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International Criminal Court (ICC) Headquarters, The Hague, Netherlands
Published by IMEMC News
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by Palestinian Centre for Human Rights (PCHR)
February 9, 2021

On Friday, 5 February 2021, over one year since the Office of the Prosecutor closed its preliminary examination into the Situation in the State of Palestine, the Pre-Trial Chamber of the International Criminal Court (ICC) issued its decision affirming that the Court has full territorial jurisdiction over the occupied Palestinian territory (oPt), i.e. the West Bank, including East Jerusalem, and the Gaza Strip. Al-Haq, Al Mezan Center for Human Rights, the Palestinian Centre for Human Rights and Addameer Association for Supporting Prisoners and Human Rights (the Coalition) welcome this decision and stress that immediate action must be taken by the Prosecutor to ensure justice and accountability for Palestinian victims.

A critically important step towards ensuring the rule of law, the decision also marks an important step towards ending impunity, while ensuring the dignity of the Palestinian people who have been denied their right of self-determination and subjected to a criminal regime of apartheid, forced displacement, the transfer in of nationals of the Occupying Power, extensive destruction and appropriation of property, pillage, wilful killings and persecution – among other crimes all crimes within the jurisdiction of Court. Our Coalition notes that Israel’s subjugation of the protected Palestinian population through raids, arrests and mass incarceration, are inhumane acts of an institutionalized regime of racial domination and oppression, and amount to the crime of apartheid; it is imperative that the Prosecutor include acts of apartheid in the scope of her investigation.

The decision confirmed the State of Palestine, which joined the Court in 2015, as a full and legitimate State Party to the Rome Statute, and the entirety of the oPt as within the scope of territorial jurisdiction for investigation into international crimes. The Pre-Trial Chamber ruled that the Prosecutor has the full authority to investigate all war crimes and crimes against humanity that have taken place in the oPt and made clear that the Oslo Accords are not an obstacle to the Court investigating and prosecuting Israeli personnel, including the Israeli occupying forces and Israeli authorities in the occupied West Bank, whether they are in Area C or illegal Israeli settlements. Similarly, the Chamber affirmed the Court’s full jurisdiction over the Gaza Strip since June 2014, including the Israeli military’s attacks on unarmed protestors as part of the Great Return March.

Our Coalition continues to work tirelessly in pursuit of justice and accountability at the ICC, submitting six substantial communications and thousands of eyewitness files to the Office of the Prosecutor, along with an amicus curaie submission to the Pre-Trial Chamber in March 2020. Our Coalition is routinely faced with hostile measures of collective punishment from Israel, which are characterized by a climate of fear and inclusive of a protracted campaign of smears and death threats – all designed to foil, undermine, and deter Palestinian engagement with the Court. Meanwhile, direct and indirect threats from Israel and the United States continue in the form of the United States Executive Order 13928, intended in part to obstruct the pursuit of Palestinian justice at the ICC, and amounting to an egregious politicization of the Court and an “unprecedented attack … against the Court, the Rome Statute system of international criminal justice, and the rule of law”. We call on the Biden administration to stand with the “victims of unimaginable atrocities that deeply shock the conscience of humanity” and rescind Executive Order 13928 in full.

General Director of Al-Haq, Shawan Jabareen, stressed the urgency of immediate action: “With this confirmation from the Pre-Trial Chamber, and in the context of ongoing attacks on the collective and individual rights of the Palestinian people and Israel’s national judicial shield of impunity, it is imperative that the Prosecutor immediately moves to begin investigating and prosecuting the full array of international crimes, including war crimes and crimes against humanity, perpetrated in the occupied Palestinian territory. Today, after seventy years of ongoing Nakba, Palestinian victims of Israel’s international crimes are one step closer to having their rights vindicated by the International Criminal Court.”

General Director of Palestinian Centre for Human Rights, Raji Sourani, recalled that: “the Prosecutor, in her 2020 Report on Preliminary Examination Activities, recognized that there is a reasonable basis to believe that members of the Israeli military had committed the war crimes of wilful killing of unarmed civilian protestors in the Gaza Strip, this decision means that the international community will no longer accept Israel’s subjection of Palestinian civilians in Gaza to the inhumane closure and brutal military offensives. Today, hope in the international justice system and the viability of the ICC to continue as an international Court to end impunity for grave crimes that ‘threaten the peace, security and well-being of the world’ has been restored.”

General Director of Al Mezan Center for Human Rights, Issam Younis, explained that given: “the prolonged unlawful closure of the Gaza Strip, and the systematic denial of the right of return to Palestinian refugees and exiles, the ICC ranks amongst the final avenues in which Israel’s pervasive and systemic culture of impunity for grave international crimes and widespread serious human rights violations may be challenged. The Prosecutor must now move swiftly to advance the files, including for the full-scale military assault on Gaza in 2014 and regular targeting of Palestinian civilians, including children. Each day of inaction costs Palestinian lives”.

Our Coalition extends its thanks and applauds the work of everyone who has brought the fight for justice and accountability in Palestine to this point. Palestinian, regional, and international civil society, the victims and their legal representatives who have engaged tirelessly with the Court, scholars and legal experts, advocates, activists, human rights defenders, and all those across the world fighting for an end to impunity – with their international solidarity and support, the struggle for dignity and freedom for the Palestinian people continues.

Subjected to an apartheid regime, protracted occupation, an aggressive settler colonial enterprise, prolonged closure in the Gaza Strip, and the systematic denial of the right of return to Palestinian refugees and exiles, the Pre-Trial Chamber’s decision marks an important step towards ending impunity in Palestine; however, it must be followed by courageous and effective action by the Office of the Prosecutor. Our Coalition calls on third States and the international community to fully cooperate with the Office of the Prosecutor as per the obligations set forth in Article 86 of the Rome Statue, and in line with Common Article 1 of the four Geneva Conventions and Article 146 of the Fourth Geneva Convention, to ensure the arrest and transfer to the Hague of persons investigated and accused of international crimes in the oPt, to prevent the further continuation of international crimes against the Palestinian people.
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ICC Approves Probe Into Possible War Crimes by Israel, Hamas in Palestinian Territories

Netanyahu accuses court of persecuting Israel for political reasons ■ U.S. State Dept. says it has 'serious concerns' over ICC exercising jurisdiction in non-member countries

by Judy Maltz and Noa Landau for Haaretz
Feb. 5, 2021

The International Criminal Court in The Hague approved on Friday the prosecutor's request to open legal proceedings against Israel and Hamas on suspicion of committing war crimes in the West Bank, East Jerusalem and the Gaza Strip.

Judge Marc Perrin de Brichambaut of France and Judge Reine Alapini-Gansou of Benin accepted the findings of Prosecutor Fatou Bensouda’s preliminary investigation from December of 2019 that there is a basis for investigating the matter further, and ruled that the court does have jurisdiction in the Palestinian territories, rejecting Israel's argument that it lacks such authority. The ruling passed with a 2-1 vote, with Presiding Judge Peter Kovacs of Hungary issuing a dissenting opinion.The court noted that it is “not constitutionally competent to determine matters of statehood that would bind the international community,” explaining that its ruling on jurisdiction is “neither adjudicating a border dispute… nor prejudging the question of any future borders.”

"Today, the court proved once again that it is a political body and not a judicial institution," Prime Minister Benjamin Netanyahu said of the news.

"The court ignores real war crimes, and instead persecutes Israel, a country with a stable democratic regime that holds up the rule of law and is not a member of the court. With this decision, the court harmed democratic nations' right to defend themselves from terrorism and played into the hands of elements that undermine efforts to expand the circle of peace." Netanyahu added, "We will continue to protect our citizens and our soldiers in every way from legal persecution."

A senior Israeli official in the Justice Ministry said that an investigation had yet to be opened nor had any particular individuals been targeted following the court's decision. The official added, "We are preparing to mount a full defense for any Israeli citizens that the court attempts to legally persecute if an investigation is opened."

The Palestinian Foreign Ministry meanwhile hailed a "historic day for the principle of accountability" and said it was ready to cooperate.

In Washington, State Department spokesman Ned Price said: "We have serious concerns about the ICC's ability to exercise jurisdiction over Israeli personnel. We have always taken the position that the court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council. This decision just came out, we're aware of it, and we're reviewing it.

Price tweeted later Friday that "The United States objects to today’s [ICC] decision regarding the Palestinian situation. Israel is not a State Party to the Rome Statute," adding "We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly."

Foreign Minister Gabi Ashkenazi said the decision “distorts international law and turns this institution to a political tool in the hands of anti-Israel propogandists. The International Criminal Court has no jurisdiction to discuss the Palestinian case.

“The judges’ decision is a prize for Palestinian terror and the refusal of the Palestinian Authority to return to direct negotiation with Israel, and contributes, in practice, to polarizaiton between the sides,” he continued. “We call on countries that finds importance in the international justice system and opposes its political exploitaiton to respect countries’ sovereign right to choose not to accept the court’s authority. The State of Israel will use every method necessary to protect its citizens.”

Israeli Ambassador to the United States Gilad Erdan tweeted Friday that the decision "is distorted and antisemitic," adding that it is an "attack on Israel and all democracies, undermining our ability to defend civilians against terrorism."

He added that "The court was established to investigate the world's gravest war crimes, but instead it meddles in political disputes, rewarding Palestinian terrorists and pushing the Palestinians further away from the momentum of peace now taking place in our region."

The prosecutor announced in late 2019, after issuing a number of warnings, that there was a basis for launching a probe against Israel and Hamas on suspicion of war crimes in the territories since 2014, in the wake of a petition by the Palestinian Authority.

Bensouda initially asked of the court to rule on the question of its territorial jurisdiction in the West Bank and Gaza. She did so because Israel argues that only countries with sovereignty can give the court criminal jurisdiction and that the matter is a political dispute.

Besouda wrote in 2019 that "Based on the available information, there is a reason to believe that war crimes were committed in the context of the 2014 hostilities in Gaza," referring to Operation Protective Edge. She also wrote that available information shows that "The Israel Defense Forces intentionally launched disproportionate attacks in relation to at least three incidents which the ICC has focused [on],” which intentionally lead to killings and a significant number of injuries.

"There is a reasonable basis to believe that… members of the Israeli authorities have committed war crimes by transferring Israeli civilians into the West Bank," Bensouda said, adding that "Despite the clear and enduring calls that Israel cease activities in the Palestinian Territories [that have been] deemed contrary to international law, there is no indication that they will end. To the contrary, there are indications that they may not only continue, but that Israel may seek to annex these territories."

She then cited Netanyahu's campaign promise in August and September 2019 to annex the Jordan Valley should he win reelection.

In relation to Gaza, she wrote: “The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”

The prosecutor added that there is "A reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes” during Operation Protective Edge, including “Intentionally directing attacks against civilians and civilian objects, using protected persons as shields” and torture.

In July, U.S. President Donald Trump, in coordination with Israel, ordered the levying of sanctions on individuals and groups involved in the ICC investigation of suspected U.S. war crimes in Afghanistan. Senior administration officials said a number of times that they would also see the decision to investigate Israel as a “political” decision that may provoke a further American response. The U.S. decision triggered a wave of opposition by dozens of countries, which this week affirmed their support for the international court.

Ben Samuels and Reuters contributed to this report.

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