Israel & the International Criminal Court

INTRODUCTION
1. The Prosecutor opened a preliminary examination of this situation on 16 January 2015,[FN. 1] shortly after Palestine had accepted the jurisdiction of the Court for alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014".[FN. 2] Having acceded to the Statute,[FN. 3] Palestine subsequently also referred this situation to the Prosecutor on 22 May 2018 ("Referral"),[FN. 4] specifying that "[t]he State of Palestine comprises the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, [which] includes the West Bank, including East Jerusalem, and the Gaza Strip".[FN. 5]
2. The Prosecutor is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute. There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip ("Gaza" or "Gaza Strip"), and the Prosecution has identified potential cases arising from the situation which would be admissible. There are no substantial reasons to believe that an investigation would not serve the interests of justice.
3. The Prosecutor considers that the Court's territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza. This territory has been referred to as the "Occupied Palestinian Territory" and is delimited by the 'Green Line' (otherwise known as the 'pre-1967 borders'), the demarcation line agreed to in the 1949 Armistices.[FN. 6]
4. The legal consequence of the Referral in 2018 is that the Prosecutor is no longer required to seek the authorisation of the Pre-Trial Chamber to open an investigation, under article 15(3) of the Statute, now that she is satisfied that the conditions under article 53(1) of the Statute have been met.
5. However, notwithstanding her own view that the Court does indeed have the necessary jurisdiction in this situation, the Prosecutor is mindful of the unique history and circumstances of the Occupied Palestinian Territory. Indeed, it is no understatement to say that determination of the Court's jurisdiction may, in this respect, touch on complex legal and factual issues. Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed. The West Bank and Gaza are occupied and East Jerusalem has been annexed by Israel. The Palestinian Authority does not govern Gaza.[FN. 7] Moreover, the question of Palestine's Statehood under international law does not appear to have been definitively resolved. Although the Prosecutor is of the view that the Court may exercise its jurisdiction notwithstanding these matters, she is aware of the contrary views. Consequently, in order to seek judicial resolution of this matter at the earliest opportunity-and thus to facilitate the practical conduct of her investigation by placing it on the soundest legal foundation-the Prosecutor exercises her power under article 19(3) of the Statute and respectfully requests Pre-Trial Chamber I ("the Chamber") to rule on the scope of the Court's territorial jurisdiction in the situation in Palestine. Specifically, the Prosecution seeks confirmation that the "territory" over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza.
6. The resolution of this foundational issue is necessary now for several reasons. First, it will allow judicial consideration of an essential question before embarking on a course of action which might be contentious. The jurisdictional regime of the Court is a cornerstone of the Rome Statue, and it is therefore in the interests not only of the Court as a whole, but also of the States and communities involved, that any investigation proceeds on a solid jurisdictional basis. And it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking. Second, an early ruling will facilitate the practical conduct of the Prosecutor's investigation by both demarcating the proper scope of her duties and powers with respect to the situation and pre-empting a potential dispute regarding the legality of her requests for cooperation. By ensuring that there is no doubt as to the proper scope of the Prosecutor's investigation, it will potentially save considerable time and effort for all parties concerned. Third, while the Prosecution wishes to obtain a ruling expeditiously, it would provide an opportunity for legal representatives of victims and the referring State to participate in the proceedings, if they wish. In addition, other States and interested parties or entities may also seek to participate pursuant to rule 103 of the Court's Rules of Procedure and Evidence, subject to the Chamber's ruling on the conduct of proceedings. Considering the complexity of the issues arising in this situation, the Court would benefit from a judicial process that enables the Chamber, within a reasonable timeframe, to hear relevant views which might assist it in its determination and thereby endow its decision with greater legitimacy.[FN. 8]
7. In concluding that the Court has the necessary jurisdiction for this situation-and the territorial scope of this jurisdiction-the Prosecutor has primarily been guided by Palestine's status as a State Party to the Rome Statute since 2 January 2015 following the deposit of its instruments of accession with the United Nations ("UN" or "United Nations") Secretary-General pursuant to article 125(3).[FN. 9] Of note, in discharging his functions as a depositary for the Statute according to the 'all States' formula enshrined in article 125(3), the UN Secretary-General relies on determinations made by the UN General Assembly as to whether a particular entity may be characterised as a State.[FN. 10] In order to exercise its jurisdiction in the territory of Palestine under article 12(2), the Court need not conduct a separate assessment of Palestine's status (nor of its Statehood) from that which was conducted when Palestine joined the Court. This is because, under the ordinary operation of the Rome Statute, a State that becomes a Party to the Statute pursuant to article 125(3) "thereby accepts the jurisdiction of the Court" according to article 12(1).[FN. 11] Article 12(2) in turn specifies the bases on which the Court may exercise its jurisdiction as a consequence of a State becoming a Party to the Statute under article 12(1) or having lodged a declaration under article 12(3). Simply put, a State under article 12(1) and article 125(3) should also be considered a State under article 12(2). There is no reason why this logic should not apply to Palestine.
8. In this case, pursuant to UN General Assembly resolution 67/19 which was adopted on 29 November 2012, Palestine assumed the status of a UN "non-member observer State."[FN. 12] This afforded it with the ability to accede to international treaties like the Rome Statute via an 'all States' formula. As a result, Palestine deposited its instrument of accession with the Secretary-General on 2 January 2015 and became the 123rd State Party to the Rome Statute.[FN. 13] Therefore, the Court may exercise its jurisdiction on its territory pursuant to article 12(2)(a).
9. Alternatively, and to the extent that the Chamber deems it necessary to conduct a further and independent assessment of whether Palestine satisfies the normative criteria of statehood under international law, the Chamber could likewise conclude-for the strict purposes of the Statute only-that Palestine is a State under relevant principles and rules of international law. It is a fact that Palestine is restricted in the practical exercise of its authority over the entirety of the Occupied Palestinian Territory. However, this has to be assessed against the backdrop of the Palestinian people's right to self-determination (a norm of jus cogens nature, which is opposable erga omnes) which has long been recognised by the international community, and the exercise of which has been severely impaired by, inter alia, the imposition of certain unlawful measures (including the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem). Although the situation in Palestine is unique and therefore not comparable to other situations, this approach to assessing the criteria of statehood comports with international practice.
10. The Prosecution does not purport to explain or cover in this request the entirety of issues potentially relevant to the current circumstances in Palestine, including all of the possible causes for the limitations of Palestinian authority. Nor does the Prosecution imply that one party bears sole responsibility for the existing situation. The Court cannot and should not attempt to identify all the contributing factors. This is not necessary for the present determination and, respectfully, goes beyond this Court's competence. Moreover, the Statute makes clear that the Court's determination of individual criminal responsibility has no bearing on the responsibility of States under international law.[FN. 14] The Court is entitled however to rely, as a matter of fact, on the prevalent views of the international community with respect to the negative impact of certain State practices which have clearly and unequivocally been deemed contrary to international law.
11. The Prosecution submits that on the basis of either approach, the Court's territorial jurisdiction extends to the Occupied Palestinian Territory, namely the West Bank, including East Jerusalem, and Gaza. In so concluding, the Prosecution has relied on the views of the international community as expressed primarily by the UN General Assembly. These pronouncements are significant because the General Assembly bears "permanent responsibility" for the resolution of the question of Palestine[FN. 15] and is the UN's chief deliberative body where all member States have an equal vote.[FN. 16]
12. Significantly, in Resolution 67/19 which accorded Palestine "non-member observer State" status at the UN, the General Assembly "reaffirm[ed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967".[FN. 17] Further, the General Assembly has consistently stressed "the need for respect for and preservation of the territorial unity, contiguity and integrity of all the Occupied Palestinian Territory, including East Jerusalem".[FN. 18]
13. The Prosecution has also relied on views endorsed by other relevant international institutions which have long associated the Palestinian people's right to self-determination with the Occupied Palestinian Territory and have called for non-recognition of the illegal situation resulting from Israeli actions and practices in this territory.
14. The Security Council has made clear "that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations".[FN. 19] The Security Council has called upon all States "to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967".[FN. 20]
15. The International Court of Justice ("ICJ") has found that the construction of a barrier in the West Bank, which deviates from the Green Line, "severely impedes the exercise by the Palestinian people of its right to self-determination [.]"[FN. 21]
16. The Human Rights Council has "[s]tresse[d] the need for Israel, the occupying Power, to withdraw from the Palestinian territory occupied since 1967, including East Jerusalem, so as to enable the Palestinian people to exercise its universally recognized right to self-determination".[FN. 22]
17. Based on the above, and countless resolutions and pronouncements rendered by the international community over the years, the Prosecution considers that the Occupied Palestinian Territory is "the territory [where] the conduct in question occurred" within the terms of article 12(2)(a).[FN. 23] Accordingly, the Court has jurisdiction over alleged crimes committed in that territory. This determination is made strictly for the purposes of determining the Court's ability to exercise its jurisdiction and the scope of such jurisdiction, and is without prejudice to any final settlement, including land-swaps, potentially to be agreed upon by Israel and Palestine.
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94. On the basis of the available information, there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza.[FN. 341] In particular, there is a reasonable basis to believe that members of the Israel Defense Forces ("IDF") committed the war crimes of: intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focussed on (article 8(2)(b)(iv)); wilful killing and wilfully causing serious injury to body or health (articles 8(2)(a)(i) and 8(2)(a)(iii), or article 8(2)(c)(i)); and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions (article 8(2)(b)(xxiv), or 8(2)(e)(ii)). In addition, there is a reasonable basis to believe that members of Hamas and Palestinian armed groups ("PAGs") committed the war crimes of: intentionally directing attacks against civilians and civilian objects (articles 8(2)(b)(i)-(ii), or 8(2)(e)(i)); using protected persons as shields (article 8(2)(b)(xxiii)); wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv)) and wilful killing (articles 8(2)(a)(i), or 8(2)(c)(i)); and torture or inhuman treatment (article 8(2)(a)(ii), or 8(2)(c)(i)) and/or outrages upon personal dignity (articles 8(2)(b)(xxi), or 8(2)(c)(ii)). With respect to the admissibility of potential cases concerning crimes allegedly committed by members of the IDF, the Office notes that due to limited accessible information in relation to proceedings that have been undertaken and the existence of pending proceedings in relation to other allegations, the Office's admissibility assessment in terms of the scope and genuineness of relevant domestic proceedings remains ongoing at this stage and will need to be kept under review in the context of an investigation.[FN. 342] However, the Prosecution has concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs would currently be admissible pursuant to article 17(1)(a)-(d) of the Statute.
95. In addition, there is a reasonable basis to believe that in the context of Israel's occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014. The Prosecution has further concluded that the potential case(s) that would likely arise from an investigation of these alleged crimes would be admissible pursuant to article 17(1)(a)-(d) of the Statute.
96. The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others..."