The International Criminal Court (ICC) has announced that it has “made significant progress in its assessment” to determine “whether there is a reasonable basis to proceed with an investigation” into war crimes committed by Israel.
Yesterday’s announcement by the Chief Prosecutor of the ICC, Fatou Bensouda, means that The Hague office will press ahead with its preliminary examination, which was launched nearly three years ago in January 2015.
A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation under the principals of the Rome Statute.
The Office said that it had “reviewed and assessed a large body of information from various types of sources provided to the Office by relevant individuals, local and international NGOs, international organisations, and States.” This includes a 700-page report alleging that high-level Israeli officials have been complicit in committing war crimes and crimes against humanity in the Israeli-occupied West Bank and East Jerusalem.
Many of these groups who are based in occupied West Bank have urged Bensouda earlier in the year to “urgently open a full investigation into the situation in the occupied Palestinian territory” as a “necessary step to ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable”.
In its report on the Preliminary Examination Activities 2017, the ICC said it had deliberated on “Jurisdictional Issues” while offering an early indication of the findings from the initial assessment it has carried out to determine if war crimes had been committed in the occupied West Bank and Gaza. The ICC office pointed out that there is “possible challenges to the Court’s jurisdiction”; nonetheless it insisted that the ICC’s jurisdiction had extended to Palestine following “the Government of Palestine accepting the jurisdiction of the ICC over crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”.
In addition to Israeli protestations over the court’s jurisdiction, the Office also responded to a number of other Israeli objections. The report mentioned that Israel challenged the classification of Gaza and the West Bank as occupied territory thus rejecting the extension of the Geneva Conventions to the territory. Israel insisted that occupied Palestine was in fact “disputed territory whose status will ultimately be resolved in the course of peace process negotiations”.
The ICC on the hand cited the International Court of Justice, United Nations Resolution and various intergovernmental agencies to dispute the Israeli claim. “Intergovernmental and international judicial bodies have periodically made determinations that the West Bank, including East Jerusalem, has been occupied by Israel since 1967,” said the ICC, “these include the International Court of Justice (ICJ) in its 2004 Israeli Wall advisory opinion and the UN Security Council and General Assembly in various resolutions adopted over the past 50 years.”
The ICC also cited last December’s UN Security Council resolution 2334 which reaffirmed the occupied status of the West Bank, and explicitly condemned the “construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions”.
While the ICC Office has not made a final determination to open an investigation against Israel it said that the “the Office has made significant progress in its assessment of the relevant factual and legal matters necessary for the determination of whether there is a reasonable basis to proceed with an investigation”. The Office also said that it had “reviewed thousands of pages of material and drafted multiple analytical products. This assessment will continue, under the strict guidance of the Statute and with a view to reaching conclusions on jurisdictional issues within a reasonable time frame.”