The International Criminal Court and Israel's Acts in the Occupied Territories: Progress and Prospects.

• Author: Acer, Yucel
• Position: ARTICLE

Introduction

Once a part of the Ottoman Empire for four centuries, the Palestinian territories were placed under British Mandate (1) through the mandate system of the League of Nations (LN) in 1920. (2) According to Article 22 of the LN Statute, which was regarded as the mandates system's 'constitution,' (3) the mandatory powers were, on behalf of the League, to 'exercise' their 'tutelage' of "peoples not yet able to stand by themselves under the strenuous conditions of the modern world." (4)

The British mandate was widely abused, with the permission of the UK and through the work of Zionist organizations, by allowing extensive Jewish migration to the Palestinian territories between 1922 and 1939. As a result, the Jewish population, which was around 56,000 at the beginning of the mandate, had risen to 608,000 by 1946. The Jewish exodus eventually led to a Palestinian Arab resistance in the 1930s, which has continued ever since.

When Britain declared its intention to end the mandate and withdraw from the region immediately after WWII, and carried the issue to the United Nations (UN), a process of negotiation was carried out at the UN General Assembly. The proposal submitted to the General Assembly, known as the 'partition plan' of Palestine, was approved on November 29, 1947, as Resolution 181, with 33 affirmative votes, 13 against, and 10 abstentions. (5)

The non-binding resolution envisaged the establishment of an unnamed 'Arab State' and an unnamed 'Jewish State' in the Palestinian region. The decision essentially divided all Palestinian lands into eight regions, leaving three of them to the Arab State and three parts to the Jewish State. Jaffa, the seventh region, would be an Arab enclave within the Jewish area, and al-Quds was designated as a corpus separatum and placed under the international regime and the administration of the UN Trusteeship Council for a period of 10 years. (6)

It should be noted that the Resolution 181 contained important guarantees for the fundamental rights of individuals in the territories. These covered the right to free movement, freedom of religion, and all kinds of worship; no discrimination on the basis of race, religion, language, and gender; the right to equal protection by law, including family law; the right to respect for minority status, and the religious interests of individuals in language and culture; primary and secondary education for Arab and Jewish minorities; the right to run their own schools; the prohibition of confiscation of the personal property of Arabs in the Jewish State except for the public benefit.

Upon the declaration of the State of Israel on May 14, 1948, Arab-Israel clashes erupted immediately and ended in mid-1949 with a ceasefire agreement. (7) The immediate actions of Israel focused on achieving certain political goals, especially concerning territory, in violation of Resolution 181. The lands accorded to the Jewish State by the decision were thus gradually expanded. The systematic violence against the Palestinian people caused them to seek refuge in neighboring states, resulting in the 'great Palestinian exodus.' (8) In December 1948, the UN General Assembly adopted Resolution 194 (III), (9) which demanded the Israeli evacuation of the occupied territories, and the return of the displaced.

In the following years, especially with the 1967 Arab-Israeli War, Israel occupied all of Palestine except the West Bank and the Gaza Strip. The UN resolutions taken in the following years demanded Israel's withdrawal from the occupied territories. Resolution 237, taken unanimously by the UN Security Council immediately following the 1967 War, states that "gaining a country through war" is unacceptable and that "Israel should withdraw from the occupied territories in the latest conflicts." (10) Nonetheless, Israel continued to systematically violate the principles on the protection of fundamental human rights stipulated by both Resolution 181 and subsequent UN resolutions. (11)

It is a conscientious and legal defect that not all of these violations have so far been properly addressed in legal terms. Those responsible for illegal criminal acts have not been prosecuted, although the illegality of these acts has been registered since the very first UN General Assembly Resolution, 194 (III), on the dispute. In fact, similar acts continue at great speed. (12)

So far, only a small part of the issue, i.e., the wall that Israel started to build in the West Bank in 2002, was brought to the international judiciary, which resulted in a decision condemning the construction of the wall in many respects, such as the violations of the fundamental rights of individuals. (13)

Against this background of injustices, a legal process has recently been initiated before the International Criminal Court (ICC) to address the crimes and the criminals responsible for them. As a non-party State, the Government of Palestine issued a declaration on June 13, 2014, under Article 12(3) of the ICC Statue to accept the Court's jurisdiction over the alleged crimes committed "in the occupied Palestinian territory, including East al-Quds, since June 13, 2014." The State of Palestine later acceded to the Status of the ICC on January 2, 2015, by depositing its instrument of accession with the UN Secretary-General. The ICC Statute entered into force for the State of Palestine on April 1, 2015. (14)

Upon the request of the State of Palestine, the Persecutor initiated a preliminary examination on January 16, 2015, during the course of which the Prosecutor needed to make a request from the Pre-Trial Chamber to decide on the scope of the territorial jurisdiction of the Court, referring especially to the occupied Palestinian Territories.

The Pre-Trial Chamber I delivered its decision on February 5, 2021. The decisions of both the Prosecutor and the Pre-Trial Chamber I have signified distinctive developments in the trial of those individuals responsible for crimes committed in the territory of Palestine. They have also addressed various issues concerning the status of Palestine as a State and occupied territories, as well as the prospective trial for the crimes committed in the Palestinian territories since 2015. The review below addresses these significant matters as well as the prospect for the success of future trials.

The Procedure before the ICC and the Referral of the Situation in Palestine

As emphasized in the preamble and Article 1 of the ICC Statute, the Court was prepared to hold individuals responsible for certain crimes of international concern. The mandate of the Court is limited in terms ofjurisdiction. The Court may not initiate its mandate unless these jurisdictional conditions are met.

Initiation of an Investigation by the ICC

An investigation on allegations concerning the commission of at least one of the crimes covered in Articles 5 to 8 of the ICC Statute can be initiated with certain procedures, which are defined in Article 13 of the Statute. A situation can be referred to by the Prosecutor of the ICC in three separate ways. A State party could refer a situation to the Prosecutor. (15) Here, the party State or States should specify in the referral 'the relevant circumstances' with 'supporting documentation as far as possible. (16) The second way is that under Chapter VII of the UN Charter, the UN Security Council may refer to the Prosecutor a situation in which one or more statutory crimes appears to have been committed. (17)

Third, the Prosecutor himself or herself may initiate an investigation proprio motu in respect to such crimes. In this way, the Prosecutor can receive information from all sources, including non-party States and non-State formations or individuals, to initiate an investigation on her or his own. (18)

In cases where the Prosecutor initiates an investigation proprio motu and concludes that "there is a reasonable basis to proceed with an investigation," the Prosecutor "shall submit to the Pre-Trial Chamber a request for authorization of an investigation." (19) If the Pre-Trial Chamber considers that there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court, the Chamber shall authorize the commencement of an investigation. This is not the final decision on the commencement of the investigation, as the Court may decide in the later stages of the case that the Court lacks jurisdiction or that the case is not admissible. (20)

Similarly, if the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation after the preliminary examination; he or she shall not initiate an investigation. Even if the decision is not affirmative, the Prosecutor may still consider further information as to the same situation in the light of new facts or evidence. (21)

As an international treaty, the Statute is open only to the participation of States, although the Court has jurisdiction over individuals rather than States. The ICC Statute provides that the procedure concerning the trial and punishment of individuals could be done by acquiring the approval of the States.

Therefore, if the Prosecutor initiates a proprio motu investigation, a Pre-Trial Chamber according to Article 15(4) of the Statute reviews the jurisdictional evaluation of the Prosecutor. In the event that a State party refers the situation, the Prosecutor may, but is not required to, request a decision from the Pre-Trial Chamber about 'jurisdiction' or 'admissibility' for clarification. In such cases, the Prosecutor may need a ruling from the Court concerning the question of jurisdiction or admissibility. (22)

Referral of the Situation in Palestine

Palestine acceded to the Status of the ICC on January 2, 2015, when it handed over its instrument of accession to the UN Secretary-General. The Statute entered into force for the State of Palestine on April 1, 2015. (23)

Before becoming a party...