ICC Prosecutor’s Annual Report on Preliminary Examination Activities (2020) – Situation in Palestine – Report (Excerpts)

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Completed Preliminary Examinations

Palestine

Procedural History

215. The situation in Palestine has been under preliminary examination since 16 January 2015.^[1]

216. 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. With 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.”^[2]

217.On 24 May 2018, the Presidency of the Court assigned the Situation in Palestine to Pre-Trial Chamber I (“PTC I”).^[3]

218. 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.”^[4]

Preliminary Jurisdictional Issues

219. On 1 January 2015, 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.

OTP Activities

220. On 20 December 2019, the Prosecutor announced that following a thorough, independent and objective assessment of all reliable information available to her Office, the preliminary examination into the Situation in Palestine had concluded with a determination that all the statutory criteria under the Rome Statute for the opening of an investigation had been met.^[5] The Prosecutor announced that she was satisfied that: (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip; (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.^[6]

221. In particular, the Office found there was a reasonable basis to believe that members of the Israel Defense Forces (“IDF”) committed the war crimes of: intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focused on (article 8(2)(b)(iv)); wilful killing and wilfully causing serious injury to body or health (articles 8(2)(a)(i) and 8(2)(a)(iii), or article 8(2)(c)(i)); and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions (article 8(2)(b)(xxiv), or 8(2)(e)(ii)). In addition, Office found there was a reasonable basis to believe that members of Hamas and Palestinian armed groups (“PAGs”) committed the war crimes of: intentionally directing attacks against civilians and civilian objects (articles 8(2)(b)(i)-(ii), or 8(2)(e)(i)); using protected persons as shields (article 8(2)(b)(xxiii)); wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv)) and wilful killing (articles 8(2)(a)(i), or 8(2)(c)(i)); and torture or inhuman treatment (article 8(2)(a)(ii), or 8(2)(c)(i)) and/or outrages upon personal dignity (articles 8(2)(b)(xxi), or 8(2)(c)(ii)). ^[7]

222. With respect to the admissibility of potential cases concerning crimes allegedly committed by members of the IDF, the Office noted that due to limited accessible information in relation to proceedings that have been undertaken and the existence of pending proceedings in relation to other allegations, the Office’s admissibility assessment in terms of the scope and genuineness of relevant domestic proceedings remained ongoing and would need to be kept under review in the context of an investigation. However, the Office concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs would be admissible pursuant to article 17(1)(a)-(d) of the Statute. ^[8]

223. In addition, the Office found there was a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014. The Office further concluded that the potential case(s) that would likely arise from an investigation of these alleged crimes would be admissible pursuant to article 17(1)(a)-(d) of the Statute. ^[9]

224. Finally, the Office observed 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. ^[10]

225. As there had been a referral from the State of Palestine, the Prosecutor is not required to seek the Pre-Trial Chamber’s authorisation before proceeding to open an investigation, and she announced that she would not seek to do so.^[11] However, given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, on the same day the Prosecutor requested an expeditious ruling under article 19(3) of the Statute to resolve this specific issue. This request, which was refiled on 21 January 2020, ^[12] following the PTC decision on procedural issues, ^[13] sought confirmation that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza.^[14] The Prosecutor asserted that, following the deposit of its instrument of accession with the United Nations Secretary-General pursuant to article 125(3) on 2 January 2015, Palestine became a State Party to the Rome Statute under article 12(1). The Court therefore does not need to conduct a different assessment regarding Palestine’s Statehood to exercise its jurisdiction in the territory of Palestine in accordance to article 12(2)(a). Alternatively, the Prosecutor argued that if the Chamber deems it necessary to assess whether Palestine satisfies the criteria of statehood under international law, it could conclude that Palestine is a State under the relevant principles and rules of international law for the sole purposes of the Rome Statute.⁷³

226. On 28 January 2020, PTC I issued an order setting out the procedure and schedule for the submission of observations on the Prosecutor’s request, inviting the State of Palestine, the State of Israel and victims in the Situation in the State of Palestine to submit written observations on the Prosecutor’s request. It further invited other States, organisations and/or persons to submit applications for leave to file written observations. ^[15] Subsequent to this order, PTC I received a large number of submissions from approved participants.

227. The Prosecution responded to these observations on 30 April 2020, noting that it had carefully considered the observations of the participants and remained of the view that the Court has jurisdiction over the Occupied Palestinian Territory.^[16]

228. On 26 May 2020, PTC I requested that Palestine provide additional information regarding a statement issued by President Abbas on 19 May 2020. It ordered the Prosecution to respond and invited Israel to do so.^[17] On 5 June 2020, Palestine provided its observations,^[18] and on 8 June 2020, the Prosecution responded.^[19] The Prosecution did not consider that the statement had a bearing on the status of Palestine as a State Party and on the exercise of the Court’s jurisdiction in the situation in Palestine, and renewed its request for an expeditious ruling.^[20]

Conclusion and Next Steps

229. The Office will continue to assess any new allegations concerning alleged Rome Statute crimes in the Situation in Palestine, as well as any information relevant to complementarity and gravity, pending a decision by the PTC on its request.

[1] ICC-OTP, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015. 

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

[3] Presidency, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, ICC–01/181, 24 May 2018.

[4] PTC I, Decision on Information and Outreach for the Victims of the Situation, ICC–01/18–2, 13 July 2018, para. 14.

[5] ICC-OTP, Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction, 20 December 2019.

[6] Ibid.  

[7] ICC-OTP, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC–01/18–12, 22 January 2020, para. 94.

[8] Ibid.

[9] Ibid., para. 95.

[10] Ibid., para. 96.

[11] Ibid.

[12] ICC-OTP, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC–01/18–12, 22 January 2020.

[13] PTC I, Decision on the Prosecutor’s Application for an extension of the page limit, ICC–01/18, 21 January 2020.

[14] ICC-OTP, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC–01/18–12, 22 January 2020, paras. 2, 18. ⁷³ Ibid., para. 218.

[15] PTC I, Order setting the procedure and the schedule for the submission of observations, ICC–01/18–14, 28 January 2020.

[16] ICC-OTP, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, 30 April 2020, para. 4.

[17] PTC I, Order requesting additional information, ICC–01/18–134, 26 May 2020.

[18] State of Palestine, The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, ICC–01/18–135, 4 June 2020.

[19] ICC-OTP, Prosecution Response to “The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information”, ICC–01/18–136, 8 June 2020.

[20] Ibid., para. 5.

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