BADIL Resource Center for Palestinian Residency and Refugee Rights (BADIL) welcomes the update issued by the Office of the Prosecutor (OTP) of the International Criminal Court in relation to the ongoing preliminary examination into the situation in Palestine, though the Court must now move to initiate a formal investigation.
The report recognizes that Israel’s annexation of East Jerusalem constitutes a violation of international law, and reiterates the Court’s position that the Gaza Strip may be deemed as occupied territory. On both counts the Court has positioned its rational firmly in line with international consensus. Further, the report reveals a high level of engagement with the preliminary examination process from State and non-State parties. 86 separate communications have been received thus far, leading to the creation of a database of more than 3,000 incidents and international crimes alleged to have taken place in the context of Operation Protective Edge; the large-scale military assault launched by Israel against the Gaza Strip in summer 2014, which left at least 2,250 Palestinians dead, including 299 women and 551 children.
This database is being used to facilitate crime pattern analysis, which is critical in developing understanding of the true nature of incidents and conduct which took place and, by extension, the true nature of Protective Edge as a whole. For instance, such analysis is essential in ascertaining whether alleged criminal acts constituted isolated instances, or were instead the result of policies or strategies which were themselves unlawful. If the latter, this would indicate culpability of high-ranking officials within both Israel’s military and political realms.
The OTP has confirmed that, in relation to Protective Edge, it is reviewing information pertaining to allegations which include Israeli targeting of civilians and residential buildings, as well as air strikes directed at medical facilities, humanitarian shelters and other civilian objects. BADIL welcomes such review, but notes with concern that the report does not record allegations of forcible transfer - constituting both a war crime and crime against humanity - made against high-ranking Israeli officials. BADIL has catalogued and submitted to the Court extensive evidence of such conduct, and during Protective Edge, some 169,750 Palestinian housing units were destroyed or damaged, leaving 108,000 people homeless, while at the height of the assault roughly half a million Palestinians were displaced. Such mass displacement, born of Israeli practices and policies which in themselves attract allegations of international crime, cannot be said to be a normal byproduct of armed conflict. Accordingly, it is of paramount importance that the OTP acknowledge that accusations of forcible transfer have been made, and that such allegations are given full consideration.
Initiation by the OTP of a formal investigation therefore represents a logical and necessary step towards the realization of accountability for perpetrators of international crimes and the delivery of justice for victims. Concerning the latter, the legitimate requirement that information received be subject to rigorous assessment must not be used to affect undue delay to the bringing to justice of perpetrators of international crimes. It is also to be noted that such delay increases the risk of critical evidence being lost or removed.
Nor can the heavy workload of the Court be allowed to compromise its purpose. As noted by Human Rights Watch in June 2016, “[the International Criminal Court] prosecutor’s crowded docket should not deter her from moving forward on the Palestine situation and chipping away at the wall of impunity.” For Palestinian victims of Israeli practices and policies during Protective Edge, this justice will not be forthcoming through Israel’s own internal investigative processes. As highlighted in the recent B’tselem publication, Whitewash Protocol, these processes fall desperately short of international standards and effectively shield perpetrators from any appreciable form of accountability.
These are trying times for the International Criminal Court, those who seek to assist with its work and the field of International Humanitarian Law generally. In recent months several state parties have notified the Court of their intention to withdraw from its jurisdiction, while human rights defenders - including representatives of Palestinian human rights organizations - have received death threats following their engagement with the Court. More widely, the conduct of state and non-state actors in a host of contemporary armed conflicts has threatened to grievously erode the very corpus of law which serves to protect civilians from the horrors of warfare.
Against this backdrop of fundamental destabilization it is vital that the organs of international justice demonstrate their worth and deliver upon the terms of their mandates. To this end the Office of the Prosecutor of the International Criminal Court, given the wealth and nature of information available - which in many cases enjoys corroboration from multiple sources and submissions - must now move from the present preliminary examination into the situation in Palestine to a formal criminal investigation. Failure to do so is to further embolden perpetrators of international crimes and to contribute to the ‘unimaginable atrocities’ outlined in the Rome Statute becoming routine practice.