For the first time, the Palestinian government has submitted a referral to the International Criminal Court (ICC) calling on prosecutors to open an immediate investigation into Israeli crimes in the occupied Palestinian territories.
Palestinian Authority Foreign Minister Riad al-Malki arrived on Tuesday at the independent court, based in The Hague, Netherlands, to meet with Prosecutor Fatou Bensouda.
“The State of Palestine took an important and historic step towards justice for the Palestinian people who continue to suffer from ongoing, widespread and systematic crimes,” said Malki in a press conference after the meeting.
Malki said the referral addressed a myriad of issues including “settlement expansion, land grabs, illegal exploitation of natural resources, as well as the brutal and calculated targeting of unarmed protesters, particularly in the Gaza Strip”.
The diplomatic move comes after widespread outrage in the occupied Palestinian territories and internationally over the Israeli army’s killing on May 14 of 62 unarmed Palestinian protesters in the Gaza Strip, in what was described by rights groups as a massacre.
“Through this referral, we want the Office of the Prosecutor to open, without delay, an investigation into all crimes that she presently concludes have been commissioned or are ongoing,” said Malki.
“This referral is Palestine’s test to the international mechanism of accountability and respect for international law,” he added.
While Israel is not a party to the Rome Statute – the treaty of the ICC to which all members are bound to – its nationals could be tried by The Hague-based court for crimes committed on Palestinian territory.
The State of Palestine formally became a member of the ICC in April 2015, giving the court jurisdiction over crimes committed in the territory since June 13, 2014 – including the 2014 Israeli assault on Gaza.
The ICC’s Office of the Prosecutor began its preliminary examination of the “situation in Palestine” in January 2015.
In this phase, the prosecutor is meant to determine whether the criteria have been met to warrant pursuing a formal investigation based on the information available publicly or submitted to the office and whether local courts are carrying out credible investigations.
While the PA and Palestinian NGOs have submitted documents as proof of Israeli government crimes, and requests to open a formal investigation, Palestine has never formally referred a case.
Instead, the PA largely relied on the prosecutor to open an investigation on her own accord, which delays the prospects of opening an investigation.
In regards to the referral, Alex Whiting, a former ICC official, said that a state referral makes it “much harder” for the Office of the Prosecutor “to stay in the preliminary examination phase for years.”
If a state asks for an ICC investigation, it is much harder for OTP to stay in the preliminary examination phase for years. Referral creates expectations and signals willingness to cooperate, and therefore pushes OTP towards investigation. The referral has a real effect.
— Alex Whiting (@alexgwhiting) May 21, 2018
Pressure on the PA
Diana Buttu, a former legal advisor to Palestinian negotiators, told Al Jazeera that while “this has been an option for the PA for quite some time, the significance now is that there is enough pressure on PA President Mahmoud Abbas to do something”.
The reasons behind the PA’s decision not to make such a move earlier, she explained, were linked to how approximately “one million Palestinians” were on the PA’s payroll, adding that “international donors have also played a role in making it clear that they will not support a PA that is actually defending Palestinian rights”.
In retaliation for Palestine’s decision to join the ICC in 2015, Israel withheld millions of dollars in tax revenues that it collects on behalf of the PA.
The latter has also routinely been threatened by the US and Israel not to make any moves in the ICC.
But while a referral does not automatically trigger an investigation, it applies more pressure on the Prosecutor to open one.
Commenting on the Palestinian referral to the ICC on Tuesday, the Israeli foreign ministry said the request is “legally invalid”.
“The ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israel is not a member of the Court and because the Palestinian Authority is not a state.”
Israel expects the ICC and its Prosecutor not to yield to Palestinian pressure, and stand firm against continued Palestinian efforts to politicize the Court and to derail it from its mandate.
— Israel Foreign Min. (@IsraelMFA) May 22, 2018
Both Palestinian and international rights groups have long called for the ICC to open a formal investigation.
Omar Shakir, the Israel-Palestine director at New York-based Human Rights Watch said “without accountability, bloodshed will continue”.
Referring to the Israeli army’s killing of 110 Palestinian protesters in the Gaza Strip since March 30, Shakir told Al Jazeera: “The calculated killings of over 100 Palestinians in demonstrations in Gaza highlights the importance of the International Criminal Court prosecutor opening a formal investigation into serious crimes in Palestine.”
Follow Zena Tahhan on Twitter: @zenatahhan