On June 25, 2015, the Prosecutor of the International Criminal Court (ICC), Ms. Fatou Bensouda, met with the Palestinian foreign minister, Riad al-Malki, on the cases Palestine wishes to refer under the Rome Statute.
Palestinian Foreign Minister Riad al-Malki leaves the ICC at the Hague ©Reuters
Palestine, which joined the ICC on April 1, 2015, delivered files to the ICC Prosecutor on two sets of facts that would allegedly amount to war crimes committed by Israel. The first set would inform allegations of civilian killings and wrongful treatment of prisoners throughout the occupied territories, and more especially 2014 military operations Brother’s Keeper and Protective Edge. The second set of information cover Israel’s illegal settlements in the West Bank and East Jerusalem. The question of whether illegal settlements can amount to war crimes has not yet come before the ICC, but Ms. Bensouda said “The settlements will definitely be part of this examination phase.” While the information delivered by Palestine is not considered criminal evidence, they will inform the Prosecutor’s examination of the situation that began in January 2015 and her decision to possibly open a criminal investigation.
By Dr Miša Zgonec-Rožej
Palestinian President Mahmoud Abbas signs 20 international treaties, including the Rome Statute of the ICC, in Ramallah on 31 December 2014
On 6 January, the UN secretary-general confirmed that Palestine will accede to the Rome Statute of the International Criminal Court (ICC). Palestine’s accession has, unsurprisingly, prompted certain countries – including Israel, the US and a number of European states – to warn of potentially grave consequences. It is certainly a risky venture for Palestine given political tensions in the region, but it may deter future war crimes in the Israeli-Palestinian conflict, and marks another step towards statehood for Palestine.
Palestine’s accession will confer jurisdiction on the Court in relation to crimes committed within the territory claimed by Palestine. Although Israel has not ratified the Rome Statute, crimes allegedly committed by Israeli nationals in the territory claimed by Palestine will fall within the ICC’s jurisdiction. The ICC will also have jurisdiction over crimes committed by Palestinians outside the territory claimed by Palestine, including in Israel. Crimes falling within the ICC jurisdiction are limited to genocide, war crimes and crimes against humanity. But the accession can only confer on the Court jurisdiction over crimes committed after the Rome Statute enters into force for Palestine on 1 April. And until the borders of Palestinian territory are clearly defined and the status of occupied territories resolved, the ICC’s territorial jurisdiction will remain contentious.
In order to bring past crimes within the ICC’s jurisdiction, Palestine, on 1 January, lodged a declaration under Article 12(3) of the Rome Statute, retroactively accepting the Court’s jurisdiction. Although in principle such declarations can extend to crimes committed after 1 July 2002, when the Rome Statute entered into force, Palestine decided to limit it to crimes committed since 13 June 2014. The declaration, if accepted by the ICC, would therefore bring into the ICC’s jurisdiction last summer’s conflict in Gaza but not earlier military operations. Continue reading
Palestinian Foreign Minister Riad al-Malki leaves the ICC at the Hague ©Reuters
UN Secretary-General Ban Ki-moon has officially announced that Palestine will join the International Criminal Court (ICC) on April 1, 2015. The Palestinians submitted the documents ratifying the Rome Statute last Friday, January 2.
In addition, the Palestinian government lodged a declaration to the ICC Registrar, Herman von Hebel, under article 12(3) of the Rome Statute stating Palestine’s acceptance of the jurisdiction of the ICC since 13 June 2014. The jurisdiction ratione temporis of the ICC over crimes committed in Palestine could therefore cover both Operations Brother’s Keeper and Protective Edge.
To date, 122 countries have ratified the Rome Statute, with the notable exceptions of the United States and Israel.
Last Wednesday, Palestinian leader Mahmoud Abbas signed the Rome Statute to join the International Criminal Court (ICC).
He signed the Rome Statute, the ICC’s founding treaty, at a Ramallah meeting.
However, the International Criminal Court will only acquire jurisdiction over war crimes, crimes against humanity and acts of genocide on Palestinian territory when Palestine will have ratified the Rome Statute.
The signature follows the rejection of a UN Security Council resolution demanding an end to the Israeli occupation of the Palestinian territories by late 2017.
Eight members of the Security Council voted for that resolution, while it needed the support of at least nine members in order to pass.
“We want to complain. There’s aggression against us, against our land ” […] “The Security Council disappointed us”, Mr Abbas said.
The Palestinian Authority sought to accept the jurisdiction of the ICC back in May 2009 by way of an Article 12(3) declaration. In April 2012, the Office of the Prosecutor determined that since Palestine was an “observer entity,” it could not ratify the Rome Statute.
In November 2012, the UN upgraded Palestine’s membership status to that of a non-observer member state. Writing in an op-ed for The Guardian in August 2014, Prosecutor Fatou Bensouda stated that the effect of this upgraded status was such that Palestine could now join the Rome Statute.
The International Criminal Court
Yesterday, at an open meeting of the Assembly of States Parties (ASP) of the International Criminal Court (ICC) held in New York, the ASP accepted Palestine as a “non-state party observer.” This is the same status as that awarded to other non-signatory states to the Rome Statute, such as the United States or Russia.
Rule 94 of the Rules of Procedure states that at the beginning of every session of the Assembly, the President, subject to the adoption of the Assembly, may invite states which are not parties to the Rome Statute and which have not signed the final act nor the statute to attend the assembly proceedings.
Al Jazeera’s Diplomatic Editor James Bays identified the acceptance as
“symbolic but adds to the international momentum for Palestinian statehood and has legal repercussions. If Palestine now applies to join the Rome Statute, it will be much harder to reject them. The acceptance clearly brings war-crimes trials against Israelis one step closer.”
The President of the ASP, however, warned that the effect of the acceptance was limited:
“The Assembly takes the following decisions on procedure independently and without prejudice to decisions taken for other purposes, including the decisions of any other organization or any organ of the court concerning legal matters before it.”
The Palestinian Authority sought to accept the jurisdiction of the ICC back in May 2009 by way of an Article 12(3) declaration. In April 2012, the Office of the Prosecutor determined that since Palestine was an “observer entity,” it could not ratify the Rome Statute. In November 2012, the UN upgraded Palestine’s membership status to that of a non-observer member state. Writing in an op-ed for The Guardian in August 2014, Prosecutor Fatou Bensouda stated that the effect of this upgraded status was such that Palestine could now join the Rome Statute.
To date, the Palestinian Authority has not taken any further steps to ratify the Rome Statute.
By Dr Miša Zgonec-Rožej*
The decision to not investigate alleged war crimes during the raid on a Gaza-bound humanitarian flotilla in 2010 comes as no surprise, but it highlights the uncertain legal situation surrounding the Rome Statute’s applicability to the Israeli-Palestinian situation.
Passengers look down from the Turkish passenger ship Mavi Marmara as the Israeli navy intercepts boats bound for Gaza on 31 May 2010 – ©Getty Images
On 5 November, the International Criminal Court decided not to proceed with an investigation into alleged war crimes committed by Israeli soldiers during their raid on a Gaza-bound humanitarian flotilla in 2010. Despite acknowledging a reasonable basis to believe that war crimes were committed on one of the vessels, the Mavi Marmara, the prosecutor concluded that the potential case was not of sufficient gravity to justify further action by the ICC. The decision comes as no surprise.
Due to its limited resources, the ICC was never intended to deal with all crimes falling within its jurisdiction. The assessment as to which case meets the threshold of sufficient gravity is based on the scale, nature, manner of commission of the crimes and their impact. Given that the court lacks jurisdiction to investigate any other alleged crimes committed in the context of the Israel-Hamas conflict or in the broader context of the Israeli-Palestinian conflict, the prosecutor concluded that the requisite threshold was not met because the potential case(s) would be limited to an event encompassing a small number of victims of the alleged war crimes. Continue reading
The Mavi Marmara was the lead ship in a eight-vessel humanitarian convoy heading for Gaza.
The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has decided to close her preliminary inquiry into the 31 May 2010 Israeli raid on a humanitarian flotilla bound for Gaza that killed nine Turkish activists, according to a statement today.
The case was referred to her office on 14 May 2013 by the Union of the Comoros, which is an ICC State Party. One of the ships in the flotilla, the Mavi Marmara, was registered in the Comoros.
On the same day, the Prosecutor announced that her Office had opened a preliminary examination of the referred situation.
“Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court (…) were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla” on 31 May 2010,” said the Prosecutor.
However, “after carefully assessing all relevant considerations”, she concluded that the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC. Continue reading
The International Criminal Court
Following Israel’s offensive in Gaza, Amnesty International is urging the UN Security Council, the Palestinian Authority and Israel to do everything within their power to enable the International Criminal Court (ICC) to bring to justice those responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.
“An International Criminal Court investigation is crucial to end the pervasive culture of impunity. All sides must push for the Court to investigate such crimes in order to halt the vicious cycle of violations and injustice once and for all”, says Amnesty.
Amnesty asks the Security Council to take immediate steps to refer the situation in Israel and the Occupied Palestinian Territories to the Prosecutor of the ICC. For Amnesty, “the UN Security Council must not stand by yet again and bear witness to mounting atrocities. It must seize this moment to act decisively for justice.”
Amnesty International is also calling on both the Palestinian and Israeli authorities to support a Security Council referral, and take other measures that would allow the ICC to step in and ensure their co-operation with the Court. Continue reading