Report on Preliminary Examination Activities

(2016)

14 November 2016

/…

PALESTINE

Procedural History

109. The situation in Palestine has been under preliminary examination since 16 January 2015.15

110. The Office has received more than 86 communications pursuant to article 15 in relation to crimes alleged to have been committed since 13 June 2014 in this situation.

Preliminary Jurisdictional Issues

111. On 1 January 2015, the Government of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the ICC over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for the State of Palestine on 1 April 2015.

Contextual Background Gaza

112. As a result of the Six-Day War in 1967, Israel acquired control over the territory of Gaza. In September 2005, Israel completed its unilateral withdrawal from Gaza, including dismantling its settlements and withdrawing its forces. Israel has maintained that following the 2005 disengagement, it is no longer an occupying power in Gaza. By contrast, it may be argued that Israel nonetheless remains an occupying power as a result of the scope and degree of control that Israel has retained over the territory of Gaza — a position that the Office has previously taken in the context of the preliminary examination of the situation referred by the Government of the Union of Comoros16

113. Following Hamas' electoral victory in 2006 and extension of control in 2007, the territory has been the theatre of periodic hostilities between Israel and Hamas as well as other Palestinian armed groups operating in Gaza.

114. Most recently, the region was affected by a new wave of hostilities, often referred to as the 2014 Gaza conflict. On 7 July 2014, Israel launched 'Operation Protective Edge', which lasted 51 days. The declared aim of the operation was to disable the military capabilities of Hamas and other groups operating in Gaza, neutralise their network of cross-border tunnels and halt their rocket and mortar attacks against Israel. The Operation consisted of three phases: after an initial phase focussed on air strikes, Israel launched a ground operation on 17 July 2014, followed by a third phase of the operation launched on 5 August characterised by alternating ceasefires and aerial strikes. The hostilities ended on 26 August 2014 with both sides agreeing to an unconditional ceasefire.

115. Since then, different national and international bodies have conducted, or are in the process of conducting, inquiries and/or investigations into incidents that occurred during the 2014 Gaza conflict, such as, for example, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict, the UN Headquarters Board of Inquiry into certain incidents that occurred in the Gaza Strip between 8 July 2014 and 26 August 2014, the Israel Defence Forces ("IDF") Military Advocate General (along with the General Staff Mechanism for Fact Finding Assessments), and the Palestinian Independent National Committee (established by a July 2015 presidential decree in order to investigate crimes that occurred during the conflict).

West Bank and East Jerusalem

116. As a result of the Six-Day War, Israel acquired control over the West Bank and East Jerusalem. Shortly thereafter, Israel adopted laws and orders effectively extending Israeli law, jurisdiction and administration over East Jerusalem. On 30 July 1980, the Knesset, the Israeli parliament, passed a 'Basic Law' by which it established the city of Jerusalem 'complete and united' as the capital of Israel. The UN Security Council and International Court of Justice, among others, have regarded the annexation of East Jerusalem as a violation of the jus cogens norm prohibiting the acquisition of territory by military force.

117. Pursuant to the Oslo Accords of 1993-1995, the Palestine Liberation Organization and the State of Israel formally recognised each other, committing to the peace talks and agreeing on a progressive hand over of certain Palestinian-populated areas in the West Bank to the Palestinian National Authority (or Palestinian Authority, PA). Under the 1995 Interim Agreement, the West Bank was divided into three administrative divisions (Area A — full civil and security control by the PA; Area B — Palestinian civil control and joint Israeli-Palestinian security control; Area C — full civil and security control by Israel).

118. The peace talks between the parties grounded to a halt in 1995 and were followed over the years by a number of negotiations including the Camp David Summit of 2000, the 2002/2003 Road Map for Peace, as well as intermittent peace talks and related initiatives since 2007. To date, no final peace agreement has been reached and a number of issues remain unresolved, including the determination of borders, security, water rights, control of the city of Jerusalem, Israeli settlements in the West Bank, refugees, and Palestinians' freedom of movement.

Alleged Crimes

119. The following summary of alleged crimes is without prejudice to any future determinations by the Office regarding the exercise of territorial or personal jurisdiction by the Court. It should not be taken as indicative of or implying any particular legal qualifications or factual determinations regarding the alleged conduct. Additionally, the summary below is without prejudice to the identification of any further alleged crimes which may be made by the Office in the course of its continued analysis.

Gaza conflict

120. The conflict in Gaza between 7 July and 26 August 2014 resulted in a high number of civilian casualties, significant damage to or destruction of civilian buildings and infrastructure, and massive displacement. According to multiple sources, over 2,000 Palestinians, including allegedly over 1,000 civilians, and over 70 Israelis, including six civilians, were reportedly killed, and over 11,000 Palestinians and up to 1,600 Israelis were reportedly injured as a result of the hostilities. Figures reported by various sources differ on the number of overall casualties, the proportion of civilian-to-combatant casualties, and the proportion of civilian casualties that were incidental to the targeting of military objectives.

121. It has been reported that the conflict also had a significant impact on children, in particular. For example, reportedly more than 500 children were killed, and more than 3,000 Palestinian children and around 270 Israeli children were wounded during the conflict. In addition, several instances of child recruitment by Palestinian armed groups have been reported.

122. All parties are alleged to have committed crimes during the 51-day conflict. Acts allegedly committed by members of Palestinian armed groups

123. Alleged attacks against civilians: During the 2014 conflict, Palestinian armed groups allegedly fired around 4,881 rockets and 1,753 mortar shells towards Israel, including civilian areas. The majority of these attacks were launched against areas in Israel near Gaza, but further areas, such as Tel Aviv and Dimona were also reportedly targeted. It is reported that some of the attacks resulted in civilian casualties and damage to civilian objects in Israel. In addition to the injuries and displacement caused by mortar and rocket attacks by Palestinian armed groups, Israeli civilians also reportedly suffered emotional harm and psychological trauma as a result of living under the constant threat and fear of attacks. A certain number of rockets fired by Palestinian armed groups also are alleged to have fallen short and landed within Gaza, causing civilian casualties and damage to civilian objects.

124. Alleged use of protected persons as shields: Palestinian armed groups allegedly launched attacks directly from or nearby areas and buildings where civilians were present at the time. For example, it is alleged that attacks were launched from, or in the immediate vicinity of, residential homes and areas, hospitals, schools (including UNRWA schools), hotels, and buildings dedicated to religion. Similarly, Palestinian armed groups are also alleged to have used such buildings for other military purposes, such as for storing weapons and ammunition, tunnel entrances, and as command and control centres. It has been alleged that Palestinian armed groups engaged in such conduct in order to shield their military operations and assets from attack.

125. Alleged ill-treatment of persons accused of being collaborators: It is alleged that members of the Al Qassam Brigades and the Hamas' Internal Security Forces seriously ill-treated at least 20 Palestinian civilians accused of collaborating with Israel, who were later executed (some publicly) on separate occasions between 5 and 23 August 2014.

Acts allegedly committed by members of the IDF

126. Alleged attacks against residential buildings and civilians: It is alleged that the IDF carried out numerous airstrikes on residential buildings, resulting in some cases in injuries and killings of residents and damage to, or destruction of, family homes and other residential buildings. Notable affected areas reportedly included, among others, the Shuja'iya neighbourhood, Khan Yunis, and Khuza'a. It is also alleged that during a ground operation in Khuza'a, in certain reported incidents, civilians came under fire while trying to leave the area, and others were subjected to serious ill-treatment while being detained by IDF forces. Additionally, between 1-4 August 2014, massive bombardment of the Rafah area by the IDF allegedly caused more than one hundred civilian casualties.

127. Alleged attacks against medical facilities and personnel: It is alleged that during the hostilities, medical facilities, ambulances, and medical personnel at times came under attack or fire from IDF forces, either reportedly as a result of being directly targeted or due to their proximity to military targets, in some cases resulting in significant damage as well as casualties to both personnel and patients.

128. Alleged attacks against UNRWA schools: It is reported that six UNRWA schools, serving as designated emergency shelters during the conflict, were hit by projectiles, allegedly fired by the IDF, resulting in damage to the premises as well as in some cases injuries and killings of residents and other persons present at the shelters.

129. Alleged attacks against other civilian objects and infrastructure: During the course of the conflict, various other civilian objects and infrastructure (such as water and sanitation installations, the Gaza power plant, agricultural fields, mosques, and educational institutions) also allegedly sustained significant damage or were destroyed, reportedly due to their proximity to targeted sites or as a result of direct attacks by the IDF.

West Bank and East Jerusalem

130. Alleged settlement activities: The Israeli government has allegedly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements on West Bank territory. This settlement activity is allegedly created and maintained through the implementation of a set of policies, laws, and physical measures. Such activities are alleged to include the planning and authorisation of settlement expansions or new construction at existing settlements, including the regularisation of constructions built without the required authorisation from Israeli authorities (so-called outposts); the confiscation and appropriation of land; demolitions of Palestinian property and eviction of residents; discriminatory use of basic infrastructure and resources, such as water, soil, grazing lands, and market; imposition of other forms of access and movement restrictions upon Palestinians; and a scheme of subsidies and incentives to encourage migration to the settlements and to boost their economic development.

131. According to Israeli official data, in 2015 a total of over 62,000 dunums (or 15,300 acres) of West Bank land were declared as "state land", namely land belonging to the State of Israel, reportedly the largest total since 2005. Additionally, according to data published by the NGO Peace Now, between January and August 2016, Israeli authorities reportedly advanced plans for a total of 2,623 new units in West-Bank and East Jerusalem, including 756 retroactive approvals of unauthorised constructions. The Israeli Central Bureau of Statistics recorded 591 new construction starts and 760 constructions completed in area C of the West Bank in 2015.

132. In the same year, the Israeli government reportedly destroyed 531 Palestinian-owned structures in the West Bank, including East Jerusalem, allegedly displacing 688 people, according to figures published by the UN Office for the Coordination of Humanitarian Affairs. An additional 889 Palestinians were reportedly displaced between 1 January and 31 July 2016 due to the demolition by Israeli authorities of 684 Palestinian-owned structures, including 110 in East Jerusalem. In parallel to demolitions, Israeli authorities reportedly advanced plans for the relocation of several Palestinian Bedouin or herder communities located in Area C of the West Bank, including in the Jordan Valley and in the area located immediately east of the Jerusalem municipal boundary, so-called E-1 area.

133. Alleged ill-treatment: Allegations concerning ill-treatment of Palestinians arrested, detained and prosecuted in the Israeli military court system have also been reported, including, for example, allegations of systematic and institutionalised ill-treatment of Palestinian children in relation to their arrest, interrogation, and detention for alleged security offences in the West Bank.

134. Escalation of violence: Since the beginning of October 2015, there has been an escalation of tensions and violence in Israel and Palestine, including alleged violent attacks by Palestinian assailants against Israelis and others, resulting in killings and serious injuries, as well as alleged unlawful killings and/or excessive use of force by Israeli forces against Palestinians. In reference to the upsurge of violence in the region, allegations have also been made concerning incitement to violence against Israelis by various Palestinian political leaders and groups.

OTP Activities

135. In the past year, the Office has considered relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.

136. The Office meanwhile also continued to gather and review available information from a range of reliable sources on alleged crimes committed by both parties to the 2014 Gaza conflict as well as certain alleged crimes committed in the West Bank and East Jerusalem since 13 June 2014. The OTP also closely monitored relevant developments and events in the region.

137. To date, the Office has reviewed over 320 reports as well as related documentation and supporting material. This includes publicly available information and information from individuals or groups, States, and non­governmental or intergovernmental organisations. The review process has included an independent and thorough evaluation of the reliability of sources and the credibility of information received on alleged crimes. In connection with this process, during the reporting period, the Office took a number of steps to gather further information on the methodology used by various sources and to verify the seriousness of information received, including through external verification of information such as by consulting multiple reliable sources for corroboration purposes.

138. Based on information collected from multiple reliable sources, the Office has produced a comprehensive database of over 3,000 reported incidents and crimes that allegedly occurred during the 2014 Gaza conflict. This database, updated as additional or new information becomes available, has enabled the Office to identify and compare the gravest incidents alleged, to conduct preliminary crime pattern analysis and to examine particular features of the conflict and of the alleged conduct of the different parties to it, such as for example, the most affected locations, timeframes and types of targets, the different modus operandi employed, as well as casualty figures, among others.

139. Considering the number of allegations received which also encompass a broad range of types of alleged conduct and incidents, the Office has sought to be selective in prioritising certain alleged crimes at this stage. The alleged crimes that have been the subject of analysis to date involve complicated factual and legal assessments, such as in relation to conduct of hostilities issues, thereby necessitating careful analysis in reference to the relevant law applicable and information available.

140. During the reporting period, the Office continued to engage with State authorities and intergovernmental and non-governmental organisations in order to address a range of matters relevant to the preliminary examination as well as specifically to seek additional information to further assess the seriousness of information in its possession and other relevant issues. In this respect, the Office held numerous meetings with a variety of NGOs, including a number of Palestinian NGOs, as well as international organisations.

141. The Office also met with senior officials and representatives of the Palestinian Government on several occasions, including in November 2015 and June and September 2016. During the reporting period, the Government of Palestine also began sending monthly reports to the Office with information on alleged on-going crimes as well as other developments relevant to the preliminary examination.

142. In March 2016, the Office conducted a mission to Amman, Jordan, where it held a round of working-level meetings with representatives of the Palestinian government and Palestinian NGOs on various issues related to the ongoing preliminary examination.

143. From 5 to 10 October 2016, the Office conducted a visit to Israel and Palestine. The visit was facilitated by the Israeli and Palestinian authorities, and conducted with the logistical support of the United Nations Special Coordinator for the Middle East Peace Process.17 The purpose of the visit was to undertake outreach and education activities with a view to raising awareness about the ICC and in particular, about the work of the Office, to address any misperceptions about the ICC, and to explain the preliminary examination process. During the visit, the Office travelled to Tel Aviv, Jerusalem, and Ramallah, where meetings were held with Israeli and Palestinian officials at the working levels. Additionally, the Office engaged with the law faculty at Hebrew University and participated in an academic event at Bethlehem University and gave several interviews to the Palestinian, Israeli and internationl press.

144. As publically reported earlier this year, staff members of certain organisations that have gathered information of relevance to the OTP preliminary examination, such as Al-Haq and Al-Mezan Center for Human Rights, have been subjected to threats and other apparent acts of intimidation and interference. The Office takes this situation very seriously and has consulted with the organisations and persons affected as well as liaised with the Dutch authorities, as the Host State to the Court, in order to ensure that appropriate steps and measures are taken to address the situation.

Conclusion and Next Steps

145. The Office is continuing to engage in a thorough factual and legal assessment of the information available, in order to establish whether there is a reasonable basis to proceed with an investigation. In this context, in accordance with its policy on preliminary examinations, the Office will assess information on potentially relevant national proceedings, as necessary and appropriate. Any alleged crimes occurring in the future in the context of the same situation could also be included in the Office's analysis.

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15 The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015.

16 See ICC-OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia Article 53(1) Report, 6 November 2014, paras. 25-29.

17 The Government of Israel provided facilitation without prejudice to its objections to Palestine's eligibility to accede to the Rome Statute and to the Court's exercise of jurisdiction over the situation in Palestine.