Palestine: ICC Should Open Formal Probe
Impartial Justice Needed as Occupation Enters 50th Year
(New York, June 5, 2016) – As the Israeli occupation of the West Bank and Gaza entered its 50th year, Human Rights Watch called today on the International Criminal Court (ICC) prosecutor to open a formal investigation into serious international crimes committed in Palestine by Israelis and Palestinians.
Given strong evidence that serious crimes have been committed in Palestine since 2014, including new population transfers into occupied territories, the ICC prosecutor, Fatou Bensouda, should undertake a formal probe consistent with the ICC’s Rome Statute, Human Rights Watch said. An ICC investigation is needed given the grave nature of many of the violations and the pervasive climate of impunity for those crimes.
“After nearly a half century of impunity, it’s time that those responsible for some of the gravest crimes, whether against Palestinians or Israelis, pay the price,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “The ICC prosecutor should move forward and investigate the crimes by all parties so that the victims can obtain a measure of justice that has long eluded them.”
Human Rights Watch issued its statement on the 49th anniversary of the start of the June 1967 (or Six Day) War that resulted in the occupation of the Palestinian territories.
The ICC treaty officially went into effect for Palestine on April 1, 2015, giving the court jurisdiction over serious crimes in violation of international law, including war crimes and crimes against humanity committed on or from Palestinian territory. On January 1, 2015, the Palestinian government gave the court a mandate back to June 13, 2014, to cover the 2014 conflict in Gaza.
Based on her policy for responding to declarations accepting the court’s jurisdiction, Bensouda opened a preliminary examination into the situation in Palestine on January 16, 2015. During the preliminary examination phase, the prosecutor determines whether the criteria have been met to merit pursuing a formal investigation on the basis of information that is either publicly available or submitted to her office. Human Rights Watch wrote to Bensouda in November 2015, to share materials from its own research that are relevant to her inquiry.
The prosecutor’s current preliminary inquiry includes analyzing whether crimes specified in the Rome Statute, the ICC’s founding document, have been committed; whether those crimes are sufficiently grave to merit the court’s attention; and whether national authorities are genuinely carrying out credible investigations and, if appropriate, prosecutions of the cases under ICC consideration, since the ICC is a court of last resort. The prosecutor’s 2015 preliminary examinations report, issued on November 12, said that her office was assessing whether there was a reasonable basis to believe that ICC crimes have been or are being committed in or from Palestine.
During the 2014 hostilities in Gaza, Human Rights Watch, as well as a United Nations Commission of Inquiry and local and international human rights organizations, documented unlawful attacks by the Israeli military and Palestinian armed groups, including apparent war crimes. Fighting killed more than 1,500 civilians in the Gaza Strip, damaged hospitals and other civilian infrastructure, and destroyed the homes of more than 100,000 Palestinians. Palestinian armed groups launched rockets and fired mortars toward Israeli population centers, killing five civilians and causing thousands to temporarily leave their homes. Palestinian armed groups also endangered Palestinian civilians by firing from populated areas and hiding weapons in UN schools, according to UNRWA.
The UN Commission of Inquiry found substantial information suggesting that Israeli forces and Palestinian armed groups had committed serious violations of the laws of war and that such violations appeared to be part of policy decisions by the leadership on both sides.
The alleged crimes at issue are not limited to the 2014 Gaza fighting, Human Rights Watch said. The ICC statute also classifies as a war crime an occupying power’s transfer of its own civilians “directly or indirectly” into territory it occupies. The transfer of inhabitants of the occupied territory from their homes to other places within or outside this territory is also a war crime.
Since it occupied the West Bank in 1967, Israel has actively facilitated the movement of its citizens into settlements there. Successive Israeli governments have enabled these transfers, even though settlements in occupied territories are unlawful under international humanitarian law and are integral to Israeli policies that dispossess, discriminate against, and violate the human rights of Palestinians, Human Rights Watch said. Israel’s Supreme Court, which has jurisdiction over the Israeli military’s activities in the West Bank, has declined to rule on the legality of transferring Israeli civilians into the West Bank, saying it is primarily a political issue.
A January report by the UN secretary-general on Israeli settlements said that the “presence and continued development of Israeli settlements lie at the root of a broad spectrum of human rights violations in the West Bank, including East Jerusalem.” All of these policies have continued since June 13, 2014, including new transfers of thousands of Israeli citizens into the West Bank.
Without a request by either an ICC member country or the UN Security Council, the ICC prosecutor can seek to open an investigation on her own initiative, but she would need the authorization of an ICC pretrial chamber. Judges would rely on the materials submitted by the prosecution to determine whether there is a “reasonable basis” to proceed, taking into account the court’s requirements concerning the gravity of the crimes and the inability or unwillingness of national courts to prosecute. The prosecutor’s office has acted on its own motion in the cases of Kenya, Côte d’Ivoire, and Georgia.
On June 25, 2015, the Palestinian foreign affairs minister, Riad al-Maliki, submitted information to Bensouda’s office to assist with her inquiry. Palestine submitted further information on August 3 and October 30. Staff from the prosecutor’s office also met with Palestinian officials on March 19, 2016, in Amman, Jordan, news reports said.
While Israel announced in July that it would open a dialogue with Bensouda over her preliminary examination, a senior Israeli official said that Israel intended to make clear its position that the ICC did not have any authority over the situation in the West Bank and Gaza. Israel signed but has not ratified the Rome Statute, and in 2002, it announced that it did not intend to become a member of the court. Israel is thus not under a legal obligation to cooperate with the court.
A number of Palestinian nongovernmental organizations have also submitted information for the ICC prosecutor’s consideration, including Al Mezan Centre for Human Rights, Al-Haq, Aldameer, and the Palestinian Centre for Human Rights. In recent months, an Al-Haq staff member based in The Hague received death threats that the group believed were linked to its ICC advocacy.
The ICC prosecutor has indicated that there is no specific timeline for her preliminary examination. If the prosecutor pursues a Palestine investigation, it would be the court’s 11th situation under investigation. Bensouda is also consideringwhether investigations are merited in Afghanistan, Colombia, and Ukraine, among others.
The ICC is mainly funded by contributions from member countries. Its financing is under pressure due to the austerity budgets of many governments, and the prosecution is struggling to carry out several much-needed investigations on its docket, including in Côte d’Ivoire and Libya. The ICC’s ability to meet the ever-increasing demand for international justice is inextricably linked to having necessary resources, Human Rights Watch said.
“The ICC prosecutor’s crowded docket should not deter her from moving forward on the Palestine situation and chipping away at the wall of impunity,” Whitson said. “ICC member countries should be stepping up with support for the court to ensure that all the preliminary examinations under way get the proper attention they deserve.”
For details of settlement construction and of the Commission of Inquiry findings, please see below.
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Recent Settlement Construction
More than half a million Israeli settlers live in 237 settlements in the West Bank, including in East Jerusalem. In 2014, the population of Israeli settlers in the West Bank, not including East Jerusalem, grew by about 14,000, according to the Israeli Central Bureau of Statistics. Israeli demolitions of Palestinian homes and other buildings in the West Bank displaced 1,177 Palestinians in 2014, and 757 Palestinians in 2015, according to the UN Office for the Coordination of Humanitarian Affairs. The United Kingdom, France, and the European Union have recently condemned Israel’s continued settlement activity as illegal under international law.
According to Israel’s Central Bureau of Statistics, in 2015, construction began on 1,913 new housing units in settlements in the West Bank, not including East Jerusalem, and workers completed construction of 2,033 housing units there, intended for Israeli settlers. In 2014, construction began on 1,516 new housing units in West Bank settlements, and workers completed construction of 1,615 units. The Bureau of Statistics does not aggregate construction data by month, and Human Rights Watch could not determine how much of the 2014 construction took place after June 13, the date when the ICC mandate begins.
In addition to the actual construction, in 2015, the Israeli government published tenders for 1,143 new housing units in Israeli settlements in the West Bank, including East Jerusalem, according to the Israeli nongovernmental group Peace Now. Also according to Peace Now, in 2015, the Israeli government approved regional building plans to accommodate thousands of additional settlers in the West Bank.
Policies of Deliberate and Indiscriminate Attacks
The UN Commission of Inquiry reported that intentional and indiscriminate attacks against Israeli civilians by Palestinian armed groups appeared to be part of a deliberate policy. The commission noted that, “statements made by Palestinian armed groups with regard to the firing of rockets indicate intent to direct those attacks against civilians.” Human Rights Watch has also documented rockets and mortars that Palestinian armed groups fired toward Israeli population centers. The unguided rockets launched by Palestinian armed groups from Gaza are inherently indiscriminate and incapable of being aimed at possible military targets in or near Israeli population centers.
The commission also reported the large number of Israeli strikes on apparent civilian objects such as homes and other residential buildings, noting “that these strikes may have constituted military tactics reflective of a broader policy, approved at least tacitly by decision-makers at the highest levels of the Government of Israel.”
In particular, the consistency of behavior among different units of the Israeli military, in different parts of the Gaza Strip, indicated to the commission that the conduct observed of Israeli troops was planned and approved by the military leadership. For example, the commission found that the use of precision-guided missiles against residential buildings in 15 examined cases indicated that the destruction was deliberate and planned.
The commission also noted that Israeli authorities did not provide information indicating activity that would have made these buildings legitimate military targets. The Israeli military stated instead that it warned the civilian population, but the commission found that in many cases, the warnings were inadequate, and that Israeli troops treated people in areas where warnings had been issued as legitimate targets, even when escape was difficult or impossible.
The commission further found that widespread destruction of civilian property, failure to protect civilians, and the use of imprecise or inaccurate weapons in densely populated areas also appeared to be part of patterns of conduct authorized by senior Israeli officials. It noted that even after the deadly impact on civilians of destroying residential buildings became apparent to Israeli military leaders during the hostilities, there did not appear to be a re-assessment of the practice.
Similarly, the fact that the Israeli military did not modify its practice of firing heavy artillery in densely populated areas, even after the extent of civilian death and injury became apparent in real time, as daily news reports provided casualty numbers, suggested to the commission that Israel’s policy on artillery use in populated areas did not comply with international humanitarian law prohibitions on indiscriminate attacks.
Impunity and Lack of Accountability
Neither Israel nor Palestine has made meaningful progress in providing justice for serious laws-of-war violations during the 2014 conflict. The commission noted the track record of impunity by all sides. The history of accountability for violations by both Israel and Palestinian forces is poor, Human Rights Watch said.
Israeli military inquiries into the 2014 Gaza hostilities are ongoing. Thus far, two soldiers have been charged with looting about US$600 from a Palestinian home and a third with covering it up. In January 2015, Israel also announced an investigation by its state comptroller, but no report is yet available. In May 2015, Israeli authorities published a report on the “factual and legal aspects” of the 2014 Gaza conflict, including a summary of military inquiries to date. However, the Commission of Inquiry expressed its concern about “a number of procedural, structural and substantive shortcomings, which continue to compromise Israel’s ability to adequately fulfil its duty to investigate.” On May 25, 2016, an Israeli human rights organization, B’Tselem, announced that after 25 years of referring to the IDF reports of alleged human rights and humanitarian law abuses by its personnel and urging the IDF to investigate them, it was halting such referrals, describing the IDF’s apparatus for investigating abuses as a “whitewash mechanism.”
The Palestinian Authority government in the West Bank and Hamas in Gaza are not known to have carried out any investigations of alleged war crimes committed by Palestinian armed groups, including the deliberate or indiscriminate firing on civilians in Israel.
Israel and Hamas have acted to obstruct external investigations. Neither Israel nor Hamas responded to questions posed by the Commission of Inquiry, and Israel refused to allow commission investigators to enter Israel, the West Bank, or Gaza. Israel does not allow international human rights investigators into Gaza and has repeatedly refused requests by Human Rights Watch staff to enter Gaza. The Hamas authorities have intimidated journalists and human rights workers seeking to document violations of human rights and international humanitarian law by Palestinian armed groups and have failed to protect them from attacks.