Landmark Decision of the Pre-Trial Chamber of the International Criminal Court Welcomed by Human Rights Organizations
On Friday, 5 February 2021, over one year since the Office of the Prosecutor closed its preliminary examination into the Situation in the State of Palestine, the Pre-Trial Chamber of the International Criminal Court (ICC) issued its decision affirming that the Court has full territorial jurisdiction over the occupied Palestinian territory (oPt), i.e. the West Bank, including East Jerusalem, and the Gaza Strip. Al-Haq, Al Mezan Center for Human Rights, the Palestinian Centre for Human Right and Al Dameer Association for Supporting Prisoners and Human Rights (the Coalition) welcome this decision and stress that immediate action must be taken by the Prosecutor to ensure justice and accountability for Palestinian victims.
A critically important step towards ensuring the rule of law, the decision also marks an important step towards ending impunity, while ensuring the dignity of the Palestinian people who have been denied their right of self-determination and subjected to a criminal regime of aparthied, forced displacement, the transfer in of nationals of the Occupying Power, extensive destruction and appropriation of property, pillage, wilful killings and persecution – among other crimes all crimes within the jurisdiction of Court. Our Coalition notes that Israel’s subjugation of the protected Palestinian population through raids, arrests and mass incarceration, are inhumane acts of an institutionalised regime of racial domination and oppression, and amount to the crime of apartheid; it is imperative that the Prosecutor include acts of apartheid in the scope of her investigation.
The decision confirmed the State of Palestine, which joined the Court in 2015, as a full and legitimate State Party to the Rome Statute, and the entirety of the oPt as within the scope of territorial jurisdiction for investigation into international crimes. The Pre-Trial Chamber ruled that the Prosecutor has the full authority to investigate all war crimes and crimes against humanity that have taken place in the oPt and made clear that the Oslo Accords are not an obstacle to the Court investigating and prosecuting Israeli personnel, including the Israeli occupying forces and Israeli authorities in the occupied West Bank, whether they are in Area C or illegal Israeli settlements. Similarly, the Chamber affirmed the Court’s full jurisdiction over the Gaza Strip since June 2014, including the Israeli military’s attacks on unarmed protestors as part of the Great Return March.
Our Coalition continues to work tirelessly in pursuit of justice and accountability at the ICC, submitting six substantial communications and thousands of eyewitness files to the Office of the Prosecutor, along with an amicus curaie submission to the Pre-Trial Chamber in March 2020. Our Coalition is routinely faced with hostile measures of collective punishment from Israel, which are characterised by a climate of fear and inclusive of a protracted campaign of smears and death threats – all designed to foil, undermine, and deter Palestinian engagement with the Court. Meanwhile, direct and indirect threats from Israel and the United States continue in the form of the United States Executive Order 13928, intended in part to obstruct the pursuit of Palestinian justice at the ICC, and amounting to an egregious politicisation of the Court and an “unprecedented attack … against the Court, the Rome Statute system of international criminal justice, and the rule of law”. We call on the Biden administration to stand with the “victims of unimaginable atrocities that deeply shock the conscience of humanity” and rescind Executive Order 13928 in full.
General Director of Al-Haq, Shawan Jabareen, stressed the urgency of immediate action: “With this confirmation from the Pre-Trial Chamber, and in the context of ongoing attacks on the collective and individual rights of the Palestinian people and Israel’s national judicial shield of impunity, it is imperative that the Prosecutor immediately moves to begin investigating and prosecuting the full array of international crimes, including war crimes and crimes against humanity, perpetrated in the occupied Palestinian territory. Today, after seventy years of ongoing Nakba, Palestinian victims of Israel’s international crimes are one step closer to having their rights vindicated by the International Criminal Court.”
General Director of Palestinian Centre for Human Rights, Raji Sourani, recalled that: “the Prosecutor, in her 2020 Report on Preliminary Examination Activities, recognised that there is a reasonable basis to believe that members of the Israeli military had committed the war crimes of wilful killing of unarmed civilian protestors in the Gaza Strip, this decision means that the international community will no longer accept Israel’s subjection of Palestinian civilians in Gaza to the inhumane closure and brutal military offensives. Today, hope in the international justice system and the viability of the ICC to continue as an international Court to end impunity for grave crimes that ‘threaten the peace, security and well-being of the world’ has been restored.”
General Director of Al Mezan Center for Human Rights, Issam Younis, explained that given: “the prolonged unlawful closure of the Gaza Strip, and the systematic denial of the right of return to Palestinian refugees and exiles, the ICC ranks amongst the final avenues in which Israel’s pervasive and systemic culture of impunity for grave international crimes and widespread serious human rights violations may be challenged. The Prosecutor must now move swiftly to advance the files, including for the full-scale military assualt on Gaza in 2014 and regular targeting of Palestinian civilians, including children. Each day of inaction costs Palestinian lives”.
Our Coalition extends its thanks and applauds the work of everyone who has brought the fight for justice and accountability in Palestine to this point. Palestinian, regional, and international civil society, the victims and their legal representatives who have engaged tirelessly with the Court, scholars and legal experts, advocates, activists, human rights defenders, and all those across the world fighting for an end to impunity – with their international solidarity and support, the struggle for dignity and freedom for the Palestinian people continues.
Subjected to an apartheid regime, protracted occupation, an aggressive settler colonial enterprise, prolonged closure in the Gaza Strip, and the systematic denial of the right of return to Palestinian refugees and exiles, the Pre-Trial Chamber’s decision marks an important step towards ending impunity in Palestine; however, it must be followed by courageous and effective action by the Office of the Prosecutor. Our Coalition calls on third States and the international community to fully cooperate with the Office of the Prosecutor as per the obligations set forth in Article 86 of the Rome Statue, and in line with Common Article 1 of the four Geneva Conventions and Article 146 of the Fourth Geneva Convention, to ensure the arrest and transfer to the Hague of persons investigated and accused of international crimes in the oPt, to prevent the further continuation of international crimes against the Palestinian people.
 Al-Haq, Palestinian, regional, and international groups submit report on Israeli apartheid to UN Committee on the Elimination of Racial Discrimination (12 November 2019), available at: https://www.alhaq.org/advocacy/16183.html.
 ICC, Report on Preliminary Examination Activities 2020 (14 December 2020), para 224, available at: https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf.
 Preamble, Rome Statute of the International Criminal Court.
 Ibid., para 223.