By: Rakkshet Singhaal
Edited By: Tess Ballis and Hannah Cheves
International law is the foundation upon which the rules-based international order is built. It is a joint commitment by all states to perform their operations in compliance with agreed-upon laws that have evolved over time. The absolute commitment to its tenets by all United Nations member states is crucial in attempts to resolve any intractable conflict, including that between Israel and the Palestinians. On February 5, 2021, International Criminal Court (ICC) ruled that it has jurisdiction over the suspected war crimes and international law violations committed in Palestinian territory since 2014.[1] ICC's decision to open an inquiry into the situation in Palestine is significant as it unbolts the door for justice in Palestine. Justice being the first step toward achieving peace, as the latter is meaningless without the former. This paper analyzes how the ICC has tackled the central issue of whether it has jurisdiction over Palestinian territory since its conception and examines the significance and challenges of the ruling given in 2021, especially its role in achieving peace in Palestine.
CENTRAL ISSUE
The Israeli-Palestinian conflict is one of the world’s most contentious conflicts. At its core, it is a conflict between two self-determination states claiming the same territory: the Jewish Zionist initiative and the Palestinian nationalist project. Attempts to resolve the conflict by the ICC have been made several times, but none have been fruitful. Every time the case is raised, the ICC has found itself without jurisdiction over the crimes committed in Palestine.[2]
It was first in 2009, after the Palestinian–Israeli war in Gaza, that the ICC got a declaration from the Palestinian Justice Minister, accepting the jurisdiction of the ICC under Article 12(3) of the Rome Statute of the International Criminal Court and a request to start an investigation into the humanitarian and human rights crimes committed during the war by Israel.[3] Article 12(3) allows non-signatory states to recognize the Court's jurisdiction over international crimes on an ad hoc basis. However, Article 12(3) declaration is not the same as referring to a situation; it merely recognizes jurisdiction in the absence of complete ratification. In the absence of a State Party or Security Council referral, it is a mandatory precondition for the Office of the Prosecutor to exercise its proprio motu powers that allow the ICC Prosecutor to launch an investigation, as laid down in Article 15(1).[4]
After acknowledging the declaration of the Palestinian declaration, the ICC Prosecutor launched a preliminary examination to determine if there is a legitimate ground to proceed with an investigation.[5] As stated in Article 53 of the Statute, the ICC conducts a preliminary investigation into the following matters: (1) whether the Court has jurisdiction; (2) whether the situation is admissible under the principle of complementarity (the ICC can only exercise jurisdiction when national legal structures refuse to do so, including when they appear to act but are unwilling or unable to carry out genuine proceedings); and (3) whether there are substantial reasons to believe that an investigation would serve the interests of justice.[6] The ICC Prosecutor usually conducts these investigations in the above-mentioned order because it would consider jurisdiction first even though a later consideration, such as admissibility, provides fair reasons not to proceed. This approach has the potential to lengthen the preliminary review process and increase the anxiety of states under investigation.
During the preliminary examination's early stages, the Goldstone Report was issued by the United Nations Fact-Finding Mission on the Gaza Conflict. The Mission found that both the Israeli and Palestinian military committed war crimes, as defined by Article 8 of Rome Statute during the conflict, including offenses that fall within the ICC purview. The Mission concludes that the Israeli armed forces' actions entail gross violations of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (referred to as the Geneva Convention IV) in terms of deliberate killings and infliction of severe pain on protected individuals, and as such give rise to individual criminal liability. It also determined that the direct targeting and unlawful killing of Palestinian civilians violate the right to life. The Israeli armed forces used excessive violence, causing significant harm and devastation to civilian property and infrastructure, as well as misery to civilian populations. Based on the findings, the Mission made two recommendations: the Human Rights Council should forward the report to the ICC Prosecutor, and the Security Council should refer the case to the ICC if the examination that is being conducted by the ICC finds that the domestic authorities are not performing credible inquiries into the crimes committed. Furthermore, the Mission also suggested that the ICC Prosecutor should expedite the examination as much as possible.[7]
In April 2012, after much deliberation, the then-prosecutor, Luis Moreno Ocampo, stated that he would not continue an inquiry because he reckoned that the Court's jurisdiction only pertained to states included by the Statute. He believed that it was not up to the ICC to determine whether Palestine is a state or not but, “[i]t is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State to accede to the Rome Statute and thereby enable the exercise of jurisdiction by the Court under Article 12(1).”[8]
Instead of looking at it as a setback, this decision provided Palestine with an opportunity to move beyond the parameters of statehood set by the Montevideo Convention, which required a state must have a permanent population, a fixed territory, a government, and the ability to engage in foreign relations.[9] Gaining recognition from the General Assembly would allow the ICC Prosecutor to start an investigation into the suspected war crimes committed in Palestine.
On November 29, 2012, in a closely watched vote by the international community, the General Assembly adopted resolution 67/10, which recognized Palestine as a sovereign state by granting it non-member observer status, similar to that of the Holy See. A crucial step that facilitated Palestinian efforts to bring the suspected war crimes committed by Israel before the ICC.[10]
The change in status enabled Palestinian delegates to continue participating in general debate, cosponsoring motions, and voting in some procedural votes. They were, however, powerless to ask for a referendum or vote on substantive issues. According to reports, several European countries exchanged a “yes” vote for the resolution 67/10, for promises that Palestine will not hurry to join the ICC. With the promise from Palestinian authorities, there also came a gentle reminder that Palestine's right to decide whether to join ICC and given Palestine's goals and best interests, they will determine the appropriate pacing.[11] Within a month of the decision, the Secretariat started using the designation of “State of Palestine” in all official UN documents[12] and precisely one year later, the Palestinian delegation cast their first vote in General Assembly.[13]
Following the Battle of Gaza in 2007, Hamas, a Palestinian Sunni-Islamic fundamentalist group, became the de facto ruling body of the Gaza Strip. Hamas was established in order to free Palestine, especially modern-day Israel, from Israeli occupation and to create an Islamic state in what is now Israel, the West Bank, and Gaza.[14] In July 2014, Israel launched “Operation Protective Edge,” a military operation in the Hamas-ruled Gaza Strip, following the kidnapping and murder of three Israeli teenagers by Hamas’s members. A seven-week conflict broke out, with both sides taking part in airstrikes and ground bombardment, killing thousands and leaving tens of thousands homeless.[15]
As soon as the conflict ended, ICC had to issue a statement on whether it has jurisdiction over Palestine due to immense pressure from the media and their claim that ICC is avoiding investigation over crimes committed in Gaza due to international pressure. ICC reiterated that the situation on Palestinian territories was outside the ICC's jurisdiction at the time, despite certain legal scholars' such as Geoffrey Robertson claiming that the Court should interfere even though formal jurisdictional parameters have not been reached as “it would be a new and possibly productive way to deal with the cloudy legalities.”[16]
With the memory of the conflict still fresh, multiple attempts were made by Palestinian authroity in the General Assembly and Security Council for Palestine’s statehood, but they all failed.[17] With complete statehood out of sight, on December 31, 2014, President Mahmoud Abbas ratified the Rome Statute of the International Criminal Court, giving non-member observer status. The ratification placed the Palestinian Authority's territories under the jurisdiction of the ICC.[18] In addition, President Abbas and the Palestinian Authority released a new Article 12(3) resolution acknowledging the ICC's retroactive jurisdiction, “for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”[19] Within seventeen days (January 16, 2015) of ratifying the Rome Statute, a preliminary examination was opened by the ICC Prosecutor “in order to establish whether the Rome Statute criteria for opening an investigation [were] met.”[20]
After almost five years of examination, on December 20, 2019, ICC Prosecutor Fatou Bensouda established that the preliminary inquiry into the Situation in Palestine has ended with the conclusion that all of the relevant requirements under the Rome Statute for the opening of an investigation have been fulfilled, after a comprehensive, unbiased, and impartial review of all credible evidence available to her office. However, considering the procedural and factual problems surrounding this case, the Prosecutor demanded from Pre-Trial Chamber a jurisdictional decision on the extent of the ICC’s territorial authority in Palestine under article 12(2)(a) of the Rome Statute, which gives the ICC jurisdiction over offenses committed on the territories of a State party to the Rome Statute.[21]
Adhering to the request made by the Prosecutor, on January 28, 2020, the ICC Pre-Trial Chamber released an order outlining the protocol and timetable for submitting findings under Article 19(3) of the Rome Statute regarding the extent of the Court's territorial authority in the situation in the State of Palestine.[22] After a year of investigation, the ICC decided by the majority that in the situation in Palestine, they have jurisdiction over the territory annexed by Israel after 1967, including Gaza, the West Bank, and East Jerusalem.[23] After two decades of struggle and multiple rejections by the ICC, finally, on March 3, 2021, the ICC Prosecutor announced the start of a formal investigation into the Palestinian situation.[24]
SIGNIFICANCE AND CHALLENGES
Around the world, international humanitarian and human rights law is under pressure from and being weakened by a growing culture of impunity. For more than five decades, Israel has occupied Palestinian territories, which has been marked by flagrant violations of international humanitarian law and human rights law. Dozens of UN resolutions and international calls to end Israel's long-term occupation and allow Palestinians to exercise their right to self-determination have been ignored. Not only has the Israeli government refused to meet its most fundamental commitments as an occupying force under international humanitarian law to ensure the safety and protection of the civilian community in the occupied Palestinian territory, but it has also fostered a culture of impunity within its military.[25]
The crisis has been exacerbated by a military justice system that avoids conducting serious and unbiased investigations by relying entirely on debriefings of troops, which are sometimes mislabeled as "operational investigations," to decide whether or not a Military Police inquiry is necessary.[26] Moreover, the Supreme Court of Israel, which established its jurisdiction over the occupied territories shortly after the occupation in 1967, refused to apply the terms of the Geneva Convention IV on the security of citizens, which Israel has ratified. Israel’s stance is that the Convention is not valid within the occupied territories, despite the dominant opinion in international law and among the international community. This stance also allowed the Court to avoid questioning Israeli settlements' legitimacy in the occupied territories in compliance with Geneva Convention IV, article 49, paragraph 6,[27] which states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”[28]
For a long time, the international community's apparent neglect of international humanitarian law application had compelled individual Palestinians and international human rights organizations to investigate possible ways of privately applying the law in the occupied territories in foreign domestic courts. Credible processes of accountability are required to bring this practice to an end. The significance of an ICC investigation lies in its potential to confront Israel's decades of impunity, through which Palestinian injustice is profoundly rooted. The ICC has the authority to try suspects of specific crimes committed in Palestine. As a result, it offers a significant avenue for pursuing the adoption of the UN investigatory bodies' guidelines for transparency in Palestine.[29] The ICC’s investigation into the Situation in Palestine must now build on dossiers on suspected offenders proposed by the UN Commissions of Inquiry on the 2014 Gaza Conflict and the 2018 Great March of Return, which was tasked with “identifying those responsible.” The investigation discovered that Israeli security forces were responsible for 189 deaths and over 300 casualties. Furthermore, the investigation discovered that the responsibility for wrongful deaths and accidents was shared mainly on two fronts. First, anyone that used deadly force, participated in its use, or allowed its use in exceptional circumstances, such as where there was no immediate danger to life or the target was not actively engaging in hostilities; this involves snipers, spotters, and/or commanders on the ground. And second, those who wrote and accepted the rules of engagement.[30]
As significant as the ICC mechanism is in addressing Israeli impunity, it is insufficient on its own and must be pursued with other routes of accountability. The 2018 Commission of Inquiry emphasized that states parties to the Rome Statute and the Geneva Convention IV have an obligation to exercise criminal authority and punish or extradite alleged suspects of crimes committed in Palestine in their own courts.[31]
The root causes of Palestinian injustice, including Israel's protracted occupation, the closing of Gaza, and the ongoing deprivation of the Palestinian people's right to self-determination, must be resolved if the Palestinian people's situation is to be meaningfully changed by international justice and transparency processes. Treating only the effects of the Palestinian people's more significant expulsion and dispossession would amount to nothing more than "temporary band-aids." While international criminal justice is critical for confronting Israeli impunity, it must be balanced by targeted multilateral sanctions and other successful punitive actions by third party countries in order to end the illegitimate situation levied on the Palestinian people and deter more crimes in Palestine.[32]
While the Palestinian Authority has accepted the ICC decisions, even though the ruling has implications on both the parties concerned, Israel has refused to cooperate and has fiercely criticized the decision.[33]
Israel's diplomatic allies have aided its attempts to sway the Court. For example, in a letter sent in February 2020, Canada reportedly told the ICC of its opposition to criminal prosecution in Palestine while also informing the Court of Canada's annual commitment to its budget.[34] This was accompanied by various state representations challenging the Court's work in Palestine, including those from Austria, Australia, Brazil, the Czech Republic, Germany, Hungary, and Uganda.
The most blatant effort to undermine the ICC, though, came from the United States. Following the Court's assessment of the situation in Palestine and suspected war crimes committed by US personnel in Afghanistan, the Trump administration released an executive order permitting penalties to be placed on critical members of the Court's team, including its chief Prosecutor, Fatou Bensouda.[35] ICC has described Trump's executive order as an "unprecedented" assault on justice and the rule of law. In a statement issued by a spokesman, Ned Price, the State Department voiced "serious concerns" about the ICC’s decision. He further stated that “the United States has always taken the position that the court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”[36] However, with the new administration in power, Joe Biden rescinded these sanctions on April 2, 2021, as he claimed that the issue could be handled by engaging with all parties of the ICC process rather than imposing sanctions. Despite the lifting of sanctions, the new administration appears to strongly disagree with the ICC's conduct pertaining to the Palestinian situations and opposes the ICC's attempts to claim jurisdiction over personnel of non-State Parties such as Israel.[37]
International support would be critical now that the ICC decision has been made public; all states must honor their legal commitments, as enshrined in the Rome Statute and the Geneva Conventions, and not stand in the way of what Palestinians have long requested.
Despite the political environment in which the ICC would have to operate, it is essential to recognize that the Court's very structure contains various limits. The Palestinian citizens have been colonized, displaced, and oppressed far beyond the Gaza Strip and West Bank, including East Jerusalem, and yet the International Criminal Court (ICC) will only prosecute international crimes committed within the geographical unit.[38]
The Court's temporal jurisdiction is fixed from June 13, 2014, according to the terms of the State of Palestine's accession to the Rome Statute, a time interval that spans just a fraction of the decades-long deprivation of the Palestinian people's human and communal rights since the Nakba of 1948, where half of Palestine's population was forced to flee or was driven from their homes.[39] There has been no concrete international inquiry or UN process that addresses the situation of the Palestinian community as a whole, including Palestinians on both sides of the Green Line as well as Palestinian refugees and exiles refused their right of return.[40]
Importantly, Palestinian oppression is a long-term and systematic process, but the ICC is intended to seek justice on a case-by-case basis. Individual perpetrators of Rome Statute offenses will and should be adjudicated by the ICC, for instance, the building and maintenance of Israeli settlements, as well as the indiscriminate targeting of civilians. However, the Court's mandate is limited in terms of fixing root causes.[41] Despite these restrictions, the ICC must understand the broader sense of Israeli fragmentation of the Palestinian community, particularly by investigating violations that breach the Green Line, the demarcation line established in the 1949 Armistice Agreements between Israel's army and those of Egypt, Jordan, Lebanon, and Syria following the 1948 Arab–Israeli War. This should include the unlawful movement of Palestinian captives from the occupied territories to Israeli detention centers, where they are subjected to torture and other kinds of ill-treatment on a regular basis.[42]
CONCLUSION
ICC ruling on the situation in the state of Palestine, which came six years after the Court's Chief Prosecutor's Office, Fatou Bensouda's, launched a formal inquiry into Israeli conduct in the territories was a precedent-setting decision. ICC ruled that it has jurisdiction over suspected war crimes and violations of international law committed in Palestinian territory, providing the opportunity for a criminal investigation into Israeli actions. It provides the ability to hinder the growth of the conflict fueled by the lack of admissibility to investigate and prosecute the alleged crimes and the unwillingness to recognize international rules. The ruling by ICC broke the continuous cycle of immunity, which has protected all parties involved in the conflict in Palestine for crimes under international law and has opened the doors for justice in the occupied territory where an investigation can finally happen. However, the Court's very structure has limitations in that it not only prosecutes international crimes committed inside the geographical area, but it also has a limited time constraint that does not account for suspected war crimes done before 2014. Moreover, the constant international pressure from nations worldwide makes it hard to find a suitable decision. Nevertheless, the ICC's ruling reaffirms the Court's impartiality, integrity, and ability to respect the rule of law and its aim to ensure that no government, no matter how large or small, is above the rules.
NOTES:
Decision on the 'Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court's Territorial Jurisdiction in Palestine'," International Criminal Court, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143.
James L. Gelvin, The Israel-Palestine conflict: One hundred years of war, Cambridge University Press, 2014.
Sung Un Kim, "ICC Lacks Jurisdiction to Investigate Palestine War Crimes Claims: Prosecutor," Jurist 3 (2013).
"Rome Statute of the International Criminal Court," https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.
"Timeline: Palestine and the International Criminal Court," Just Security, January 29, 2019, https://www.justsecurity.org/5199/timeline-palestine-icc/.
"Rome Statute of the International Criminal Court," https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.
United Nation Human Rights Council 12/48, Human Rights in Palestine and Other Occupied Arab Territories, A/HRC/12/48 (September 25, 2009), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/158/66/PDF/G0915866.pdf?OpenElement.
“Situation in Palestine,” International Criminal Court, https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A-FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.
"Montevideo Convention on the Rights and Duties of States," The Faculty of Law, https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml.
General Assembly 67/10, Cooperation between the United Nations and the Eurasian Economic Community, A/RES/67/10 (February 6, 2013), https://documents-ddsny.un.org/doc/UNDOC/GEN/N12/479/20/PDF/N1247920.pdf?OpenElement.
Al Jazeera, "Palestinians Renew Statehood Bid," Europe News | Al Jazeera, November 29, 2012, https://www.aljazeera.com/news/2012/11/29/un-votes-to-upgrade-palestinian-status.
United Nations Department of Public Information, Secretary-General Appoints Yeocheol Yoon of Republic of Korea Chief of Protocol, March 8, 2012, https://www.un.org/News/Press/docs/2012/sga1336.doc.html.
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Philip Mattar, Encyclopedia of the Palestinians, Infobase Publishing, 2005.
Eitan Shamir, "Rethinking operation protective edge," Middle East Quarterly (2015).
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Michael R. Gordon, and Somini Sengupta, "Resolution for Palestinian State Fails in United Nations Security Council," The New York Times, December 30, 2014, https://www.nytimes.com/2014/12/31/world/middleeast/resolution-for-palestinian-state-fails-in-security-council.html.
Noah J. Gordon, "Why the Palestinians Joined the International Criminal Court," The Atlantic, December 31, 2014. https://www.theatlantic.com/international/archive/2014/12/Abbas-Palestine-International-Criminal-Court-Rome-Statute/384159/.
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International Criminal Court, State of Palestine, ICC-01/18, https://www.icc-cpi.int/palestine.
"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," International Criminal Court, December 20, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine.
"ICC Pre-Trial Chamber Invites Palestine, Israel, Interested States, and Others to Submit Observations," International Criminal Court, January 28, 2020, https://www.icc-cpi.int/Pages/item.aspx?name=pr1512.
Decision on the 'Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court's Territorial Jurisdiction in Palestine'," International Criminal Court, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-143.
"Statement of ICC Prosecutor, Fatou Bensouda, Respecting an Investigation of the Situation in Palestine," International Criminal Court, March 03, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statement-investigation-palestine.
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Ron Csillag, "Canada Backs Israel in ICC Challenge," The Canadian Jewish News, February 27, 2020, https://www.cjnews.com/news/canada/canada-backs-israel-in-icc-challenge.
Jennifer Hansler, "Trump Authorizes Sanctions against International Criminal Court Officials," CNN, June 14, 2020, https://edition.cnn.com/2020/06/11/politics/icc-executive-order/index.html.
"Statement of the International Criminal Court on Recent Measures Announced by the US," International Criminal Court, June 11, 2020, https://www.icc-cpi.int/Pages/item.aspx?name=200611-icc-statement.
"US Lifts Trump's Sanctions on ICC Prosecutor, Court Official," Reuters, April 02, 2021, https://www.reuters.com/article/us-usa-icc-sanctions/u-s-lifts-trumps-sanctions-on-icc-prosecutor-court-official-idUSKBN2BP1GY.
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International Criminal Court, Declaration Accepting the Jurisdiction of the International Criminal Court, December 31, 2014, https://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.
Micheal G. Kearney, "The Denial of the Right of Return as a Rome Statute Crime," Journal of International Criminal Justice (2020).
"Report on Preliminary Examination Activities (2017)," International Criminal Court, December 04, 2017, https://www.icc-cpi.int/Pages/item.aspx?name=171204-rep-otp-PE.
"Addameer Collects Hard Evidence on Torture and Ill-Treatment Committed against Palestinian Detainees at Israeli Interrogation Centers," Addameer, December 23, 2019, https://www.addameer.org/news/addameer-collects-hard-evidence-torture-and-ill-treatment-committed-against-palestinian.
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