Palestinian appeal to ICC seen as last hope to ‘bring justice for the victims’ of Israeli violations
By Sheren Khalel*
Four Palestinian human rights organizations on Wednesday, September 20th submitted their fourth “substantive communication” to the prosecutor of the International Criminal Court. The 700-page evidence file submitted alleges that high-level Israeli civilian and military officials have committed “war crimes and crimes against humanity” in the occupied West Bank, including East Jerusalem.
Tahseer Alayyan, a spokesperson for the Ramallah-based independent Palestinian human rights NGO, al-Haq, told Mondoweiss that the NGOs believe the ICC is the “only remaining window” for Palestinians to “bring justice for the victims” of Israeli violations.
“We have tried several ways of fighting through universal jurisdiction and we have not succeeded because of political constrictions, so we believe that the ICC is very a important window for us to give hope to the victims and for the Palestinian people in general, as a way to bring about justice,” he said.
The four NGOs that made the complaint included al-Haq, as well as the Palestinian Centre for Human Rights, Al Mezan Center for Human Rights and the Gaza-based Al Dameer Association for Human rights.
The complaint made on Wednesday was the fourth file created by the four NGOs, with the first three files focused on alleged crimes in the Gaza Strip, while the latest file was the first made by the four groups on behalf of the people in the occupied West Bank and East Jerusalem.
In a press release published by al-Haq, the group’s director, Shawan Jabarin, stated that the latest file “provides a compelling and reasonable basis for the Prosecutor to open an investigation into crimes alleged to be committed against the Palestinian population.”
“Over the past fifty years Israel has subjected the Palestinian population to a belligerent occupation that deprives them of their fundamental human rights and subjects them to heinous crimes,” Jabarin said. “The communication to the International Criminal Court offers hope that anybody that commits crimes against Palestinians will be held to account. We are convinced that there can be no lasting and genuine peace without justice.”
The files sent through this week by the four NGOs is one of many files that have been sent to the ICC by various individuals and organizations since the Rome Statute was activated by the Palestinian government.
Their complaint specifically alleges that high-level Israeli civilian and military officials have subjected the Palestinian population the “crimes of persecution and apartheid.” It emphasises crimes committed by civilians or officials because the ICC prosecutes individuals, not states.
Wednesday’s complaint included 300 cases of Palestinians killed by Israeli forces since June 2014, with the file referring to the deaths as “wilful killing and murder.”
It also accused Israeli officials of implementing a “shoot-to-kill” policy in the occupied West Bank and East Jerusalem since 2015 — an accusation that has been long supported by Amnesty International and Israeli human rights group B’tSelem, among others.
In addition, al-Haq said the four human rights NGOs compiled proof that high-level Israeli officials are seeking to expand Israeli sovereignty and “ensure Israeli Jewish domination” over the demographics of the occupied Palestinian territory as a way to continue control both politically and on the ground.
The communication also accuses Israel of forcible transfer of the Palestinian population, considered “protected persons” under international law, and allegedly offers proof that Israeli authorities practice “implantation” of Israeli settlers in the areas the Palestinian population had been expelled from.
It also includes supporting material that shows Israeli violations in terms of “appropriation, destruction and pillaging” of Palestinian property.
These files of evidence, along with other files made by various groups and individuals, are all taken into consideration by the ICC during its Preliminary Examination.
The ICC Process
Files submitted by individuals or groups to the ICC are presented as a base of evidence alleging that a war crime or a crime against humanity was committed in a territory where the authority is a signatory to the ICC.
The Palestinian government became a signatory on January 1, 2015, with allowance for jurisdiction over its territory from June 13, 2014 and onwards, however Israel is not a signatory.
Because Israel is not a signatory in the ICC, any submissions made on behalf of Palestinians for alleged crimes committed, must have taken place in either the occupied West Bank, East Jerusalem, the Gaza Strip or other territories with ICC membership — not in areas internationally recognized as sovereign Israeli territory. In addition, only crimes committed in occupied Palestinian territory after June 13, 2014 are eligible for ICC investigation and potential prosecution.
The day after the Palestinian government became an ICC signatory, it activated the Rome Statute. The Rome Statute was created as the outcome of a long process from within the United Nations, where member states took into consideration the question of international criminal law.
After the Rome Statue was created, the ICC was born, and the court was established as an independent judicial body, separate from the UN.
When the Rome Statute was activated in Palestinian territory on January 2, 2015, a Preliminary Examination was opened by the court, which is the process these files are submitted to.
Preliminary Examination Status
The Preliminary Examination is a period in which the ICC Office of the Prosecutor is collecting evidence to establish whether or not there is enough proof that a crime of war, humanity or genocide has been committed in a member-territory of the ICC.
This process can take years, but under the Rome Statute, it is necessary to be complete before a formal investigation of crimes can begin.
During the Preliminary Examination, the Office of the Prosecution is trying to figure out whether there is enough evidence for a case to go forward.
The first phase is the initial assessment, in which the prosecution will collect forensic evidence, satellite images, witness testimonies, government documents and orders, cell-phone interceptions, computer and email records and more to establish whether or not there is a reasonable doubt that grave crimes have occurred.
The second phase is the prosecution looking at the jurisdiction of the crimes, which includes the time period, the physical territory and nature of the alleged crimes committed. If the submissions are outside the realm of jurisdiction for the ICC, then an investigation cannot be opened.
The case for Palestine is currently in the second phase. If the evidence submitted on behalf of Palestine passes through the second phase, the case will move forward in the third phase, which is admissibility.
The admissibility phase will look at whether there are already cases taking place in lower national courts, and analyze the situation to determine the scale, gravity and impact of the alleged crimes in order to determine whether the crimes are grave enough to fall under the Rome Statute.
If admissibility is established then the Office of the Prosecution will move into the fourth and last phase, which is to determine whether there is any reason opening a case would have a negative impact on the victims of the crimes or on the interest of justice.
If the prosecution goes through all four stages of criteria established by the Rome Statute and is convinced there is a case, the Office of the Prosecution is obliged under its legal duty to open an investigation.
It is important to point out that Preliminary Investigations can take many years. For example, Colombia has been under Preliminary Investigation in the ICC since June 2004 and the investigation is currently in Phase 3, with the prosecution having made its first visit to the country on the 10th of this month.
Palestine is currently one of ten countries under Preliminary Investigation.
In the most recent submission of evidence made by Palestinian human rights NGOs, the four organizations urged the ICC Prosecutor to complete the Preliminary Investigation and “urgently” open a full investigation into the situation in the occupied Palestinian territory.
“Palestinian human rights organizations believe that an investigation is a necessary step towards ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable,” the four groups said in a statement. “In doing so, it is imperative that the views of Palestinian victims are addressed in the interests of justice and reparations made. This is imperative to ensure that regional and international peace and security prevails.”
*Sheren Khalel is a freelance multimedia journalist who works out of Israel, Palestine and Jordan. She focuses on human rights, women’s issues and the Palestine/Israel conflict