Judges at the International Criminal Court (ICC) have ordered the opening of an outreach programme for victims of the situation in Palestine, marking a new twist in the handling of this case.
On July 13, 2018, three judges ordered the ICC Registry to open a “system of public information and outreach activities among the affected communities and particularly the victims of the situation in Palestine”. In the judges’ view, the Registry “should establish a continuous system of interaction between the Court and victims, residing within or outside of Palestine, for as long as the situation in Palestine is assigned to a Pre-Trial Chamber”. The programme aims at this stage to inform the population about ICC procedures, but complaints can also be filed to the Prosecutor’s office. On May 22, the Palestinian Authority (PA) referred to the ICC all alleged Israeli crimes committed on Palestinian territory since the Gaza war of summer 2014, especially the settlements. “Israel is maintaining, extending and protecting the settlements policy whilst committing war crimes, crimes against humanity and crimes of apartheid,” PA Foreign Minister Riyad Malki has said at a press conference in The Hague. Palestine became an ICC member in 2015, but only made a specific referral to the Court in May 2018.
The ICC Prosecutor, who opened a preliminary examination in January 2015, has still not indicated if she intends to open a full investigation, but said in her most recent report that “the preliminary examination of the situation in Palestine raises specific challenges relating to both factual and legal determinations”. Israel rejects the term occupation, but refers to contested territories. The Office of the Prosecutor also has a problem with whether or not the Gaza war in 2014 was an international conflict. Above all, Tel Aviv contests the very existence of a State of Palestine, which is starting to gain some acceptance in international bodies. For several years, Ramallah has been following a policy of joining international bodies, most recently the Organisation for the Prohibition of Chemical Weapons (OPCW). Israel opposes this policy and is supported by the United States which since 2015 has made economic aid to Ramallah conditional on it not seeking recognition as a State through international bodies and not taking “any action with respect to the ICC” that “subjects Israeli nationals to an investigation for alleged crimes against Palestinians”. According to the Times of Israel, recent initiatives by the Palestinian Authority could lead to the closure of its representative bureau in Washington.
The Israeli government has not commented on the ICC judges’ decision, although official sources have been quoted online as calling it “unusual” and “strange”. A former legal counsellor to the government speaks of a “mad” decision which is only in favour of Palestinian victims. Yet the ICC decision refers to victims in general of the situation in the Palestinian territories. Israel has never hidden its opposition to the Court, whose scope for action it is trying to limit. On July 16, the Knesset adopted a law sanctioning organizations and individuals promoting judicial procedures abroad against Israeli soldiers.
The referral to the Court in May this year meant the situation was automatically assigned to a pre-trial chamber. That chamber’s first act is this decision, in which it says that the “right to an effective remedy” and the “right to have access to justice” lie at the heart of victims’ rights. The judges have given the Registry specific orders and a calendar, including the launch of a dedicated page on the ICC website. They say the informative activities should provide victims, intermediaries, lawyers and NGOs with general information about the Court, its various organs and activities, “clearly indicate the general parameters of the Court’s jurisdiction in relation to the situation in Palestine” and the statutory roles of victims at each stage of the procedures.
The pre-trial chamber’s decision is a first, whereas the absence of outreach notably in Georgia and Afghanistan has been a source of criticism in the last two years. In Georgia, where the Prosecutor has been investigating since January 2016, the Registry waited three years before launching its outreach programme in January this year. With regard to Afghanistan, nothing had been done before Fatou Bensouda filed a request in November 2017 asking the judges for a green light to investigate. The judges have still not handed down their decision, but victims have been invited to communicate with the Court within the specified time limits. Taken aback, several NGOs accused the Court of not preparing the ground properly. Even though the Prosecutor opened a preliminary examination of crimes in Afghanistan in 2007, few people even within the government know much about how the ICC works.