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By Giulia Miraglia

In the wake of the Israel-Gaza 2008-2009 armed conflict, the International Criminal Court (ICC) has faced a major challenge to define its degree of judicial independence and legitimacy. The ICC needed to decide whether to confirm the existence of the Palestinian state and how to treat international crimes committed in Palestinian territories.

The Rome Statute adopted on 17 July 1998 and entered into force in July 2002, established the ICC. The Court currently has 123 member-states, 43 of which have not signed or become parties to the Rome Statute. It has a distinct character compared to the previous International Criminal Tribunals as the ones for the former Yugoslavia (ICTY) and Rwanda (ICTR). To avoid the possibility that the ICC could not obtain jurisdiction over international crimes, Article 12 (3) of the Rome Statute provides a solution. The ICC will have jurisdiction to prosecute the individual of any states, including non-state parties, when these crimes within the court’s subject-matter jurisdiction are committed on the territory of a state party or a state that allows the Court to have jurisdiction over the cases (Art.12, 2). The ICC simultaneously boosts for state cooperation during investigations and prosecutions. Not only must states parties cooperate and provide evidence useful for the proceedings, but also states not party to the Statute may be invited to assist the case’s development. The Court shall have the power to exercise its jurisdiction over persons for the most serious crimes of international matter, and shall be complementary to national criminal jurisdiction (Article 1 of the Rome Statute). The crimes within ICC’s jurisdiction are the crime of genocide (Art. 6), crimes against humanity (Art.7), war crimes (Art.8) and the crime of aggression (Art.9).

The issue concerns war crimes committed during armed conflict between Israel and Palestinian combatants in the Gaza Strip. Despite having signed the Rome Statute, the State of Israel withdrew its signature in 2002 using Article 127 of the Statute. In December 2008, Israel launched a military campaign in the Gaza Strip named “Operation Cast Lead” that aimed at blocking Hamas attacks on Southern Israel and targeted Hamas’ members, police force and infrastructure. Senior UN officials and human rights groups demanded for an international war crimes investigation in Gaza for indiscriminate violence and use of Palestinians as “human shields by soldiers”. The Israeli military were accused of:

·  using powerful shells in civilian areas causing large numbers of casualties

·  Holding families as human shields

·  Using phosphorus bombs

·  Attacking medical facilities

·  Killing police who had no military role

In November 2012 at the General Assembly’s 67th session, 138 countries voted for a resolution accepting Palestine as a non-member observer state of the United Nations (UN). This permitted Palestine to join international organizations and treaties. On 1 January 2015, the Government of Palestine submitted a declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory including, east Jerusalem, since June 13, 2014”. Since then, the Government of Palestine acceded to the Rome Statute that entered into force on 1 April 2015.

Preliminary examination

On 16 January 2015, the Prosecutor, in accordance with Regulation 25(1)(c) of the Office of the Prosecutor (OTP), opened a preliminary examination into the situation in Palestine to establish whether there were legal basis and criteria necessary to start investigation and prosecution. Under Article 53(1) of the Rome Statute, the prosecutor shall initiate an investigation once considered issues of jurisdiction, admissibility and the interests of justice in making this determination.

In May 2018, the ICC ProsecutorMs Fatou Bensouda received a referral from the Government of Palestine requesting the prosecutor to investigate past, ongoing and future crimes within the Court’s jurisdiction. According to the Palestinianreferral, since the beginning of preliminary investigations in 2015, Israel has continued unabated to commit crimes within the jurisdiction of the Court. The “unlawful occupation of the territory of the State of Palestine and the maintenance of settlements by Israel in Occupied Palestinian Territory (OPT)” (General Considerationspoint 3) allowed the enactment of a multi-layered system of violence and violation of fundamental rights on discriminatory ground. The Government of Palestine accused Israeli occupation forces of committing crimes involving the forcible transfer of Palestinians, the destruction of private and public properties, the torture and inhumane treatment of Palestinians, and the persecution and the kill of civilians.

In parallel, the Israeli government guaranteed complete impunity to its leadership, occupying forces and other Israeli citizens responsible for these crimes.

On 20 December 2019, the ICC Prosecutor Fatou Bensouda stated that, after considering all reliable information available to her office, the preliminary examination meets all statutory criteria required for opening the investigation. Israeli officials erupted in anger against the prosecutor and the prime Minister of Israel Benjamin Netanyahu  said that Ms Bensouda's action turned the ICC into a political tool in order to delegitimize the State of Israel.

However, the prosecutor requested from the Pre-Trial Chamber I a jurisdictional ruling on the scope of territorial jurisdiction of the ICC in Palestine. She had to argue why the investigations should be opened and she asked confirmation of correctness of interpretation to the Pre-Trial Chamber over the “territory” issue.

The State of Israel claimed that the ICC did not have territorial jurisdiction because Palestine cannot be considered a state because it lacked effective control over these territories. In March 2020, the Hague Prosecutor argued that the ICC must treat Palestine as a “State” for the purposes of jurisdiction because state parties to the Rome Statute considered it as a state. According to Ms Bensouda, it is not a duty of judges to consider whether Palestine is a State Party.

In February 2020, the Pre-trial Chamber invited amici curiae, legal representatives of victims to submit points, information and expertise. Amicus curiae procedure is not unknown to the ICC. Seven countries, the Organization of Islamic Cooperation (OIC), the League of Arab States and other 34 applicants, including scholars from academia and NGOs, became part of Amici Curiae -friends of the Court. Most of the States -Czech Republic, Germany, Austria, Hungary- argued that Palestine is not a State, and the ICC shall not have jurisdiction over these crimes due to the condition sine qua non. The other part of the amici curiae, formed by Palestine, the League of Arab States, NGOs, the OIC and scholars, argued that the ICC has the jurisdiction. Following this, the Pre-Trial Chamber of the ICC invited both Palestine and Israel to submit more information and responses no later than the end of June 2020. 

It has been eleven months since the ICC Prosecutor concluded her preliminary examination into the situation in the State of Palestine by requesting the Pre-Trial Chamber confirmation, and the Chamber decision is still pending.

Giulia is a political writer for La Tonique. You can follow Giulia on Twitter ⁦@gm_miraglia⁩.