Charlotte Silver Rights and Accountability
23 November 2016
Photo: A Palestinian man walks past houses damaged by Israeli air strikes and shelling in Khuzaa, in the southern Gaza Strip, on 3 August 2014. The International Criminal Court in The Hague is examining allegations of war crimes in Palestine, including during the war in Gaza. Ramadan El-Agha APA images
The prosecutor’s office at the International Criminal Court (ICC) in The Hague has just released a report on the status of its preliminary examinations into possible war crimes, including allegations against Israel.
Palestine is one of 10 situations the court is currently examining. A preliminary examination is the first step in the court’s process to decide whether or not to open a full investigation that could lead to indictments and prosecutions.
All parties – the Israeli government and Palestinian armed groups – have been accused of war crimes and any act committed after 13 June 2014 is subject for review. This includes Israel’s summer 2014 assault on Gaza that left more than 2,200 Palestinians dead.
This is the ICC prosecutor’s second report since it opened the preliminary examination into the Palestine situation in January 2015.
It comes as the court is facing its most serious crisis of credibility and confidence since it was founded in 1998. In recent weeks, South Africa, Gambia and Burundi announced their intention to withdraw from the court. African member states have long accused the court of bias: the vast majority of its investigations and cases involve African countries.
Considering that some preliminary examinations can last as long as 12 years before the ICC decides whether to open an investigation, the one related to Palestine is still relatively new.
The annual reports are the only official updates from the ICC on its cases, and they do not contain any suggestions on how the prosecutor’s office is leaning: they conservatively state facts and allegations.
However, changes from last year’s report are worth noting – they suggest that as the prosecutor’s office gathers facts, it is developing a fuller picture of events.
This year, the prosecutor reports that it has received a total of 86 communications, up from 66 last year, and says it is closely monitoring current developments in Palestine. The office has created a database of 3,000 alleged crimes and incidents that occurred in the 2014 war in Gaza to help it analyze patterns of attacks.
The Palestinian Authority is sending the court monthly reports about ongoing crimes.
Here are some of the notable changes in the ICC prosecutor’s 2016 report, since last year:
The prosecutor now states that “it may be argued” that Israel is the “occupying power” in Gaza. It did not use this terminology in last year’s report, but notes that this is “a position that the office has previously taken” in the separate preliminary examination it opened at the request of the Comoros into Israel’s 2010 attack on the Gaza flotilla. Israel has insisted that it ended the occupation of the Gaza Strip when it withdrew its settlers and soldiers from inside the territory in 2005.
The prosecutor now refers to the January 2006 Palestinian elections, in which Hamas defeated the Palestinian Authority’s Fatah, as the trigger to “periodic hostilities” between Israel and groups in Gaza, including Hamas. In 2015, the prosecutor suggested that Israel declared Gaza a “hostile territory” in “response to increasing rocket attacks.” The 2016 report makes no mention of Gaza as a “hostile territory,” a term coined by Israel to justify its military assaults on Gaza and to deny its responsibility for the territory as the occupying power under international law.
The prosecutor no longer refers to the June 2014 kidnapping and murder of three Israeli teenagers in the West Bank as the precursor to Israel’s offensive on Gaza the following month.
The prosecutor now stipulates that the United Nations Security Council and the International Court of Justice consider Israel’s annexation of East Jerusalem to be a violation of international law. Last year’s report mentioned Israel’s annexation of the city, but without noting that this move is viewed as illegitimate by international authorities.
This year’s report includes allegations that Palestinian groups used human shields by allegedly launching attacks in the vicinity of civilian areas, including hospitals, schools, hotels and religious buildings. The report states: “It has been alleged that Palestinian armed groups engaged in such conduct in order to shield their military operations and assets from attack.” In 2015, the prosecutor simply stated that Palestinian groups allegedly launched attacks from civilian buildings. Critics have warned that the logic of “human shields” can indemnify aggressors waging war in heavily populated urban centers. In their book The Human Right to Dominate, scholars Neve Gordon and Nicola Perugini document that the term “human shields” entered Israeli parlance around 2006, and has since been used as a “legal and ethical justification for military necessity” in Lebanon and Gaza.
The prosecutor provides more detail on the allegations against the Israeli military in Gaza. These include attacks on fleeing civilians, residential buildings, medical facilities, six schools run by the UN refugee agency UNRWA, as well as civilian infrastructure including water and sanitation installations, power plants, agricultural fields, mosques and educational institutions.
This year’s report expands on the Israeli government’s settlement activities in the occupied West Bank, including East Jerusalem. It states that in addition to expanding settlement infrastructure, the Israeli government applies a “discriminatory use of basic infrastructure and resources, such as water, soil, grazing lands and market.”
The prosecutor adds that according to official Israeli data, the Israeli government declared more than 15,000 acres of West Bank land as “state land.” Furthermore, between January and August 2016, Israeli authorities advanced plans for a total of 2,623 new settler housing units in West Bank, including East Jerusalem, including 756 retroactive approvals of unauthorized settlements. That is on top of the 591 buildings started in 2015 and 760 projects completed elsewhere in the West Bank.
This year’s report notes the escalation in violence between Palestinians and Israel since October 2015, including allegations of violent attacks by Palestinians and “unlawful killings and/or excessive use of force by Israeli forces against Palestinians.”
Human rights groups working with the prosecutor on the preliminary examination, including Al-Haq and Al-Mezan Center for Human Rights, have been targeted with death threats and harassment in the last year.
The prosecutor acknowledges this in the latest report and reaffirms that the court is working with Dutch authorities to address the situation.