Palestine before the ICC

In an unprecedented step, in March 2021, the Office of the Prosecutor of the International Criminal Court issued a statement to open an investigation into the situation in Palestine, and that this investigation will cover crimes that fall within the jurisdiction of the court, which will be committed since 2014. This step follows another decision issued by the Pre-Trial Chamber of the Court, in February 2021, stating that the Court has jurisdiction over the territory of the State of Palestine occupied since 1967, which includes the West Bank, the Gaza Strip, and East Jerusalem, as it is a party to the Rome Statute.

This decision represents a transition from the preliminary investigation stage to the investigation stage of a number of serious crimes committed since 2014, including settlement practices and especially the settlement of Israeli civilians, came after a statement from the Office of Attorney General Fatou Bensouda. The judges of Pre-Trial Chamber 1 are called upon to issue a decision to clarify the territorial scope of the court`s jurisdiction over the situation in Palestine, which completed a five-year-long  preliminary study in December 2019. This was confirmed “by majority” of the Pre-Trial Chamber in February 2021, that the Court has jurisdiction over the situation in Palestine, and that the territorial scope includes Gaza, the West Bank and East Jerusalem. Based on its evaluation of observations made by several parties, including states, international organizations and other stakeholders, the Court agreed that Palestine is a state party to the Rome Statute, which obliges the office to open an investigation in accordance with the standards of the Rome Statute.

Although many international and Palestinian human rights organizations have submitted files documenting the grave crimes of the occupation in the occupied Palestinian territories, including potential war crimes, the investigation of these crimes is a complex and long-term process, especially with the obstacles set by the occupation government. Israel and the United States, politically and technically, with impunity. There may also be another challenge regarding the consideration of crimes allegedly committed in Gaza by Palestinian parties, as the jurisdiction of the Court comes after the jurisdiction of the local courts, in accordance with Article 17.1 of the Rome Statute. Therefore, the Court is not authorized to consider crimes if relevant investigations are underway within the jurisdiction of the judiciary within the state. And claiming that domestic investigations are ongoing is what the Israeli authorities are doing to obstruct the investigations of the International Criminal Court.

With regard to the statements of amici curiae on the case of Palestine, the Prosecutor of the Court requested the Pre-Trial Chamber to allow the evaluation of the statements of the friends of the Court, and to emphasize the need to adopt a participatory and open approach to the determination of the case presented. The Pre-Trial Chamber received 43 statements. In addition to the statements of the State of Palestine, seven statements were submitted from countries such as Germany, Australia, Brazil, Austria, the Czech Republic, Hungary and Uganda, and the seven countries’ affidavits opposed the investigation. In addition, two statements by two state organizations, the League of Arab States and the Organization of Islamic Cooperation supported the investigation. The rest of the testimonies were provided by other stakeholders including academics, bar associations, and civil society organizations, in addition to a statement submitted by the Victims Representation Office in the court.

In addition to the testimonies of the amici curiae, statements were also submitted on behalf of Palestinian victims, as individuals from the West Bank, East Jerusalem, and the Gaza Strip, as well as statements by Al Mezan Center for Human Rights, Al Haq: Law in the Service of Man and Addameer Prisoner Support and Human Rights Association, submitted by international and Palestinian lawyers.

As for the dimensions of the territorial and temporal jurisdiction, the Pre-Trial Chamber affirmed the Court’s jurisdiction for all crimes committed since June 2014, and in all the occupied Palestinian territory, considering that Palestine is a “state party to the Rome Statute,” after recognizing it as a “non-member observer state of the United Nations” and, thus, the International Criminal Court’s recognized the people`s right to self-determination to include all the occupied Palestinian territory and this right constitutes a fundamental norm of international law. This is a re-consideration of international law in the case of Palestine, which is still under continuous occupation for 70 years with impunity, and gives an opportunity to countries that have cooperative relations with Israel to reconsider them, due to exposing the systematic crimes of the Israeli occupation.

The Court’s decision on the admissibility of its investigation of crimes in Palestine is severely limited in scope, and it is unlikely that Israel will allow the Court to investigate on the ground or access Israeli defendants. Nonetheless, the Court has already delivered a symbolic victory to those who have long sought justice for crimes committed by Israel against the Palestinian people as a whole.

The Special Rapporteur on the situation in the Occupied Palestinian Territories, Professor Michael Lynk, welcomed the ICC decision and considered it a major step toward ending the policy of impunity and ensuring justice. The Special Rapporteur stated that “The leading political organs of the United Nations have repeatedly failed to enforce their own significant body of resolutions on the Israeli occupation” and “This ruling will offers profound hope to those who believe that the consequences, not condonation, must be the answer to the commission of grave crimes.”

See also the discussion hosted by FXB Harvard on “The ICC`s Latest Ruling: Implications for Israel/Palestine Justice, Human Rights, and Health,” with Rania Muhareb, Richard Falk and Ioannis Kalpouzos.

Photo: The ICC building in The Hague, Netherlands. Source: UN.