A lot has happened before the International Criminal Court since we last reported on the Palestine and related situations. The timeline below picks up where my last timeline of relevant events left off. At that time, the Prosecutor had opened a preliminary examination into the Comoros referral based upon events on the Mavi Marmara, which was part of the Gaza freedom flotilla. The Prosecutor subsequently closed that examination on gravity grounds in November 2014. A month later, Palestine acceded to the ICC Statute, putting its territory—however that is to be defined—under ICC jurisdiction. The Office of the Prosecutor subsequently opened a preliminary examination into alleged crimes committed in occupied territory since June 13, 2014, when violence erupted anew in the region. Furthermore, the Comoros asked the Prosecutor to reconsider the decision to close the preliminary examination on its referral. A Pre-Trial Chamber requested the Prosecutor “reconsider her decision not to initiate an investigation.” At present, the Prosecutor has yet to announce the results of this “reconsideration,” which raises interesting questions of prosecutorial discretion. It is expected that the Prosecutor will update the Assembly of States Parties on both open situations at the next meeting of states in December 2017.
An updated timeline of events:
January 20, 2014: UN Secretary-General Ban Ki-moon endorsed the two-state solution outlined in the Road Map plan, saying that
Palestinians must be able to realize their legitimate aspirations to statehood, self-determination, dignity, and freedom, including an end to the occupation that began in 1967 with a just solution to the plight of refugees, and a resolution of the status of Jerusalem.
February 12, 2014: Israel joined the JUSCANZ consultative body to the UN Third Committee, comprised of 15 non-EU democratic countries. The UN Third Committee covers social, humanitarian affairs and human rights issues. Israel was previously admitted with limited participatory privileges in 2010. The U.S. released a statement praising Israel’s full admission as an important step forward in Israel’s engagement with the world.
April 1, 2014: The Palestinian Authority presented letters for accession to 15 international conventions and treaties, including the four Geneva Conventions and the Hague Convention (IV) (the list is here). The letters were accepted by the depositories. Canada, Israel, and the United States protested that Palestine does not qualify as a sovereign state, and thus cannot accede to conventions limited to states. An illustrative example of their position is the U.S. response to the depository’s acceptance of Palestine into the Vienna Convention on Diplomatic Relations (see Articles 48-50 for the accession rules):
The United States Mission to the United Nations … has the honor to refer to the Secretary-General’s depositary notification dated April 9, 2014, regarding the purported accession of the “State of Palestine” to the Vienna Convention on Diplomatic Relations. … The Government of the United States of America does not believe the “State of Palestine” qualifies as a sovereign State and does not recognize it as such. Accession to the Convention is limited to Sovereign States.
April 23, 2014: Fatah and Hamas announced a unity government as peace talks stalled. Israel refused to attend further negotiations.
April 24, 2014: Nine months of U.S.-mediated peace talks completely collapsed.
May 15, 2014: Two Palestinian teenagers were killed in the West Bank in clashes with Israeli troops.
June 12, 2014: Three Israeli teenagers were abducted and killed by Hamas operating in the West Bank.
June 13, 2014: Israel conducted an extensive search and arrest operation that ended when the bodies of the teenagers were found on June 30, 2014.
July 2, 2014: A Palestinian teenager was burned alive, allegedly as an act of revenge by Israeli teenagers, triggering widespread protests and violent clashes between Palestinians and the Israeli Defense Forces. Additional attacks give rise to speculation that a “knife intifada” had been launched.
July 17, 2014: Israel followed up the air offensive with a ground operation in Gaza in a declared effort to degrade “terror organizations.”
July 23, 2014: The UN High Commissioner for Human Rights, Navi Pillay, agreed to a Palestinian resolution requesting an international inquiry into humanitarian violations alleged to have occurred during the Israeli military offensive in Gaza. Of the 47 members, 29 voted in favor and 1 against, with 17 abstentions. The text of the resolution required the presentation of findings by the 28th session in March 2015.
August 26, 2014: The Israeli operation in Gaza concluded after Israel and Palestinian armed groups adhere to an unconditional ceasefire.
September 2, 2014: The ICC Prosecutor issued a statement on the ICC’s jurisdiction over Palestine, apparently as a result of media reports suggesting that the ICC has “persistently avoided opening an investigation into alleged war crimes in Gaza due to political pressure.” She emphasized that the situation on Palestinian territory was out of reach of the ICC at the time, notwithstanding arguments by legal scholars that the Court should intervene even where formal “jurisdictional parameters have not been met.”
October 30, 2014: Sweden became the first major European Union state to recognize the state of Palestine. The U.S. State Department called the decision “premature.” Israel recalled its Ambassador. Sweden explained that its intention was to put the parties on a level playing field to move peace talks forward. Other EU member states that had recognized Palestine: Bulgaria, Cyprus, the Czech Republic, Hungary, Malta, Poland, and Romania.
November 6, 2014: The Office of the Prosecutor closed the preliminary examination in the Comoros Referral. Chief Prosecutor Fatou Bensouda concluded that the cases possibly arising from the investigation would not be of “sufficient gravity” to justify more action by the ICC. The Office simultaneously published an Article 53(1) Report, Situation on Registered Vessels of Comoros, Greece and Cambodia, noting that while there was a reasonable basis to believe war crimes were committed, “the information available does not provide a reasonable basis to proceed with an investigation of the situation on the registered vessels of Comoros, Greece, and Cambodia that arose in relation to the 31 May 2010 incident.”
November 10, 2014: The Secretary-General convened a UN Headquarters Board of Inquiry into incidents occurring between July 8 and August 26, 2014 in Gaza and southern Israel and involving UN personnel, premises, and operations. As explained by Ban Ki-Moon in his letter conveying the results to the Security Council: a board of inquiry “is not a judicial body or court of law, it does not make legal findings or consider questions of legal liability.” Instead, it was convened ostensibly to develop a clear record of the facts in order enable the UN to take measures to prevent their recurrence. The Board was headed by retired Dutch General Patrick Cammaert, who later led the team investigating the violence (including attacks on aid workers) in South Sudan and the response, or lack thereof, of the UN mission (UNMISS). A similar body was established in 2009.
- set a one-year deadline for negotiations with Israel;
- established targets for Palestinian sovereignty (including a capital in East Jerusalem); and
- called for the “full and phased withdrawal of Israeli forces” from the West Bank by the end of 2017.
December 31, 2014: President Mahmoud Abbas acceded to the Rome Statute of the ICC. The ratification put the territory of the Palestinian Authority under the jurisdiction of the ICC. The U.S. called the move “counterproductive.” President Abbas and the Palestinian Authority also issued a new Article 12(3) declaration recognizing the retroactive jurisdiction of the ICC “for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”
January 2, 2015: The International Criminal Court recorded the accession of the “State of Palestine” to the Rome Statute, to enter into force on April 1, 2015, and the Article 12(3) declaration accepting ICC jurisdiction since June 13, 2014.
January 7, 2015: The ICC Registrar accepted Palestine’s Article 12(3) declaration, and transmitted it to the Prosecutor for her consideration.
January 16, 2015: The Prosecutor opened a preliminary examination into the Palestinian situation “in order to establish whether the Rome Statute criteria for opening an investigation [were] met.”
January 29, 2015: The Union of Comoros filed an Application for Review of the Prosecutor’s decision to close the preliminary examination, arguing that “there are cogent grounds for requiring the Prosecutor to reconsider her decision in light of all available information when the correct legal standards are applied.” Several victims subsequently sought leave to participate in the proceedings.
February 5, 2015: The UN Headquarters Board of Inquiry into incidents in Gaza and southern Israel submitted its confidential report to the UN Secretary-General.
March 23, 2015: The UNHRC extended the mandate of the Independent Commission of Inquiry on the 2014 Gaza Conflict to June 2015. In the oral statement to the committee, the chair of the independent commission noted the difficulty of accessing Gaza to properly conduct the investigation.
April 1, 2015: The ICC Statute entered into force for Palestine. The ICC welcomed Palestine as a new state party (bringing the number of states parties to 123) during a ceremony at the seat of the Court in The Hague. NGOs immediately began to call for the Prosecutor to open a formal investigation into international crimes committed in Palestine by both Israelis and Palestinians.
April 27, 2015: Secretary-General Ban Ki-Moon conveyed a summary of the Board of Inquiry’s report to the Security Council (the full report is confidential). Among other findings, the summary confirmed that Palestinians were killed and injured when UN premises came under Israeli attack and that Palestinian militant groups hid weapons in UN schools.
June 24, 2015: The Independent Commission of Inquiry on the 2014 Gaza Conflict issued its report of detailed findings. The report found “credible allegations of war crimes by both Israel and Palestinian armed groups.”
July 16, 2015: Pre-Trial Chamber I—consisting of Judges Joyce Aluoch (Kenya), Cuno Tarfusser (Italy), and Péter Kovács (Hungary)—rendered a decision on the request of the Union of Comoros. The Chamber (in a 2-1 ruling) identified a number of “material errors” in the Prosecutor’s assessment, and requested the Prosecutor “reconsider her decision not to initiate an investigation.” The Prosecutor appealed the decision.
November 6, 2015: The Appeals Chamber dismissed “in limine and without discussing its merits” the Prosecutor’s appeal of the Pre-Trial Chamber’s decision on the Comoros referral on the grounds that it was inadmissible under the Statute because the Pre-Trial Chamber’s ruling was not one on admissibility. A majority made up of Judges Sanji Mmasenono Monageng (Botswana), Howard Morrison (UK) and Piotr Hofmański (Poland) adopted the decision, while Judges Silvia Fernández de Gurmendi (Argentina) and Christine Van den Wyngaert (Belgium) dissented, concluding that they would declare the Prosecutor’s appeal to be admissible, without prejudice to their subsequent consideration of its merits.
June 3, 2016: The French Foreign Minister declared that the “two-state solution” in “serious danger” at a French-led conference on the Israeli-Palestinian conflict. Neither Israelis nor Palestinians attended the conference, which was praised by Palestinians and criticized by Israel.
October 5-10, 2016: The Office of the Prosecutor conducted a visit to Israel and Palestine, facilitated by both Israeli and Palestinian authorities. This visit was for the purpose of outreach and not investigative activities.
September 10, 2016: Projectiles from Syria landed in the Golan Heights prompting an Israeli attack against Syrian artillery positions.
November 14, 2016: The Office of the Prosecutor issued the 2016 Preliminary Examination Activities Report with an update on the Comoros referral: “The Office is nearing completion of its review of all information gathered prior to and since its initial report of 6 November 2014 and is preparing to issue the Prosecutor’s final decision under rule 108(3) in the near future.”
February 15, 2017: President Donald Trump, in his first meeting with Israeli Prime Minister Benjamin Netanyahu, seemed to abandon the U.S. commitment to a two-state solution, appearing to put a sovereign Palestinian state farther out of reach. The next day, U.S. Ambassador to the UN Nikki Haley attempted to clarify the U.S. position, including reiterating its commitment to the two-state solution while suggesting the U.S. would think “out of the box” to bring the two sides together.
July 7, 2017: UNESCO voted in favor of the Palestinian request to designate the old city of Hebron as a world heritage site. The world heritage committee ruling also put the site on UNESCO’s “in danger” list, which triggers the allocation of World Heritage Fund assistance and annual evaluation of the situation in the designated site. United States Ambassador to the UN Nikki Haley had previously issued a statement against the resolution, though U.S. efforts to counter the move were hamstrung by the continued lack of an U.S. Ambassador to UNESCO.
December 2017: An important event on the horizon is the next meeting of the ICC’s Assembly of States Parties (ASP). The Prosecutor historically releases her report on ongoing preliminary examinations in advance of the ASP, which will be held in December in New York.
The following additional states/situations remain subject to preliminary examination before the Court: Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, and Ukraine. Another 10 states/situations are under investigation: DRC, Uganda, Darfur Sudan, Central African Republic (I and II), Kenya, Libya, Côte d’Ivoire, Mali, and Georgia.