While the Palestinian Authority expressed its desire to accept ICC jurisdiction, it was only following its upgrade to “non-member state” observer status at the United Nations that Palestine could finally accede to the Rome Statute on 2 January 2015, giving the ICC jurisdiction from that date forward. Several days later Palestine submitted a declaration under article 12(3) of the Rome Statute giving the ICC prosecutor jurisdiction over alleged grave crimes committed in the context of the Israel-Palestine conflict in Gaza and East-Jerusalem beginning June 2014. The prosecutor subsequently opened a preliminary examination to determine whether a full investigation is warranted. In June 2016, Palestine ratified both the Kampala amendments, becoming the 30th state to ratify the amendment on the crime of aggression.
ICC preliminary examination into the 2014 Gaza conflict
The ICC prosecutor opened a preliminary examination into the situation in Palestine on 16 January 2015, following an article 12(3) declaration lodged by the Palestinian government on 1 January of that same year. The ICC has jurisdiction over crimes committed on Palestinian territory or by Palestinian nationals as of 13 June 2015. The preliminary investigation is focused on alleged crimes committed by both Palestinian armed groups and Israeli defense forces during the 51-day Gaza conflict in 2014, as well as alleged crimes related to settlement activities in Gaza and the West Bank.
UN Commission of Inquiry calls for investigations into grave crimes during 2014 Gaza conflict
In June 2015, a commission of inquiry into the 2014 Gaza war—mandated by the UN Human Rights Council—presented a report detailing war crimes allegedly committed by both sides during the summer of 2014. Citing indiscriminate and disproportionate rocket fire into civilian populations by both Israel and Palestinian armed groups, the report encouraged local authorities to conduct criminal investigations to uphold accountability and deter future escalations of violence.
The government of Palestine has provided information to the ICC Office of the Prosecutor (OTP) on alleged crimes in relation to the 2014 Gaza conflict.
In July 2015, Israel opened a dialogue with the OTP in relation to the preliminary examination, publishing a report on factual and legal aspects of the 2014 conflict.
However, the Palestine preliminary examination has caused a worrying political backlash. Israel and the US have issued strong statements against the recognition of Palestine as a state as well as against the ICC, and both withheld aid to put pressure on Palestine.
Palestine’s responsibilities as an ICC member state include cooperating with the Court and its decisions, incorporating the Rome Statute into national legislation, and assisting the OTP with its preliminary examination. Israel should also engage positively with the Court. The international community—ICC member states in particular—must support the accountability process, whether through national courts or the ICC.
Palestine’s quest for ICC membership
Palestine attended the Rome Conference in 1998 as an observer delegation and frequently expressed support for the Court as a tool for accountability, and in particular as a means to end impunity for international crimes allegedly committed in the Palestinian territories.
In April 2012, the OTP rejected a special ad hoc declaration by Palestine under Rome Statute article 12(3) in 2009 accepting the Court’s jurisdiction over acts committed on its territory since 1 July 2002. Such declarations are reserved for states only, as noted by the OTP when it refused to act as proxy for competent UN bodies or eventually the ICC’s Assembly of State Parties (ASP) to resolve legal issues relevant to Palestine’s statehood. The OTP thus deemed itself unable to proceed with a preliminary examination to determine whether a formal investigation would be warranted.
In November 2012, by UN General Assembly Resolution 67/19, Palestine’s status at the UN was upgraded from observer entity to non-member observer state, allowing it to join a number of international treaties. At the December 2014 session of the ASP, Palestine was for the first time invited to participate with non-state party observer status. The Palestinian Authority ratified the Rome Statute, as well as the Agreement on Privileges and Immunities, in January 2015.
Civil society activities
International and local civil society organizations have long advocated for accountability measures to address crimes committed within the context of the Israeli-Palestinian conflict.
Civil society urged Palestine and continues to urge Israel to join the ICC to stem well-documented mass violations of international law during the course of the decades-long conflict.
Since the opening of a preliminary examination in Palestine in 2015, Coalition members have continued documenting and raising awareness about human rights violations and submitting relevant information to the OTP, while working with both Palestine and Israel to ensure cooperation with the ICC.