Earlier this month, the International Criminal Court (ICC) pre-trial chamber ordered the ICC to establish a system of disseminating public information to and conducting outreach activities with the affected communities and victims of the situation in Palestine, a situation currently undergoing preliminary examination at the Court. The decision recognizes victims’ right to be heard in the context of the ICC’s work, and requires that outreach activities explain the ICC’s jurisdiction with regards to the situation in Palestine; provide information on the Court, including on the role of victims at each stage of proceedings; and respond to victims’ concerns. See ICC, Situation in the State of Palestine, ICC-01/18, Decision on Information and Outreach for the Victims of the Situation, 13 July 2018, paras. 14-16. The pre-trial chamber’s order marks the first time that the Court has promoted information and outreach activities as early as the preliminary examination stage. [Al Jazeera]
Decision by the ICC
The ICC pre-trial chamber’s decision outlines a move to increase victim participation at an earlier stage of proceedings; the ICC pre-trial chamber found not only that victims have a right to be heard at certain steps in the process, but also that the ICC has a duty to ensure they are heard. In making this finding, the pre-trial chamber drew from Article 68(3) of the Rome Statute, which directs the Court to “permit [victims’] views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court,” and the ICC’s need for outreach that would increase the accessibility of the Court in order for it to fulfill its mandate, to respond to the concerns of victims effectively, and to facilitate victims’ exercise of their rights. See Situation in the State of Palestine, 13 July 2018, paras. 7, 8, 11.
Elaborating on the right of victims to be heard, the ICC pre-trial chamber determined that the rights of victims are not limited to judicial proceedings, but also include the right to provide information to and receive information from the ICC at other stages and “independently from judicial proceedings.” See id. at paras. 9-10. Victims have the right to communication, the pre-trial chamber further stated, during the preliminary examination stage. See id. at para. 10. Noting that the Rome Statute’s Article 21(3) requires consistent interpretation with international human rights law, the pre-trial chamber consulted the United Nations Convention on the Rights of the Child, the UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, and UN General Assembly resolutions on access to justice and the right to a remedy, in considering the right to an effective remedy and the right to access to justice in the context of victim outreach and communication with the ICC. See id. at para. 9.
The pre-trial chamber’s decision establishes a number of steps for reaching out to victims. The ICC should, the pre-trial chamber opined, take steps during preliminary phases to provide information about the ICC’s mandate and activities to victims. See id. at para. 12. The pre-trial chamber ordered the ICC Registry to establish a system of communication between the victims, both inside of and outside of Palestine, and the Court before December 14, 2018, and to issue updates every three months on its progress in conducting outreach. See id. at para. 14, Orders (a)-(b). If the ICC Prosecutor opens an investigation into the situation, the Registry will increase activities and assistance to victims regarding their participation. See id. at para. 12.
The information shared with the victims should explain the boundaries of the Court’s jurisdiction as it relates to the situation in Palestine; should provide information on the Court’s mission and its organs’ roles; explain the different stages of proceedings at the ICC and victims’ roles during each; and address victims’ concerns. See id. at para. 16. The ICC’s approach to sharing information, the pre-trial chamber stated, should take into account languages spoken, local customs, literacy rates, and access to media in order to craft an acceptable program, and should implement this program through multiple mediums including international media, radio, television, and the internet. Additionally, the pre-trial chamber ordered the Registry to establish a webpage on the situation in Palestine on the Court’s website in languages relevant to the affected communities. See id. at paras. 17-18, Orders (c).
The Situation in Palestine
The situation in Palestine stems from the June 1967 Six-Day War, during which Israel took control of the West Bank and East Jerusalem. See ICC, Report on Preliminary Examination Activities (2017), para. 54. After the conclusion of the war, Israel established a military presence in the West Bank and adopted laws and orders to effectively impose Israeli law over East Jerusalem. See id. Peace talks between the Palestine Liberation Organization and the State of Israel at the Oslo Accords of 1993-1995, during which the organizations agreed to the handover of certain Palestinian-populated areas in the West bank to the Palestinian National Authority, ceased in 1995. See id. at paras. 55-56.
On July 7, 2014, Israel began its “Operation Protective Edge” in Gaza to disable the military capabilities of Hamas and other groups operating in Gaza, through the use of air strikes, ground operations, and alternating ceasefires and air strikes; several Palestinian armed groups participated in the hostilities, which ended when both sides agreed to an unconditional ceasefire on August 26, 2014. See id. at para. 57. Between July 2 and August 26, 2014, over 2,000 Palestinians and 70 Israelis were killed, including civilians, and thousands of children were injured or killed. See id. at paras. 64-65.
The alleged crimes submitted to the ICC include the settlement of Jewish civilians into the territory in the West Bank and East Jerusalem and the forced removal of Palestinians from their homes in those locations, as well as systematic discrimination that deprives Palestinians of fundamental human rights. See id. at paras. 59, 63. Israeli authorities are alleged to have endorsed plans for the construction of residential units in the east bank, to have authorized a new settlement to require Palestinians at the Amona outpost to relocate, and to have demolished Palestinian property. See id. at paras. 59-63. Additionally, regarding the Gaza conflict, Israelis forces’ allegedly attacked, or affected through attacks, civilian areas, including residential and medical buildings, and Palestinian groups allegedly committed crimes, including using people as shields and subjecting people to ill-treatment. See id. at para. 66.
The ICC’s involvement with the situation in Palestine began in January 2015. On January 1, 2015, Palestine submitted to the ICC a declaration accepting the jurisdiction of the ICC over alleged crimes committed in the occupied Palestinian territory since June 13, 2014, in accordance with Article 12(3) of the Rome Statute; Article 12(3) allows States not a party to the Rome Statute to accept jurisdiction of the Court over particular alleged crimes, granting the ICC the ability to begin examining the situation. Palestine then deposited its instrument of accession to the Rome Statute with the UN Secretary General on January 2, 2015, and the Rome Statute entered into force for Palestine on April 1, 2015. [ICC Press Release: Declaration] The ICC prosecutor opened the preliminary examination into the situation in Palestine on January 16, 2015. [Press Release: Examination] In May 2018, Palestine referred to the ICC the situation, requesting that the prosecutor investigate past and ongoing crimes committed in the occupied Palestinian territory. See Situation in the State of Palestine, 13 July 2018, para. 4.
Statements by UN Experts and Bodies
United Nations experts have issued statements about recent events in the occupied Palestinian territory that could potentially violate international criminal law. On July 23, the UN High Commissioner for Human Rights noted the increase in violence earlier in July that nearly escalated into a larger conflict, in part due to the use of indiscriminate weapons; during one weekend, two Palestinian children were killed due to Israeli Security Forces launching 28 airstrikes, and Palestinian armed groups fired 184 rockets and mortar shells, and launched burning kites and incendiary balloons. Three Israelis were injured. [OHCHR Press Release: Statement; UN News] The High Commissioner stated, as a reminder to all parties to the violence, that the disproportionate or indiscriminate use of weapons that cause death or injury to civilians violates international humanitarian law. [OHCHR Press Release: Statement]
The Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967 warned, a day after the High Commissioner’s statement, that the proposed demolition of a Palestinian Bedouin village could result in a violation of the Geneva Convention by forcing the transfer of a protected community. [OHCHR Press Release: Demolition]
The ICC, which was inaugurated in 2002 and has its seat in The Hague, Netherlands, tries individuals for war crimes, genocide, and crimes against humanity. The Court has jurisdiction over cases in which the alleged perpetrator is a national of one of the 123 States parties to the Rome Statute, the crime was committed on the territory of a State party, the State involved authorizes the Court’s jurisdiction, or the United Nations Security Council refers a situation to the Court. The ICC may conduct a preliminary examination after individuals, non-governmental organizations, States, or intergovernmental organizations submit information; a State party to the UN Security Council refers a situation; or a State makes a declaration under Article 12(3) of the Rome Statute. Preliminary investigations examine jurisdiction, admissibility, and the interests of justice to determine if there is a basis to investigate the situation. The ICC is an international tribunal designed to complement national judiciaries; thus, it can only step in when national courts are unable or unwilling to prosecute.
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