Putting the International Criminal Court’s Palestine Investigation into Context

[Pearce Clancy is a PhD candidate at the Irish Centre for Human Rights at the National University of Ireland, Galway, and a legal Researcher with the Palestinian human rights organisation Al-Haq. Rania Muhareb is a PhD candidate at the Irish Centre for Human Rights, a consultant with Al-Haq, and a Policy Member of Al-Shabaka, the Palestinian Policy Network.]

Wall severing Palestinian agricultural lands east of Qalqilya in the occupied West Bank, taken on 11 July 2017. Photo credit: Rania Muhareb.

The Prosecutor of the International Criminal Court has finally announced the opening of an investigation into the Situation in Palestine. This long-awaited decision follows five years of preliminary examination and comes over a year since the Prosecutor’s request for a ruling on the Court’s territorial jurisdiction in Palestine, which encompasses the Gaza Strip and West Bank, including East Jerusalem, as the ICC’s Pre-Trial Chamber I decided in February.

Palestinians have sought justice at the ICC for over a decade—a history on which the Prosecutor reflects in her statement dated 3 March. The Prosecutor recalls, notably, that she declined to initiate an investigation into the Israeli military attack on the Gaza Freedom Flotilla on 31 May 2010, seemingly in order to initiate the broader investigation into the Situation in Palestine. This is despite the fact that the incident led to the killing of ten individuals and the injury of 50 others, with the Prosecutor having recognised that there was a reasonable basis to believe that war crimes had been committed.

Nevertheless, the Prosecutor decided not to proceed on the basis that the gravity threshold had not been met, a conclusion contested by the ICC’s Pre-Trial Chamber I, spurring a long controversy over prosecutorial discretion and judicial overview. Whether one agrees with the Prosecutor or the Chamber, the decision not to initiate an investigation into the Mavi Marmara case exemplifies the fragmented and piecemeal manner in which Israeli impunity has been approached to date.

While welcoming the Prosecutor’s important decision to finally open an investigation into the Situation in Palestine in the face of immense political pressure, it is nonetheless crucial to recall the broader context within which the ICC operates, both in terms of the Court’s own internal dynamics and limitations, and in light of past international failures to hold Israeli perpetrators to account.

Contextualising the Palestine Investigation

On the whole, discussions thus far of the ICC’s recent movements in the Situation in Palestine have taken place in a relative vacuum, divorced from previous and other ongoing attempts to pursue justice and accountability for Palestinians. Over the past two decades, the United Nations (UN) has established no less than ten investigatory mechanisms into serious violations of international human rights and humanitarian law in Palestine, including suspected international crimes. These initiatives all failed to meaningfully challenge Israel’s pervasive culture of impunity and were either abandoned due to Israel’s refusal to cooperate and to grant investigators access to the occupied Palestinian territory, or had their recommendations otherwise unimplemented and effectively disregarded by the international community (see civil society submission on accountability, para 67-75).

Similarly, while the International Court of Justice in its 2004 Advisory Opinion on the construction of a wall in the occupied Palestinian territory made numerous significant determinations—not least that the construction and maintenance of Israeli settlements in the occupied West Bank, including East Jerusalem, constitute the grave breach of population transfer, prohibited under Article 49(6) of the Fourth Geneva Convention—the Opinion ultimately spurred little to no meaningful action by third states. The international community has continued to trade in settlement products, for example and as such contributes to the maintenance of the illegal situation created by Israel, facilitating the recurrence of violations against Palestinians.

Experiments with individual responsibility, both civil and criminal, have largely resulted in failure. Attempts to harness universal jurisdiction mechanisms to pursue accountability through judicial means have been, as noted by Azarova and Mariniello, “thwarted by political pressures and legislative amendments to ensure political vetting.” In particular, ongoing pressure from the United States has undermined the viability of domestic courts as vehicles for international justice for Palestinians. It would appear that the US intends to continue to shield Israeli perpetrators from accountability, as evidenced by continued US sanctions on key members of ICC staff, including the Prosecutor, through the widely-condemned Executive Order 13928.

This is the landscape now faced by the ICC and the Office of the Prosecutor—one of ambivalence at best, and intentional obstruction by powerful states at worst. This reality was perhaps best put by the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor Michael Lynk, when he noted in his October 2019 report to the General Assembly that “An international community that took seriously its legal responsibilities to challenge and end internationally wrongful acts would have concluded long ago that Israel, the occupying Power, was not sincere about seeking to end the occupation.”

Limitations

Notwithstanding the political landscape faced by the ICC, it is moreover important to recognise that the Court has numerous limitations built into its very framework. The colonial dispossession, displacement, and domination of the Palestinian people far exceed the territorial confines of the Gaza Strip and West Bank, including East Jerusalem, and yet the ICC may only investigate international crimes committed in that territorial unit.

Due to the terms of the State of Palestine’s accession to the Rome Statute, the Court’s temporal jurisdiction is set at 13 June 2014, a time frame which—while covering notable and largescale campaigns of atrocities such as ‘Operation Protective Edge’ on the Gaza Strip in 2014 and the systematic suppression of Gaza’s Great March of Return demonstrations in 2018-2019—encompasses only a fraction of the decades-long denial of the individual and collective rights of the Palestinian people since the Nakba (‘catastrophe’) of 1948.

To date, no international investigation or UN mechanism has meaningfully addressed the plight of the Palestinian people as a whole, including Palestinians on both sides of the Green Line and Palestinian refugees and exiles denied their right of return. While the ICC’s jurisdiction in Palestine is limited, it can go some way in challenging the fragmentation of the Palestinian people, including by attempting to investigate and prosecute the continued denial of the right of return of Palestinians.

Notably, concerned with the Situation in Bangladesh/Myanmar, the same Pre-Trial Chamber I as in the Situation in Palestine, recognised in September 2018 that the denial of the right of return of the Rohingya people may constitute a crime against humanity under Articles 7(1)(h) and 7(1)(k) of the Rome Statute. Citing the right to enter one’s country under international human rights law and the 1973 Apartheid Convention, the Chamber highlighted that

“the anguish of persons uprooted from their own homes and forced to leave their country is deepened. It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions” (see here, para 77).

However, it remains to be seen whether the Office of the Prosecutor will entertain this central question, in the face of vehement objection by Israel and the US despite universal recognition of the Palestinian right of return.

Crucially, the domination of the Palestinian people is a prolonged and systemic enterprise, whereas the ICC is designed to pursue justice at an individual level. The ICC can and should rule on whether individual perpetrators have committed Rome Statute crimes, for example in relation to the construction and maintenance of Israeli settlements and the indiscriminate targeting of civilians—two focuses for investigation already identified by the Prosecutor. Yet, the Court’s mandate is limited in terms of addressing root causes, such as Israel’s prolonged occupation, the closure of Gaza, and the continued denial of the right of the Palestinian people to self-determination, the continuation of which facilitates the commission of Rome Statute crimes.

Despite these limitations, the Court does have jurisdiction over the crime against humanity of apartheid and should investigate Israel’s maintenance of an institutionalised regime of systematic racial domination and oppression, allegations of which the Office of the Prosecutor had already acknowledged receipt in 2017 (see here, para 63). In doing so, the ICC must take into consideration the broader context of Israeli fragmentation of the Palestinian people, including by examining crimes which cross the Green Line, such as the illegal transfer of Palestinian prisoners from the occupied territory to detention facilities in Israel, where detainees suffer from routine torture and other forms of ill-treatment.

Significance

Palestinian victims have long sought meaningful accountability for ongoing crimes committed against them. Representatives of Palestinian victims as well as Palestinian human rights organisations have played a central role thus far in engaging with the ICC process. The Court’s outreach to Palestinian victims is a positive beginning, which must continue.

For many Palestinians, the ICC has come to represent an avenue of last resort in the pursuit of justice. The significance of an ICC investigation lies in its ability to challenge decades of Israeli impunity, within which the institutionalised oppression of Palestinians is deeply embedded. The ICC has the power to finally prosecute perpetrators of serious crimes committed in Palestine. It therefore provides an important avenue to pursue the implementation of the recommendations for accountability issued by the latest UN investigatory bodies on Palestine.

The UN Commissions of Inquiry on the 2014 Gaza Conflict and the 2018 Great March of Return demonstrations in the Gaza Strip, which were mandated to “identify those responsible”, compiled dossiers on alleged perpetrators and recommended that the Office of the High Commissioner for Human Rights make these files available to the ICC. The ICC’s investigation into the Situation in Palestine must now build on the findings of these mechanisms.

Finally, as important as the ICC process is to challenge Israeli impunity, it is not sufficient on its own and must be pursued alongside other accountability avenues. The 2018 Commission of Inquiry stressed that states parties to the Rome Statute and/or the Fourth Geneva Convention have a duty to exercise criminal jurisdiction (see here, para 128) and prosecute suspected perpetrators of crimes committed in Palestine in their own courts or extradite them. Crucially, such universal jurisdiction mechanisms generally do not present the ICC’s temporal and geographic limitations and have been used in the past—albeit unsuccessfully—to challenge crimes committed against Palestinian refugees denied their right of return.

Conclusion

If the plight of the Palestinian people is to be meaningfully improved through international justice and accountability mechanisms, whether at the ICC or through universal jurisdiction, the root causes of Palestinian oppression must be addressed. Only treating symptoms of the wider displacement and dispossession of the Palestinian people would constitute little more than “temporary band-aids” at the expense of urgently needed structural change. Ultimately, international criminal justice—while essential to challenging Israeli impunity—must be supplemented by sanctions and other effective coercive measures by third states in an effort to end the illegal situation imposed on the Palestinian people and to prevent the commission of further crimes in Palestine.