ICC Prosecutor’s Annual Report on Preliminary Examination Activities (2018) – Situation in Palestine

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Full Report

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PALESTINE

Procedural History

251. The situation in Palestine has been under preliminary examination since 16 January 2015.³⁷ The Office has received a total of 125 communications pursuant to article 15 in relation to the situation in Palestine.
252. On 22 May 2018, the Office received a referral from the Government of the State of Palestine regarding the situation in Palestine since 13 June 2014 with no end date. In reference to articles 13(a) and 14 of the Statute, the State of Palestine requested 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.”³⁸
253. On 24 May 2018, the Presidency of the Court assigned the Situation in Palestine to Pre-Trial Chamber I (“PTC I”).³⁹
254. On 13 July 2018, PTC I issued a decision concerning the establishment, by the Registry, of “a system of public information and outreach activities among the affected communities and particularly the victims of the situation in Palestine.”⁴⁰

Preliminary Jurisdictional Issues

255. On 1 January 2015, the Government of the State of Palestine lodged a declaration under article 12(3) of the 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 the State of Palestine acceded to the Statute by depositing its instrument of accession with the UN Secretary-General. The Statute entered into force for the State of Palestine on 1 April 2015.

Contextual Background

West Bank and East Jerusalem

256. In June 1967, an international armed conflict (the Six-Day War) broke out between Israel and neighbouring states, as a result of which Israel acquired control over a number of territories including the West Bank and East Jerusalem. Immediately after the end of the Six-Day War, Israel established a military administration in the West Bank, and adopted laws and orders effectively extending Israeli law, jurisdiction and administration over East Jerusalem. In November 1981, a separate Civilian Administration was established to “run all regional civil matters” in the West Bank. On 30 July 1980, the Knesset passed a ‘Basic Law’ by which it established the city of Jerusalem “complete and united” as the capital of Israel.
257. Since 1967, the information available suggests that the Israeli civilian presence in the West Bank and East Jerusalem has reportedly grown to nearly 600,000 settlers, living in 137 settlements officially recognised by the Israeli authorities, including 12 large Israeli ‘neighbourhoods’ in the eastern part of Jerusalem, and some 100 unauthorised settlements or ‘outposts’.
258. Pursuant to the Oslo Accords of 1993-1995, the Palestine Liberation Organization and the State of Israel formally recognised each other, and agreed on a progressive handover 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 areas (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).
259. The peace talks between the parties ground to a halt in 1995 and were followed over the years by a number of rounds 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.

Gaza

260. On 7 July 2014, Israel launched ‘Operation Protective Edge’, which lasted 51 days. According to the Israeli authorities, the objective 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; a third phase from 5 August onwards was characterised by alternating ceasefires and aerial strikes. Several Palestinian armed groups (“PAGs”)_participated in the hostilities, most notably the respective armed wings of Hamas and the Palestinian Islamic Jihad as well as the al-Nasser Salah al-deen Brigades. The hostilities ended on 26 August 2014 when both sides agreed to an unconditional ceasefire.
261. Since the end of the 2014 hostilities, different national and international bodies have conducted 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 Defense Forces (“IDF”) Military Advocate General, and the Palestinian Independent National Committee.
262. On 30 March 2018, the 42^nd anniversary of the Palestinian Land Day, tens of thousands of Palestinians participated in a protest, dubbed the “Great March of Return”, near the border fence between the Gaza Strip and Israel. The demonstrations were reportedly organized to draw attention to the Palestinians’ demands for an end of the Israeli occupation and its blockade on the Gaza Strip and the rights of refugees and their descendants to reclaim their ancestral lands in Israel. Although the protests were initially planned to last only six weeks, until 15 May (“Nakba Day”), they have ultimately continued to date.
263. In the context of these events, IDF soldiers have used non-lethal and lethal means against persons participating in the demonstrations, reportedly resulting in the killing of over 170 individuals, including over 30 children, and the wounding of more than 19,000 others. Reportedly, journalists and medical workers have been among those killed and injured.
264. While the majority of demonstrators reportedly engaged in non-violent protest and remained several hundred meters away from the border, some entered the immediate area of the border fence and engaged in violent acts, such as throwing rocks, Molotov cocktails and other explosive devices, deploying incendiary kites and balloons into Israel, and attempting to infiltrate into Israeli territory.
265. Israel has alleged that Hamas and other armed groups in Gaza have sought to instigate a violent confrontation and have exploited the protests as a cover for acts of terrorism against the State of Israel, using the presence of civilians to shield their military activities. However, the IDF’s rules of engagement and the alleged use of excessive and deadly force by Israeli forces in the context of the demonstrations has been heavily criticized by, among others, UN officials and bodies and a number of international and regional NGOs.
266. On 18 May 2018, the UN Human Rights Council adopted Resolution S-28/1 establishing an independent international commission of inquiry to investigate alleged violations and abuses of international humanitarian law and international human rights law committed in the context of the demonstrations that began on 30 May 2018. The IDF has also announced that it is conducting its own examination and investigations of certain alleged incidents involving the shooting of demonstrators.
267. From 11 to 13 November 2018, there was also a marked increase in hostilities between Israel and Palestinian armed groups operating in Gaza. Reportedly, on 12-13 November, Palestinian armed groups fired over 400 rockets and mortar shells from Gaza towards Israel, killing at least one civilian and injuring dozens of others and causing damage to property. The IDF also launched strikes against over one hundred targets throughout Gaza — such attacks reportedly primarily targeted Palestinian armed group members and their infrastructure, though they also caused civilian casualties and damage in certain instances. On 13 November, a ceasefire was reached between the parties.

Subject-Matter Jurisdiction

268. The preliminary examination of the situation in Palestine has raised specific challenges relating to both factual and legal determinations. In the latter respect, the Office, in particular, has to consider the possible challenges to the Court’s jurisdiction, and/or to the scope of any such jurisdiction. The following summary 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.

West Bank and East Jerusalem

269. The Office has focused its analysis on alleged war crimes committed in the West Bank, including East Jerusalem, since 13 June 2014. Namely, the Israeli authorities have allegedly been involved in the settlement of civilians onto the territory of the West Bank, including East Jerusalem, and the forced removal of Palestinians from their homes in the West Bank and East Jerusalem. Settlement-related activities have reportedly included the confiscation and appropriation of land; the planning and authorisation of settlement expansions; constructions of residential units and related infrastructures in the settlements; the regularisation of constructions built without the required authorisation from Israeli authorities (so-called outposts); and public subsidies, incentives and funding specifically allocated to settlers and settlements’ local authorities to encourage migration to the settlements and boost their economic development.
270. Israeli authorities are also alleged to have been involved in the demolition of Palestinian property and eviction of Palestinian residents from homes in the West Bank and East Jerusalem. Moreover, Israeli authorities have reportedly continued to advance plans to relocate Bedouin and other herder communities present in and around the so-called El area, including through the seizure and demolition of residential properties and related infrastructure.
271. The Office has also received information regarding other crimes allegedly committed by officials of the Israeli authorities in the West Bank, including East Jerusalem, which may fall under the purview of article 7 of the Statute on crimes against humanity. Specifically, these allegations relate to the crime of persecution, transfer and deportation of civilians, as well as the crime of apartheid.
272. In addition, the Office has also received allegations that Palestinian security and intelligence services in the West Bank have committed the crime against humanity of torture against civilians held in detention centres under their control. These and any other alleged crimes that may occur in the future, require further assessment.

Gaza 2014 hostilities

273. Based on the information available, the hostilities that took place in Gaza between 7 July and 26 August 2014 may be classified as either an international or non-international armed conflict. Accordingly, the Office has taken into account the possible alternative available classifications of the 2014 armed conflict and the related possible alternative legal qualifications of the relevant alleged acts of the various perpetrators. Such an approach, however, has implications for any conclusions to be reached on the commission of particular alleged crimes of relevance, given that certain war crimes that are criminalised under the Statute provisions relevant to international armed conflicts, are by contrast not criminalised under the Statute in the case of a non-international armed conflict. Consequently, the Office’s conclusions on the commission of alleged crimes in some instances depend on the qualification of the conflict as either international or non-international in character.
274. During the reporting period, the Office continued to analyse allegations of crimes committed by members of the IDF and members of PAGs, respectively, during the hostilities in Gaza in 2014. In conducting its analysis, the Office focused on a sample of illustrative incidents, out of the thousands previously documented by the Office and compiled in comprehensive databases. In this respect, the Office sought to: (i) select incidents which appear to be the most grave in terms of the alleged harm to civilians and damage to civilian objects and/or are representative of the main types of alleged conduct, and (ii) prioritise incidents for which there is a range of sources and sufficient information available to enable an objective and thorough analysis.

Other alleged conduct since 30 March 2018

275. The Office has gathered information regarding other crimes allegedly committed by both sides in relation to the violence that has occurred in the context of the protests held along the Israel-Gaza border since 30 March 2018. These and any other alleged crimes that may occur require further assessment.

Admissibility Assessment

276. As set out in article 17(1), admissibility requires an assessment of complementarity and gravity.

West Bank and East Jerusalem

277. The information available does not seem to indicate the existence of any relevant national investigations or prosecutions being or having been conducted against the persons or groups of persons which are likely to be the focus of an investigation into the crimes allegedly committed in the West Bank, including East Jerusalem. This stems from the fact that on the one hand, the Palestinian authorities are unable to exercise jurisdiction over the alleged Israeli perpetrators, while, on the other hand, the Israeli government has consistently maintained that settlements-related activities are not unlawful and the High Court of Justice (“HCJ”) has held that the issue of the Government’s settlement policy was non-justiciable. The Office has nonetheless considered a number of decisions rendered by the HCJ pertaining to the legality of certain governmental actions connected to settlement activities.
278. In addition, the Office has considered whether, based on the information available, the crimes allegedly committed in the West Bank, including East Jerusalem, since 13 June 2014, are sufficiently grave within the meaning and requirements of the Statue to justify the opening of an investigation, in particular considering their scale, nature, manner of commission, and their impact on victims and affected communities.

Gaza 2014 hostilities

279. With respect to the alleged crimes committed during the 2014 hostilities in Gaza, the Office has focussed on a sample of incidents that appear to be the gravest, most representative and best documented. With respect to crimes allegedly committed by members of the IDF, the information available indicates that all of the relevant incidents are or have been the subject of some form of investigative activities at the national level within the IDF military justice system. With respect to crimes allegedly committed by Palestinian armed groups, the information available at this stage does not suggest any conflict of jurisdiction between the Court and any relevant States with jurisdiction
280. For the purpose of the gravity assessment, the Office has to consider whether the groups of persons that are likely to be the object of an investigation include those who appear to be most responsible for the most serious crimes, including persons with levels of responsibility in directing, ordering, facilitating or otherwise contributing to the commission of the alleged crimes.
281. Furthermore, taking into account both quantitative and qualitative factors, the crimes allegedly committed must be sufficiently grave considering their scale, nature, manner of commission, and their impact on victims and affected communities. Additionally, while the considerations outlined in article 8(1) are only meant to provide guidance that the Court should focus on cases meeting
     these requirements, the Office is also considering whether the alleged war crimes
     were committed on a large scale or as part of a plan or policy within the meaning of article 8(1) of the Statute.

OTP Activities

282. During the reporting period, the Office has reached an advanced stage of its assessment of statutory criteria for a determination whether there is a reasonable basis to proceed with an investigation into the situation in Palestine pursuant to article 53(1) of the Statute. In the course of this process, the Office engaged with a number of stakeholders – including officials of Palestine and Israel, intergovernmental and non-governmental organisations, and members of civil society – for the purpose of gathering additional information relevant to the Office’s assessment.
283. On 8 April 2018, the Prosecutor issued a statement expressing grave concern at the violence and deteriorating situation in the Gaza Strip related to the events surrounding the Great March of Return demonstrations that began on 30 March 2018 and called for the violence to stop. In addition, on 17 October 2018, the Prosecutor issued a statement expressing concern in relation to the planned eviction of the Bedouin community of Khan al-Ahmar in the West Bank as well as the continued violence, perpetrated by actors on both sides, along the Gaza border with Israel.

Conclusion

284. During 2018, the Office has advanced and significantly progressed its analysis on all of the factors listed in article 53(1)(a)-(c), in line with its holistic approach. Given the detailed focus that the Office has given to this situation since 2015, the Prosecutor intends to complete the preliminary examination as early as possible.

Endnotes

³⁷ The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015.

³⁸ Referral Pursuant to Article 13(a) and 14 of the Rome Statute, 15 May 2018, para.9. See also Statement by ICC Prosecutor, Mrs Fatou Bensouda, on the referral submitted by Palestine, 22 May 2018.

³⁹ Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, ICC-01/18-1, 24 May 2018.

40 Decision on Information and Outreach for the Victims of the Situation, ICC-01/18-2, 13 July 2018.

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