A prosecution delegation from the International Criminal Court (ICC) visited Tel Aviv, Jerusalem and Ramallah from October 5 to 10. This was the first visit to Israel and Palestine since the Court opened a preliminary examination 22 months ago on crimes committed since June 13, 2014 in Gaza, the West Bank and East Jerusalem.
It was as if on tiptoe that a delegation from the ICC’s Office of the Prosecutor went to Israel and the West Bank from October 5 to 10, 2016. Israel continues to refuse the Court’s jurisdiction in the conflict but has decided in the last year or so to soften its position and allow this first visit. In a conflict where each move is seen as politically symbolic, this first visit seems to have been cloaked in lots of precautions. Neither Prosecutor Fatou Bensouda nor her deputy James Stewart joined the delegation. The visit had been announced in mid-September by Israeli Prime Minister Benjamin Netanyahou. Since Israel has not ratified the Rome Treaty of the ICC, it is not bound to cooperate.
An “educational” visit
The Prosecutor announced the visit on the eve of departure in a press release. “The delegation will not engage in evidence collection in relation to any alleged crimes,” said the communiqué. And so there would be no visits to crime sites but education and outreach to fend off “any attempt at politicization”. “The purpose of this visit will be to undertake outreach and education activities with a view to raising awareness about the ICC and in particular about the work of the Office; to address any misperceptions about the ICC and to explain the preliminary examination process,” said the press release.
This preliminary examination, which was opened in January 2015 at the request of the Palestinian Authority, concerns suspected crimes committed in Gaza, the West Bank and East Jerusalem since June 13, 2014. The previous day, three Israeli teenagers were kidnapped and killed and Israel launched a series of search operations and arrests. Then on July 7, the Israeli Defence Forces launched Operation Protective Edge in Gaza. It ended on August 26, having left 1,462 civilians dead and more than 11,000 injured on the Palestinian side, according to UN refugee agency UNHCR, plus six Israeli civilians killed and more than 1,600 injured. But the ICC delegation did not go to Gaza, drawing criticism from Hamas. “It is regrettable that the ICC delegation yielded to the demands of the Israeli occupation to exclude the Gaza Strip from the delegation’s schedule, despite the fact that the Gaza Strip was the main site of Israeli crimes in 2014,” says the Hamas statement. And it claims that “the visit has caused more pain and suffering for the families of victims who counted on the ICC to bring justice to them and bring the Israeli killers before the court”. Hamas is still considered a potential target of the Court, and Palestinian President Mahmoud Abbas had to get Hamas approval before approaching the ICC.
The issue of complementarity
For the time being, the ICC is only conducting a preliminary examination. “The Office must be given the necessary space and time to conduct its activities” in this case, says the Prosecutor. But Palestinian Foreign Affairs Ministry official Ammar Hijazi regrets that things are going slowly. “There is no lack of evidence and we believe that the Office of the Prosecutor should have been moving much faster,” he said.
In a progress report in November 2015, Fatou Bensouda said crimes had been committed on both the Israeli and Palestinian sides. If she is to officially open an investigation, she will have to determine whether the Israeli and Palestinian courts are “willing and able” to conduct trials instead. Hamas has not opened any investigations. At the end of August, the Israeli military prosecutor concluded his investigation into alleged crimes committed by the Israeli Defence Forces in Gaza, referring three soldiers to trial for looting. Otherwise, he concluded that the victims were not civilians but Hamas fighters, accused of having used the population as human shields and transforming civil infrastructures into military bases. The Israeli bombing of seven United Nations sites, including five schools, provoked outrage, but no investigation has been launched into these events.