Israel & the International Criminal Court

"As we have just announced, during the latest reporting period, four preliminary examinations have concluded. Three situations have been slated for investigation: Palestine, announced at the end of last year, and Nigeria and Ukraine, both announced last week, while the preliminary examination concerning Iraq/UK did not, in my Office's assessment, meet the criteria under the Statute for proceeding.
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With respect to Palestine, as you know, at the end of last year I announced that we had concluded the preliminary examination and determined there was a reasonable basis to proceed. I determined that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip; that the potential cases arising from the situation would be admissible; and that there were no substantial reasons to believe that an investigation would not serve the interests of justice. Since there was a referral from the State of Palestine, I did not need to seek authorisation to open an investigation. Nonetheless, I proceeded to file a request with the Pre-Trial Chamber asking for a ruling on the jurisdictional scope of the Court's competence – more specifically, I asked the Pre-Trial Chamber to confirm that the Court may exercise its jurisdiction with respect to any alleged ICC crime occurring in the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza. In other words, we asked the judges to confirm the territorial jurisdiction where we can investigate.

I have been criticised by some for seeking this ruling – and I appreciate the frustrations caused by the resultant delay in opening investigations. My intention was to secure a swift resolution of this complex question, as you know. I sought the request because this matter is of such fundamental importance that it will be litigated, at some point, during the life cycle of the situation. Better now, at the outset, where its resolution can pave the way for an effective investigation on a judicially tested ground, rather than years down the line when a suspect is in the dock. Moreover, because my powers to require cooperation from States Parties are linked to the Court's jurisdictional competence, the lack of clarity and even conflict among some States Parties as to the extent of that authority raised the very real prospect of early disputes on the legality of my cooperation requests. Resolving this issue at the outset clears the path for effective investigations. Since this issue could not be avoided, I asked for a ruling as early as possible, to be delivered expeditiously. I am aware of the pace of proceedings, almost a year hence. But I also recognise that the question posed is a highly complex one which has divided scholars, practitioners and States. I remain hopeful of a ruling early in 2021."

"Today, I announce that following a thorough, independent and objective assessment of all reliable information available to my Office, the preliminary examination into the Situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.

I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute. In brief, I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip ("Gaza") (for specifics, see paras. 94-96); (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.

As there has been a referral from the State of Palestine, there is no requirement to seek Pre-Trial Chamber's authorisation before proceeding to open an investigation, and I do not seek to do so.

However, given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, I deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.

Earlier today, I therefore requested from Pre-Trial Chamber I a jurisdictional ruling on the scope of the territorial jurisdiction of the International Criminal Court ("ICC" or the "Court") under article 12(2)(a) of the Rome Statute in Palestine.

Specifically, I have sought confirmation that the "territory" over which the Court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza. Such determination is made strictly for the purposes of determining the Court's ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute.

As I have observed in my submissions before the Chamber, determining where I can investigate in the unique circumstances of this situation should be resolved before I commence an investigation, and not settled only later by judges after my investigations are completed. This foundational question should be decided now, and as swiftly as possible in the interests of victims and affected communities; potential witnesses and their related protection needs and obligations as well as the conduct of the investigations and the efficiency of the judicial proceedings, not to mention providing clarity for the States concerned. As such, as a prosecuting office, we believe this is the responsible step to take in the circumstances of this situation.

By seeking this ruling, I have invited the Chamber to rule expeditiously, while also permitting victims, relevant States, and others to participate in these proceedings, as appropriate. By engaging in an open and transparent manner in obtaining a ruling on this important issue, I hope that the process would not only assist the Chamber in its determination, but also endow its decision, and my ensuing investigation, with greater clarity and reinforced legitimacy. It is necessary for this specific matter before the Chamber to be resolved without undue delay so that my Office can take the appropriate next steps accordingly."

"I have been following with concern the planned eviction of the Bedouin community of Khan al-Ahmar, in the West Bank. Evacuation by force now appears imminent, and with it the prospects for further escalation and violence.

It bears recalling, as a general matter, that extensive destruction of property without military necessity and population transfers in an occupied territory constitute war crimes under the Rome Statute.

I am similarly alarmed by the continued violence, perpetrated by actors on both sides, at the Gaza border with Israel.

As Prosecutor seized of the situation in Palestine, I therefore feel compelled to remind all parties that the situation remains under preliminary examination by my Office.

I continue to keep a close eye on the developments on the ground and will not hesitate to take any appropriate action, within the confines of the independent and impartial exercise of my mandate under the Rome Statute, with full respect for the principle of complementarity."

"Today, 22 May 2018, I received a referral from the Government of the State of Palestine ("Palestine"), a State Party to the Rome Statute, regarding the situation in Palestine since 13 June 2014 with no end date.

Specifically, pursuant to articles 13(a) and 14 of the Rome Statute of the International Criminal Court ("ICC" or "Court"), the State of Palestine "requests the Prosecutor to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court's jurisdiction, committed in all parts of the territory of the State of Palestine". Pursuant to Regulation 45 of the Regulations of the Court, I have informed the ICC Presidency of this referral.

This is the eighth referral to be received from a State Party since the Rome Statute came into force on 1 July 2002. Previously, the Governments of Uganda (2004), the Democratic Republic of the Congo (2004), the Central African Republic (2004 and 2014), Mali (2012), the Comoros Islands (2013) and the Gabonese Republic (2016) each referred a situation to my Office in accordance with their prerogatives as a State Party.

Since 16 January 2015, the situation in Palestine has been subject to a preliminary examination in order to ascertain whether the criteria for opening an investigation are met.

This preliminary examination has seen important progress and will continue to follow its normal course, strictly guided by the requirements of the Rome Statute.

Specifically, under article 53(1) of the Statute, as Prosecutor, I must consider issues of jurisdiction, admissibility and the interests of justice in making this determination. As noted in the Office's Policy Paper on Preliminary Examinations, these factors are applied to all situations, irrespective of whether the preliminary examination was initiated on the basis of information received on crimes, by a referral from a State Party or the United Nations Security Council, or by a declaration lodged pursuant to article 12(3) of the Statute. In all circumstances, my Office independently evaluates and analyses the information received.

A referral or an article 12(3) declaration does not automatically lead to the opening of an investigation. Should I, however, ultimately determine that the situation referred warrants an investigation in accordance with the statutory criteria, as a result of this referral, the Statute does not require the Prosecutor to seek authorisation from the Pre-Trial Chamber of the Court in order to proceed with an investigation.

There should be no doubt that in this and any other situation before my Office, I will always take the decision warranted by my mandate under the Rome Statute."

It is with grave concern that I note the violence and deteriorating situation in the Gaza Strip in the context of recent mass demonstrations. Since 30 March 2018, at least 27 Palestinians have been reportedly killed by the Israeli Defence Forces, with over a thousand more injured, many, as a result of shootings using live ammunition and rubber-bullets. Violence against civilians - in a situation such as the one prevailing in Gaza – could constitute crimes under the Rome Statute of the International Criminal Court ("ICC" or "the Court"), as could the use of civilian presence for the purpose of shielding military activities.

I remind all parties that the situation in Palestine is under preliminary examination by my Office. While a preliminary examination is not an investigation, any new alleged crime committed in the context of the situation in Palestine may be subjected to my Office's scrutiny. This applies to the events of the past weeks and to any future incident.

I am aware that the demonstrations in the Gaza Strip are planned to continue further. My Office will continue to closely watch the situation and will record any instance of incitement or resort to unlawful force. I urge all those concerned to refrain from further escalating this tragic situation.

Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC's jurisdiction is liable to prosecution before the Court, with full respect for the principle of complementarity. The resort to violence must stop."

"The purpose of this visit will be to undertake outreach and education activities with a view to raising awareness about the ICC and in particular, about the work of the Office; to address any misperceptions about the ICC and to explain the preliminary examination process. Such visits are standard practice, even in countries that are not State Parties to the Rome Statute.

In accordance with its usual practice at this stage of its work, the delegation will not engage in evidence collection in relation to any alleged crimes; neither will the delegation undertake site visits, or assess the adequacy of the respective legal systems to deal with crimes that fall within ICC jurisdiction..."

"In addition, the Office announced its conclusion that there was a reasonable basis to proceed with an investigation into the situation in the State of Palestine, while seeking a ruling on jurisdiction pursuant to article 19 (3) of the Rome Statute in order to confirm the territory over which the Court may exercise its jurisdiction.
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5. State of Palestine
54. On 20 December 2019, the Prosecutor announced her conclusion that, on the basis of a thorough, independent and objective assessment of all reliable information available, there was a reasonable basis to proceed with an investigation into the situation, pursuant to article 53 (1) of the Rome Statute. However, given the unique and contested legal and factual issues attaching to the situation, before opening an investigation, the Prosecutor requested, pursuant to article 19 (3) of the Statute, a jurisdictional ruling from Pre-Trial Chamber I seeking confirmation that the territory over which the Court may exercise its jurisdiction comprises the West Bank, including East Jerusalem, and Gaza.
55. On 28 January 2020, Pre-Trial Chamber I invited the State of Palestine, Israel and victims of the situation to submit written observations on the Prosecutor's request and invited other States, organizations and persons to submit applications for leave to file observations as amicus curiae. The Chamber subsequently received observations on behalf of the State of Palestine, 11 observations by groups of victims and 43 observations by amici curiae, as well as a consolidated response by the Prosecutor. The matter is pending."

"The Office of the Prosecutor continued preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom of Great Britain and Northern Ireland, Nigeria, the Philippines, Ukraine, Venezuela (Bolivarian Republic of) and the State of Palestine.
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10. State of Palestine
59. The Office of the Prosecutor continued to analyse information pertaining to the Court's jurisdiction in the State of Palestine, the crimes allegedly committed by both parties to the 2014 Gaza conflict, and crimes allegedly committed in the West Bank, including East Jerusalem, since 13 June 2014. The Office also continued to analyse the admissibility of the potential cases it had identified.
60. In the course of that process, the Office engaged with a number of stakeholders, including officials of Palestine and of Israel, intergovernmental and non-governmental organizations, and civil society. On 22 May 2018, the Office received a referral from the Government of the State of Palestine regarding the situation in the State of Palestine since 13 June 2014, with no end date. The Office advanced and significantly progressed its analysis of all factors pursuant to the Rome Statute criteria with a view to completing the preliminary examination as expeditiously as possible."

"In addition to its investigations, the Office of the Prosecutor is currently conducting nine preliminary examinations. During the reporting period, the Office opened two new preliminary examinations of the situations in the Philippines and the Bolivarian Republic of Venezuela; continued the preliminary examinations of the situations in Colombia, Gabon, Guinea, Iraq/the United Kingdom of Great Britain and Northern Ireland, Nigeria, Ukraine and the State of Palestine; closed the preliminary examination of the situation on registered vessels of the Comoros, Greece and Cambodia; completed the preliminary examination of the situation in Burundi, obtaining authorization to proceed with an investigation; and completed the preliminary examination of the situation in Afghanistan, requesting authorization to open an investigation.
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8. State of Palestine
55. The Office of the Prosecutor continued to analyse information pertaining to the Court's jurisdiction in Palestine, as well as crimes allegedly committed by both parties to the conflict in Gaza in 2014 and crimes allegedly committed in the West Bank, including East Jerusalem, since 13 June 2014. The Office held multiple meetings at the Court with relevant stakeholders, including government officials and civil society representatives.
56. On 8 April, the Prosecutor issued a statement expressing concern over violence reportedly committed in the context of demonstrations along the Gaza border.
57. In May 2018, the Office received a referral from the Government of the State of Palestine, in accordance with articles 13 (a) and 14 of the Rome Statute, regarding the situation in Palestine since 13 June 2014. On 13 July, Pre-Trial Chamber I issued a decision on information and outreach for victims of the situation."

"In addition to its investigations, the Office of the Prosecutor is currently conducting 10 preliminary examinations. During the reporting period, the Office opened a preliminary examination of the situation in Gabon following the referral of Gabon with respect to alleged crimes committed on its territory since May 2016, and continued activities relating to preliminary examinations in Afghanistan, Burundi, Colombia, Guinea, Nigeria, Iraq/United Kingdom of Great Britain and Northern Ireland, Ukraine and the State of Palestine, and with respect to the registered vessels of the Comoros, Greece and Cambodia...
II. Update on judicial and prosecutorial activities
A. Preliminary examinations
2. During the reporting period, the Office of the Prosecutor opened a preliminary examination of the situation in Gabon and continued preliminary examinations of the situations in Afghanistan, Burundi, Colombia, Guinea, Iraq/United Kingdom, Nigeria, Ukraine and the State of Palestine and with respect to the registered vessels of the Comoros, Greece and Cambodia. The Office published a report on its preliminary examination activities on 14 November 2016 on the occasion of the fifteenth session of the Assembly of States Parties to the Rome Statute.
3. The Office of the Prosecutor continued to analyse information received alleging the commission of crimes potentially falling within the Court's jurisdiction. From 1 August 2016 to 30 June 2017, the Office registered 556 communications submitted under article 15, of which 359 were found to be manifestly outside of the Court's jurisdiction; 48 were found to be unrelated to current situations and warranting further examination; 71 were found to be linked to situations already under examination; and 78 were linked to existing investigations or prosecutions...
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8. State of Palestine
18. The Office of the Prosecutor continued to analyse information on the situation in the State of Palestine, including with respect to crimes allegedly committed by both parties to the Gaza conflict of 2014 and crimes allegedly committed in the West Bank and East Jerusalem since 13 June 2014.
19. In October 2016, the Office conducted a visit to Israel and the State of Palestine, facilitated by the respective authorities, with a view to awareness-raising on the preliminary examination process. The Office travelled to Bethlehem, Jerusalem, Ramallah and Tel Aviv, and held meetings with Israeli and Palestinian officials. During the reporting period, the Office continued its engagement with the authorities of both Israel and the State of Palestine."

"II. Update on judicial and prosecutorial activities
A. Preliminary examinations
2. The Office of the Prosecutor opened a preliminary examination of the situation in Burundi, continued preliminary examinations of the situations in Afghanistan, Colombia, Guinea, Iraq, Nigeria, Ukraine and the State of Palestine and of the Comoros referral and concluded its preliminary examinations of the situations in Georgia and Honduras. It published a report on its preliminary examination activities on 12 November 2015.
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9. State of Palestine
23. The Office of the Prosecutor continued to gather and evaluate information on alleged crimes committed by both parties to the Gaza conflict of 2014 and certain alleged crimes committed in the West Bank and East Jerusalem since 13 June 2014, such as those relating to settlement activities.
24. The Office consulted and engaged with State authorities and intergovernmental and non-governmental organizations to address a range of issues relevant to the preliminary examination and specifically to seek additional information to further inform its assessment of the alleged crimes. The Office held numerous meetings with national and international stakeholders and conducted a mission to Amman. In October 2015, the Office also met the President of the State of Palestine, Mahmoud Abbas, during which, among other things, the Prosecutor addressed the escalation of violence in the region and the need for all sides to show calm and restraint."