Monday, April 02, 2018

The Palestine-Israel Situation at the ICC: an update of the Prosecutor’s preliminary examination in Palestine

On January 16, 2015, the Prosecutor of the International Criminal Court (ICC), Mrs, Fatou Bensouda, launched a preliminary examination into the situation in Palestine to determine whether there is a reasonable basis to proceed with a formal investigation. Specifically, the Prosecutor will, on the basis of evidence available, consider jurisdiction, the admissibility of alleged crimes, domestic prosecution of them, their seriousness and the interests of justice. If these criteria are met, since the Prosecutor is addressing the situation on her own initiative, she might ask the Pre-trial Chamber to authorize a formal investigation. Such an investigation could lead to an arrest warrant and eventually a trial.

While the Prosecutor has not made a final decision on the crimes to be pursued and persons to charge, she has declared that she has assessed a large amount of relevant materials and has made significant progress in her analysis of both factual and legal matters that are crucial to the determination of a formal investigation. Crimes that are likely to be examined are war crimes and crimes against humanity committed by both Israelis and Palestinians in the West Bank and East Jerusalem since 13 June 2014.

The Office of the Prosecutor (OTP) has put its focus on the settlement activities in the West Bank and East Jerusalem, in particular as they involve the alleged transfer of people into and from those occupied territories.

With regard to the 2014 Gaza conflict, the OTP has considered reported incidents which appear to be the most serious in allegedly harming civilians and/or are representatives of the main types of conduct considered by the Office, including the alleged targets and objects hit by attacks and the geographical areas which appear to be most seriously affected by attacks. The Prosecutor is required to conduct a fully independent, impartial and thorough examination under the strict guidance of the Rome Statute (the Court’s founding treaty) and she will examine potential crimes committed by both Israelis and Palestinian individuals equally, using the same criteria and procedures.

The Rome Statute established an international organization composed of states. On 29 November 2012, the UN General Assembly adopted Resolution 67/19 granting Palestine “non-member state” status. On 2 January 2015, Palestine deposited its instrument of accession to the Rome Statute with the UN Secretary-General (UNSG). In its capacity as depositary and on the basis of the General Assembly resolution, the UNSG accepted Palestine’s accession to the Rome Statute. As a result, Palestine became the 123rd State Party to the ICC, giving the ICC jurisdiction over crimes committed on the territory of Palestine. The Office acknowledged the Secretary General’s decision and concluded that ICC jurisdiction over the Palestine situation began on 29 November, 2012.

There is no timeline provided in the Statute for a final decision on preliminary examination. However, based on the recent proceedings and announcements, it seems that the Prosecutor is more likely than not to be authorized to initiate a formal investigation. If this happens, it could place the Prosecutor in direct and open opposition to the US. The Trump administration position on the ICC as an organization is unclear, but will probably be hostile, given its attitude towards international institutions, which will be strengthened by recent changes in senior officials, and its expected very strong reactions to the ICC’s involvement in Afghanistan and potentially in Palestine. Parts of the U.S. public will share these reactions. Under these circumstances, we provide the general public with this brief blog as background information for the Palestine/Israel situation at the ICC.

For more information, please refer to the two documents published recently by AMICC that provide both a brief overview and a detailed full background of the Prosecutor’s preliminary examination.

Written by Yixuan Ouyang

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