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International Criminal Court investigation in Palestine

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Situation in State of Palestine
The seal of the International Criminal Court
The seal of the International Criminal Court
File no.01/18
Referred byState of Palestine
Date referred22 May 2018
Date opened3 March 2021 (2021-03-03)
Incident(s)Israeli–Palestinian conflict since 13 June 2014[1]
(2014 Gaza War, Israel–Hamas war)
CrimesCrimes against humanity:
· Extermination[2]
· Murder[2]
· Rape[2]
· Torture[2]
· Persecution[2]
· Other inhumane acts[2]
War crimes:
· Taking hostages[2]
· Cruel treatment[2]
· Outrages upon personal dignity[2]
· Starvation of civilians as a method of warfare[2]
· Wilfully causing great suffering, or serious injury to body or health[2]
· Intentionally directing attacks against a civilian population[2]
Status of suspects
Yahya SinwarArrest warrant requested
Mohammed DeifArrest warrant requested
Ismail HaniyehArrest warrant requested
Benjamin NetanyahuArrest warrant requested
Yoav GallantArrest warrant requested

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, on 20 December 2019 announced an investigation into war crimes allegedly committed in Palestine by members of the Israeli military or Hamas and other Palestinian armed groups since 13 June 2014.[1][3]

The allegations include the establishing of illegal Israeli settlements in the occupied West Bank and violations of the law of war by members of the Israeli military during the 2014 Gaza War, including claims of targeting Red Cross installations. Members of armed Palestinian organizations, including Hamas, were accused of deliberately attacking Israeli civilians and using Palestinians as human shields.[3][4][5] Since the investigation was opened in 2015, Israel used its intelligence agencies to surveil, pressure, and threaten senior ICC staff.[6]

Israel is not a member of the ICC and disputes the ICC's jurisdiction, presenting the point of view according to which Palestine is not a sovereign state capable of being a party to the Rome Statute.[Note 1] Israeli Prime Minister Benjamin Netanyahu repeatedly condemned the allegations and investigation as "antisemitic".[7] According to ICC chief prosecutor Karim Ahmad Khan, suspected war crimes by Israelis on Palestinian territory and by Palestinians on Israeli territory during the Israel–Hamas war are within the jurisdiction of the Palestine investigation.[8]

Preliminary investigation and question of jurisdiction

The jurisdiction of the ICC is limited to the territories and nationals of state parties. Israel signed the Rome Statute on 31 December 2000 but did not ratify it. Palestine became a state party with effect from 1 April 2015.[3][5]

The Palestinian National Authority submitted an ad hoc declaration on 22 January 2009, dated the previous day, accepting the Court's jurisdiction for "acts committed on the territory of Palestine since 1 July 2002."[9] On 3 April 2012 the ICC Prosecutor deemed the declaration invalid because the Rome Statute only permits "States" to make such a declaration and Palestine was designated an "observer entity" within the United Nations (the body that is the depositary for the Rome Statute) at the time.[10]

On 29 November 2012, the United Nations General Assembly passed resolution 67/19, recognising Palestine as a non-member observer state.[11][12] In November 2013 the Prosecutor concluded that this decision did "not cure the legal invalidity of the 2009 declaration."[13] A second declaration accepting the court's jurisdiction was reportedly submitted in July 2014 by Palestine's Justice Minister Saleem al-Saqqa and General Prosecutor Ismaeil Jabr, but the ICC Prosecutor responded that only the head of state, head of government or minister of foreign affairs has the authority to make such a declaration. After failing to receive confirmation from Minister of Foreign Affairs Riyad al-Maliki during an August meeting that the declaration had been made on behalf of the Palestinian government, the Prosecutor concluded that the declaration was invalid because it did not come from an authority with the power to make it.[14]

In a published opinion in August 2014, the ICC Prosecutor said that, as a result of Palestine's new status, Palestine was qualified to join the Rome Statute.[15] On 2 September 2014, the Prosecutor clarified that if Palestine filed a new declaration, or acceded to the Rome Statute, it would be deemed valid.[16] In December 2014, the assembly of state parties of the ICC recognized Palestine as a "State" without prejudice to any legal or other decisions taken by the court or any other organization.[17][18] A third declaration was submitted by Palestine on 1 January 2015, dated 31 December 2014, accepting the court's jurisdiction effective 13 June 2014.[19]

Palestine acceded to the Rome Statute on 2 January 2015, with effect on 1 April 2015, and the prosecutor accepted Palestine as state party. In December 2019, Israel argued that the court has no jurisdiction because Palestine is not a sovereign state, in a brief by Israeli attorney general Avichai Mandelblit released hours before an announcement by Bensouda.[5][20] The legal validity of the decision to accept Palestine as a state party was definitively confirmed six years later, in 2021.[21]

A preliminary investigation started in 2015.[4]

2019 Bensouda report

According to Bensouda in December 2019, the criteria for a full investigation had all been met, but jurisdiction had not been established.[4] Bensouda stated, "I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip".[5]

According to Bensouda's report, the Israeli judicial system already makes provision for punishing those accused of war crimes—meaning that the ICC may not have jurisdiction over alleged Israeli violations; Bensouda wrote that she will have to keep reviewing the "scope and genuineness of relevant domestic proceedings" that remain ongoing. Bensouda also found "a reasonable basis to believe that members of Hamas and Palestinian armed groups" are guilty of war crimes, but these groups have no mechanism for punishing such violations.[3]

Israel is accused of illegally establishing West Bank settlements and violating the laws of war during the 2014 Gaza War, including claims of targeting Red Cross installations. Armed Palestinian organizations, including Hamas, are accused of deliberately attacking Israeli civilians and using Palestinians as human shields.[4][5][3]

Responses

Israel: Israeli prime minister Benjamin Netanyahu condemned the investigation as "a black day for truth and justice"[5] and "pure antisemitism", while Israeli newspaper Yedioth Ahronoth denounced "The Hague's hypocrisy" in a headline.[3] In an interview with Times of Israel Bensouda described the charge of antisemitism as "a particularly regrettable accusation that is without merit" and emphasized that the court strives to be fair and impartial.[22]

United States and others: Secretary of State Mike Pompeo stated, "We firmly oppose this and any other action that seeks to target Israel unfairly."[4] Australia argued that the issues should be resolved by negotiation, while Germany stated that it trusts the court and wants to avoid politicising the case.[23] Hungary announced that it agrees with Israel's arguments about jurisdiction.[24]

Palestinian Authority: The Palestinian Authority issued a statement declaring that "Palestine welcomes this step as a long overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination".[4]

Decisions on jurisdiction

Chief Prosecutor's final decision

On 16 March 2020, following the submission of amicus curiae briefs,[25] Bensouda requested another month to weigh the question of Palestinian statehood and jurisdiction over the West Bank, Gaza and East Jerusalem.[26] About 50 countries and NGOs had filed such briefs for consideration and on 29 April 2020, over 180 Palestinian and international organizations, and individuals filed an open letter in support of Palestine.[27][28] Amici curiae filings made by eight states parties, Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda argued that the ICC did not have jurisdiction on the grounds that Palestine is not a state.[29]

On 30 April 2020, Bensouda stood by her initial finding, writing "The Prosecution has carefully considered the observations of the participants and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory,"[30][31]

ICC Pre-Trial Chamber I

On 5 February 2021, the ICC Pre-Trial Chamber I "decided, by majority, that the Court's territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem." Judges ruled that the court has jurisdiction, rejecting Israel's argument to the contrary. The decision does not attempt to determine statehood or legal borders. Presiding Judge Péter Kovács appended a partly dissenting opinion.[21][32]

On 3 March, within a month of the ICC ruling, the prosecutor opened the investigation which "will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation [of Palestine] since 13 June 2014, the date to which reference is made in the Referral of the Situation to my Office."[1] Without Palestine's additional declaration, the court would only have had jurisdiction over events in Palestine after 1 April 2015.[33] On 1 January 2015, the New York Times reported Shawan Jabarin, director of the human rights group Al Haq, saying that "the Palestinians would submit a request for retroactive jurisdiction to last June 13, to coincide with the period being considered" by the United Nations Fact Finding Mission on the 2014 Israel–Gaza conflict."[34][35] According to the Associated Press, "the Palestinians chose June 2014 as the start of the investigation to coincide with the run-up to Israel's devastating Gaza war that summer."[36]

Investigation

2021–2022

The ICC prosecutor's office said on 18 March 2021 that it had sent formal notices to Israel and the Palestinian Authority giving them a month "to seek deferral by proving they are carrying out their own investigations" and that letters were sent to ICC member states on 9 March.[37] On 18 March 2021, the Times of Israel, citing Israel's Channel 13, reported that Israel received a letter from the ICC briefly laying out the three main areas the investigation would cover: the 2014 Gaza War, Israeli settlement policy and the 2018–2019 Gaza border protests. Israel was given 30 days to respond.[38] After being interrogated at the Jordan Palestine border crossing following his return to the West Bank on 21 March 2021, after a meeting with the ICC Prosecutor at The Hague, Minister of Foreign Affairs and Expatriate Riyad Malki said that the Israeli authorities threatened to impose sanctions for communicating with the ICC but that contact would continue regardless.[39][40] On 8 April 2021, Israel said it would write to say that it would not cooperate with the ICC's investigation, arguing that the court did not have jurisdiction and that its own judiciary was capable of trying soldiers suspected of committing war crimes.[41]

Minister of Foreign Affairs and Expatriates Riyad Al-Maliki met the ICC prosecutor Karim Khan at the Hague on 9 June 2022 and "questioned the delay in the Court's investigations into the Palestinian issue". According to WAFA, Khan said that Palestine is one of the cases that the Court is looking at and that failure is not an option.[42] The Jerusalem Post reported that, as of 18 June 2022, a year since Fatou Bensouda was replaced by Khan, he "[had] not issued a single public statement or taken a single public action regarding Israel–Palestine". Khan took a strong active position on the 2022 Russian invasion of Ukraine, with international support, based on Ukraine filing an ad hoc acceptance of crimes committed on its territory, even though Russia is not an ICC member, similar to the Palestinian situation.[43] In May, the Palestinian human rights organizations Al-Haq, Al-Mezan and the Palestinian Center for Human Rights (PCHR) submitted a casefile to the ICC in respect of alleged crimes committed in Gaza during the 2021 Israel–Palestine crisis.[44] Submissions were made regarding the death of Shireen Abu Akleh, added to an existing April filing in respect of four other journalists, arguing that Israeli security forces have been systematically targeting Palestinian journalists in violation of international humanitarian law.[45]

2023–present

Main article: War crimes in the Israel–Hamas war

In 2023, the ICC Registry continued to provide three-monthly reports on its information and outreach requests to victims and affected communities, as required since December 2018, publishing its 19th report in May 2023. Units of the ICC involved in the activities as of the May 2023 report included units such as the Victims Participation and Reparations Section and the Trust Fund for Victims. Work was reported on preparing an "online information module" of videos and written information in Arabic about the ICC in relation to the investigation in Palestine.[46]

On 12 October, during the 2023 Israel–Hamas war, ICC chief prosecutor Khan stated that both war crimes committed by Palestinians on Israeli territory and by Israelis on Palestinian territory would be within the jurisdiction of the ICC's Palestine investigation.[8]

On 29 November, Khan visited the Rafah Border Crossing between Egypt and the Gaza Strip.[47][48] The following day, Khan visited Israel, after Israeli families of victims of the Hamas attacks appealed to the ICC to order an investigation into the killings and abductions.[49][50] During his visit Khan toured the sites of the massacres of Beeri, Kfar Aza, and the Nova Music Festival near Re'im. In a statement that followed, Khan referred the 7 October attacks against Israeli civilians as serious international crimes, which the ICC was established to address.[51][52][53] On 3 December, in a video message from Ramallah, Khan said the 2021 ICC investigation is "moving forward at pace, with rigor, with determination and with an insistence that we act not on emotion but on solid evidence." Khan said that both Israel and Hamas should respect the rules of war and that he was accelerating his investigation into Israeli settler violence.[54][55]

In late April 2024, ICC staff interviewed Palestinian hospital staff from the Gaza Strip about possible war crimes.[56][57]

Arrest warrants

People for whom request warrants were requested on 20 May 2024 in the ICC investigation in Palestine

On 20 May 2024, Khan announced that he would file applications for arrest warrants against Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh and Israeli leaders Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant.[58][2][59]

In January 2024, prior to his 20 May announcement, Khan convened an eight-person panel of legal and academic experts, including British barrister Amal Clooney, for reviewing his Palestine investigation. Khan requested the panel to review whether his applications for arrest warrants satisfied the ICC's standards. For the May announcement, he asked the panel whether "there were 'reasonable grounds to believe' that those named in the warrant applications had committed crimes within the court's jurisdiction".[60] The panel published a report[61] and stated that it extensively studied the evidence and legal analysis. The panel unanimously found Khan's decision to be justified.[60] The six legal experts from the panel published a statement in the Financial Times explaining their support for the warrant request, stating that the request for the five warrants was "a historic step to ensure justice for the victims in Israel and Palestine".[62]

On 27 June 2024, the court decided that it would hear argument from the UK about ICC jurisdiction over Israeli citizens. Legal experts and Human Rights Watch expressed doubts about the UK arguments while an Israeli official has said "the jurisdictional issues are not resolved".[63] On 8 July, following the UK general election resulting in a change of government, representatives of the governing Labour Party stated that they considered the ICC to have "jurisdiction over Gaza". The Guardian interpreted this as implying a likely dropping of the UK objection to ICC jurisdiction.[64] Later, Maariv reported that Britain's Foreign Secretary, David Lammy, had given assurances the UK would not drop the juridictional objection.[65][66]

The arrest warrants charge Netanyahu and Gallant as co-perpetrators of the war crime of starvation as well as "wilfully causing great suffering, or serious injury to body or health or cruel treatment, wilful killing or murder as a war crime, and intentionally directing attacks against civilians in Gaza," and the crimes against humanity of extermination, murder, and other inhumane acts. In order to secure the arrest warrants the prosecutor must convince the Pre-Trial Chamber that there are "reasonable grounds to believe" that the defendants are guilty of the alleged acts.[67]

Resources

As of October 2023, the Palestine investigation in particular and the ICC as a whole were underfunded according to Karim Khan. Khan stated, "Palestine – like every other situation that we have – is underfunded and under-resourced and it is a challenge to state parties and the international community whether they wish to give us the tools to do the job."[68]

Administration

Andrew Cayley, a barrister and former military prosecutor, was appointed in March 2024 to manage the investigation together with US lawyer Brenda Hollis.[69]

Israeli threats to ICC

In 2024, an investigation by The Guardian, jointly with the Israeli magazines +972 and Local Call, uncovered a nine-year campaign by Israel using its intelligence agencies "to surveil, hack, pressure, smear and allegedly threaten senior ICC staff in an effort to derail the court's inquiries." Israel had intercepted phone calls and other types of communications of several ICC officials including former prosecutor Fatou Bensouda and her successor Karim Ahmad Khan, a surveillance campaign that was closely followed by Israeli Prime Minister Benjamin Netanyahu, who one intelligence officer described as being "obsessed." The efforts were carried out by the Mossad, the Shin Bet, and the Israeli military's intelligence directorate.[6] The accusations were denied by Israel.[6] On 14 June, following The Guardian's investigations, 93 states party to the Rome Statute issued a joint statement stating that they would defend the ICC and "preserve its integrity from any political interference and pressure against the court, its officials and those cooperating with it".[70]

In one incident, two months after the opening of the investigation in 2015, ICC prosecutor Bensouda was approached by an unknown German woman who had given her an envelope that contained hundreds of dollars and a paper with an phone number originating in Israel. The incident was reported to the Dutch authorities, which provided Bensouda with extra security.[6]

In another incident in 2019, Bensouda was "ambushed" by Mossad director Yossi Cohen, who had suddenly appeared in a New York hotel suite that was hosting an official meeting between the prosecutor and then Democratic Republic of the Congo president Joseph Kabila. Cohen proceeded to subject Bensouda to unwanted calls, with sources interviewed by The Guardian describing him as becoming "increasingly threatening and intimidating."[6]

Following the Israel-Hamas war on 7 October 2023, during the investigations led by the new prosecutor Karim Khan, the ICC improved its security situation in anticipation of further Israeli surveillance attempts.[6]

Reactions

See also: United States and the International Criminal Court

On 16 April 2024, Israeli prime minister, Benjamin Netanyahu, and three Israeli government ministers held an emergency meeting with governmental legal advisors to discuss the possibility of ICC arrest warrants being issued against Israeli prime minister Benjamin Netanyahu, other senior officials, or officers of the Israeli Defense Forces. According to Channel 12, a decision was taken at the meeting that "Israel would reach out to the court and 'diplomatic figures with influence'" with the aim of blocking the issuing of arrest warrants.[71] By late April, Israeli officials considered it increasingly likely that warrants would be issued for Israeli and Hamas officials.[72][73] The Times of Israel (ToI) described Israeli officials as making "a concerted effort" to prevent the ICC from issuing warrants. The ToI stated that the Israeli National Security Council and Foreign Ministry were involved in acting against the ICC issuing warrants, and that Netanhayu was carrying out a "nonstop push over the telephone" with the US government of president Biden to prevent the warrants.[74] Diplomats from the G7 states asked the court not to announce war crimes warrants against either Israeli or Hamas officials, arguing that warrants could "disrupt" ceasefire talks. The ICC unofficially stated to diplomats that it was "not aware of any dramatic moves in the investigation". The ICC refused to comment, saying it would not respond to "speculation in media reports".[75][56][76]

Zeteo News published what it claimed was a scan of a 24 April letter sent to Khan by twelve Republicans in the U.S. Senate, Tom Cotton, Marco Rubio, Ted Cruz, Mitch McConnell, Marsha Blackburn, Katie Boyd Britt, Ted Budd, Kevin Cramer, Bill Hagerty, Pete Ricketts, Rick Scott, and Tim Scott, which requested the ICC not to make any attempt to pursue charges against Israeli officials over war crimes committed in the Gaza Strip. The Senators stated: "Target Israel and we will target you ... [and] sanction your employees and associates, and bar you and your families from the United States. ... You have been warned." Democratic U.S. Senator, Chris Van Hollen, commented on the letter: "It is absolutely wrong to interfere in a judicial matter by threatening judicial officers, their family members and their employees with retribution. This thuggery is something befitting the mafia, not U.S. senators."[77] On 1 May 2024, US senators met court officials online to discuss potential arrest warrants.[78] On 3 May 2024, chief prosecutor Khan, while not mentioning the warrants, called for "all attempts to impede, intimidate, or improperly influence officials [to] cease immediately" and referred to Article 70 of the Rome Statute defining "retaliating against an official of the court on account of duties performed" as an offence.[79][80][77]

Reactions to the 20 May 2024 request for arrest warrants varied from opposition to support. US President Joe Biden and Secretary of State Antony Blinken condemned the arrest warrant for Israeli Prime Minister Netanyahu.[81] Blinken said the Biden administration would work with Congress on potential sanctions against the ICC.[82] US members of Congress Kathy Manning and Ritchie Torres also denounced the arrest warrant against Netanyahu. Senator Lindsey Graham threatened "damning sanctions against the ICC."[83] Canada's Prime Minister Justin Trudeau said it's "troubling" that arrest warrants are simultaneously being sought for "the democratically elected leaders of Israel and the bloodthirsty terrorists that lead up Hamas."[84] British premier Rishi Sunak called the arrest warrants "deeply unhelpful", stating there is no "moral equivalence" between Israel and Hamas, adding that this move would make "absolutely no difference" to achieving wider peace in the Middle East.[85] Government representatives of Argentina,[86] Austria, Hungary and Paraguay expressed opposition to the request.[87] Czech Prime Minister Petr Fiala called the ICC Prosecutor's request for an arrest warrant "appalling and absolutely unacceptable".[88] Polish Prime Minister Donald Tusk also criticized the arrest warrant request for Netanyahu.[89] Hamas spokesperson Sami Abu Zuhri criticized the arrest warrant requests as "equat[ing] the victim with the executioner".[90]

Statements of support were made in the US and elsewhere. US member of Congress Ilhan Omar said that the ICC "must be allowed to conduct its work independently and without interference."[83] Government representatives of Australia,[91] France, Spain, Ireland, Belgium, Switzerland, Austria, Slovenia, Denmark, Norway, Chile, Canada, South Africa, Maldives, Oman and Jordan expressed support for the independence of the ICC.[87] According to US attorney Kenneth Roth, who led Human Rights Watch for 29 years, "These charges are not about Israel's right to defend itself, which no one questions. They're about how Israel has chosen to defend itself, and no cause, no matter how just, can be used as an excuse to commit war crimes."[92] Israeli human rights group B'Tselem said: "The era of impunity for Israeli decision-makers is over."[93] In June 2024, 93 nations including the aforementioned reiterated their support for the ICC's independence.[94]

Israeli attorney general Gali Baharav-Miara stated that the investigation lacked jurisdiction and that Khan's request for arrest warrants was baseless. She stated that the request was inconsistent with the ICC's requirement to let national-level legal systems handle the situation first.[95] According to Kenneth Roth, the credibility of Israel's claim to be carrying out a local legal procedure that takes precedence over ICC-level procedures is weak due to Israeli threats to the ICC, which could amount to obstructions of justice and may violate Article 70 of the Rome Statute.[96][97]

See also

Notes

  1. ^ Since 2021, the legal validity of the court's jurisdiction over Palestine has been definitively confirmed by the ICC's pre-trial chamber; see § Preliminary investigation and question of jurisdiction in this article.

References

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Further reading

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