At the start of this month, the Office of the Prosecutor (“Prosecutor’s Office”) of the International Criminal Court (“the Court”) issued its annual report on Preliminary Examination Activities. The Court undertakes preliminary examinations in order to determine whether a situation complies with the legal criteria established in the Rome Statute of the International Criminal Court (“Rome Statute”) and thereby warrants further investigation by the Prosecutor’s Office. The report provides an overview of the examinations currently underway or recently concluded, and includes a review of the situation in Palestine.
The Prosecutor’s Office preliminary examination into Palestine is presently at Phase 2 of its three-phase process. Phase 2 “represents the formal commencement of a preliminary examination [and] … focuses on whether the preconditions to the exercise of jurisdiction under Article 12 [of the Rome Statute] are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court.” Specifically, Phase 2 requires a thorough factual and legal assessment of alleged crimes committed in Palestine in order to identify potential cases falling within the jurisdiction of the Court. It notes that the Prosecutor’s Office has to date received a total of 98 communications in relation to the situation in Palestine since 13 June 104.
The report provides a broad summary of the alleged crimes in the West Bank, East Jerusalem and Gaza, but notes that such references “should not to be taken as indicative of, or implying any particular legal qualifications or factual determinations with regard to the conduct in question.” This phase of the preliminary examination process does not consider questions of admissibility; that is, whether the alleged crimes would satisfy the gravity and complementarity threshold.
Alleged crimes in the West Bank and East Jerusalem
In relation to the West Bank and East Jerusalem, the report focuses primarily on settlement related activities. It notes that there have been repeated allegations of the forced removal of Palestinians from their homes and reports of the confiscation and appropriation of land. It reports that Israeli authorities have allegedly been involved with the planning and authorisation of settlement expansions (plus one entirely new settlement) and the construction of residential units and related infrastructures in settlements. It notes the reported official regularisation of constructions built without the required prior authorisation from Israeli authorities (so-called outposts), and finally it notes public subsidies, incentives and funding that has reportedly been specifically allocated to settlers and settlement local authorities in a bid to encourage migration to the settlements and promote economic development.
The report cites UN as well as official Israeli data which appear to corroborate the allegations that the Israeli authorities have, in recent years, endorsed and pursued plans for the construction of thousands of residential units in the West Bank and East Jerusalem. Figures from the UN Office of the High Commissioner for Human Rights (“OHCHR”) show that advanced settlement plans were made for 2,264 housing units in Area C of the West Bank, while 710 units reached a final approval stage, and that plans for 6,157 units in East Jerusalem were advanced between 2014 and 2016. According to official Israeli data, in 2016 construction work began on 2,884 new dwellings in settlements and 4,196 remained under active construction (the report notes that “these figures do not include construction in East Jerusalem which Israel considers an integral part of its capital”). The report goes on to note that in March 2017, pursuant to a ruling in December 2014 by the Israeli High Court of Justice, Israel’s security cabinet reportedly approved the construction of an entirely new settlement, for the first time in decades, in order to guarantee the relocation of residents from the Amona outpost.
The report additionally cites figures in relation to reports of the demolition of Palestinian property and the eviction of Palestinian residents from homes in the West Bank and East Jerusalem. Demolitions and evictions between August 2016 and 30 September 2017 have reportedly led to the alleged displacement of 1,029 individuals, including 493 women and 529 children. The report further states that, during the reporting period “Israeli authorities have reportedly continued to advance plans to relocate Bedouin and other herder communities present in and around the so-called E1 area, including through the seizure and demolition of residential properties and related infrastructure”.
The Prosecutor’s Office has been clear that their reference to these allegations is not indicative that any factual determinations have been made at this stage. That being said, these allegations are extremely serious. If they were to be made out, an individual allegedly responsible could face being charged with a War Crime under Article 8(2)(b)(viii) of the Rome Statute, which states that: “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” constitutes a war crime.
Alleged crimes in Gaza
The report notes that the conflict in Gaza between 7 July and 26 August 2014 resulted in “a high number of casualties, significant damage to or destruction of civilian buildings and infrastructure, and massive displacement”. It reports that, according to multiple sources, over 2,000 Palestinians, including over 1,000 civilians, and over 70 Israelis, including 6 civilians, were reportedly killed, and over 11,000 Palestinians and up to 1,600 Israelis were reportedly injured as a result of the hostilities. The report also highlights that the conflict had a significant impact on children, stating that “reportedly, more than 500 Palestinian children and one Israeli child were killed, and more than 3,000 Palestinian children and around 270 Israeli children were wounded during the conflict”.
All parties involved in the 51-day conflict are suspected of having committed crimes. The report notes that those alleged against Israel include direct attacks on civilians and civilian objects, such as, attacks on or affecting residential areas and family homes; medical facilities and personnel; and UN Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”) schools serving as designated emergency shelters. [LPHR’s comprehensive complaints to the UN Commission of Inquiry into the 2014 Gaza Conflict on the military targeting of family homes (authored with the Gaza-based Al Mezan Centre for Human Rights) and the military targeting of medical facilities and personnel (authored with Al Mezan Centre for Human Rights and Medical Aid for Palestinians) can be read on our website.]
The issue of subject-matter jurisdiction concerns the type of matters which the International Criminal Court can consider. The matters alleged must satisfy the Rome Statute’s definitions of war crimes, crimes against humanity, or genocide, and if they do not, they are not within the jurisdiction of the Court.
On this issue, the Prosecutor’s Office notes that preliminary examinations of the situation in Palestine have raised very specific challenges with regards to the necessary factual and legal determinations. In particular, determining the relevant legal regime applicable to the territory in question has presented difficulties in the jurisdictional assessment. Whilst Israel considers the West Bank to be “disputed territory” and has, as such, rejected the formal legal applicability of the Geneva Conventions (declaring instead that it would respect it humanitarian provisions), both intergovernmental and international judicial bodies have periodically affirmed that the West Bank, including East Jerusalem, has been occupied territory since 1967. Resolution 2334 of the UN Security Council passed on 23 December 2016, in particular, reaffirmed the occupied status of the West Bank, and explicitly condemned the “construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions”.
The report also highlights that diverging opinions on the legal characterisation of the Gaza conflict have also presented unprecedented difficulties in light of the sui generis nature of the conflict. It notes that whilst there is a general consensus that the 2014 Gaza conflict amounts to an armed conflict, the question of whether it is an international or non-international armed conflict remains open to considerable debate. The appropriate legal classification of the conflict is critical for the purposes of the analysis of the Prosecutor’s Office. Whether some of the alleged crimes fall under the jurisdiction of the Court will turn on the international/non-international distinction, since certain war crimes provisions under the Rome Statute appear to be applicable only in the context of an international armed conflict.
The report further notes that the analysis of actual alleged crimes committed in the course of the 2014 Gaza conflict raises additional unprecedented issues specifically with regard to the interpretation and application of various conduct of hostilities offences under Article 8 of the Rome Statute, which defines a wide range of distinct war crimes. The report notes that “[M]any of such issues have yet to be addressed by the Court and, in some instances, involve international humanitarian law concepts which may lack consensus among States, experts and academics.”
The report notes that the Prosecutor’s Office continues to consider relevant submissions and closely follow developments in the region. It states that it is making progress in its analysis of alleged crimes committed since 13 June 2014, drawing on a large body of resources for its factual and legal analysis. With regard to the Gaza conflict, the report states that the Prosecutor’s Office has chosen to focus on incidents which appear to be the most grave in terms of alleged harm to civilians and civilian objects and/or are representative of the main types of alleged conduct. It further states that analysis in regard to the situation in the West Bank and East Jerusalem will focus on settlement-related activities, in particular as they relate to alleged movement of persons into and from the occupied territories in question.
The report does not offer a definitive conclusion as to how the Prosecutor’s Office will proceed but states that, having made significant progress, the assessment will continue with a view to forming a conclusion on the jurisdictional issues within a reasonable timeframe.
Alamara Bettum, Angelina Nicolaou