inquiry to impartially investigate all parties’ conduct during the hostilities in Gaza as well as military operations in the West Bank beginning on June 13. Israel refused to grant the commission access to Gaza, which the commission has also not been able to reach via Egypt.
The ICC’s statute also classifies as a war crime the “direct or indirect” transfer of civilians by an occupying power into occupied territory – a category that would include the Israeli government’s facilitation of the transfer of its citizens into settlements in the West Bank, including East Jerusalem. Another war crime under the statute is the “forcible transfer” of protected people in an occupied territory – in this case Palestinians – off their lands, such as by demolishing their homes and preventing them from returning.
Since Benjamin Netanyahu became Israel’s prime minister in 2009, Israel has begun construction of more than 10,400 settlement homes. Israeli demolitions in the West Bank during the same period left more than 5,333 Palestinians homeless. Demolitions left 1,103 Palestinians homeless in 2013 and 1,177 in 2014.
A number of countries have condemned Palestine’s decision to join the ICC, claiming that it will obstruct a return to peace negotiations. The US described the move as “counterproductive” and stated that it continued to “oppose actions against Israel at the ICC as counterproductive to the cause of peace.” Some US Congress members have threatened to cut off aid to the Palestine Authority if it uses Palestine’s ICC membership to pursue criminal charges against Israeli officials at the ICC. Israel halted the transfer of more than US$120 million in tax revenue that Israel collects on behalf of the Palestinian authorities. Canada, an ICC state party, denounced the Palestinian decision as a “concerning and dangerous development” and a “huge mistake.” All three countries filed communications with the UN stating their position that Palestine is ineligible to join the ICC on the ground that it does not qualify as a state under international law.
In the years leading up to Palestine’s decision to give the ICC jurisdiction, leading EU member states, including the United Kingdom and France, at various times publicly opposed any move by Palestine to seek access to the court. This position violated those countries’ obligations as ICC member states to support the court’s purpose of ensuring that serious international crimes do not go unpunished, Human Rights Watch said.
“If anything, the ICC’s involvement could help deter war crimes that today fuel animosity and undermine the trust needed for a peace accord,” Jarrah said. “Countries that rightly advocate for justice for international crimes in Syria, North Korea, and elsewhere should not insist on leaving Palestine an accountability-free zone.”
Palestine is the fifth member of the League of Arab States to join the ICC. Tunisia joined the court in 2011, Jordan ratified the ICC treaty in 2002, and Comoros and Djibouti are also ICC member states. Palestine’s decision to join the ICC treaty may help build momentum for further Arab League states to become members of the court, Human Rights Watch said.
In addition to the ICC treaty, Palestine also acceded to 15 other treaties, including the Convention on Cluster Munitions, the Convention on the Law of the Sea, the Convention Against Transnational Organized Crime, and the Convention on the Political Rights of Women. In April 2014, Palestine had acceded to 20 other international treaties and conventions, most relating to human rights and the laws of war.
“Palestine’s accession to the ICC is a positive step for justice and the rule of law,” Jarrah said. “Countries that purport to share those values should applaud it.”