By Journalists for Justice
Journalists for Justice (JFJ) has had an early look at some of the documents Palestinian Foreign Minister Riad Malki is expected to submit to the Prosecutor of the International Criminal Court in The Hague on Tuesday morning.
A “referral factsheet” and “a summary of cooperation by the state of Palestine”, will be part of documents Palestine will submit as part of its referral to the ICC, a development that is bound to draw attention given its occurrence on the heels of the killing at least 60 Palestinians by Israeli sniper fire during the official opening of the US embassy in Jerusalem.
Initially, speculation was rife that the Palestinian referral would dwell on recent events in Gaza but it appears that the current focus is on Israeli settlements on contested territory. The referral will not concern the recent Gaza killings, as some expected when the meeting was announced last week, but the years-old policy of colonizing Palestinian land with illegal Jewish settlements. This was confirmed to Journalists For Justice by the Palestinian embassy to The Hague on Monday:
“The Referral covers past, present, and future Israeli actions to promote, expand, and entrench the settlement regime perpetrated by, or with the assistance of, the government of Israel or its agents and accomplices in the occupied territory of the State of Palestine, including East Jerusalem. The settlement regime encompasses all policies and practices designed to forcibly transfer Palestinians and allow for and perpetuate the unlawful transfer of Israeli citizens to the occupied territory and facilitate their continued presence there, including planning, construction, expansion, maintenance, security and development of settlements as well as related infrastructure, including the Wall and the blockade on the Gaza Strip,” reads the body of the referral document.
The ICC Prosecutor began a preliminary examination of the “situation in Palestine” in January 2015. In a recent “preventative statement” and in an interview with AFP, the ICC Prosecutor was at pains to warn “all parties that the situation in Palestine is under preliminary examination” by her office.
Palestine also alleges that Israel commits the crime of apartheid because of the way it treats the Palestinians in the occupied territories. Under the Rome Statute, the crime of apartheid is punishable when committed by racist, discriminatory and oppressive regimes similar to that what was in place in South Africa.
Palestine may have chosen to refer (Rome Statute jargon for asking to investigate and prosecute) the matter of the Jewish settlements issue and not the recent violence because the war crime of colonizing occupied land is easier to prove. In spite of the justified outcry about the recent killings of Palestinian children, some investigative effort would have been required. An occupying power has both the right and the duty to maintain public order. When using force to do so, it must respect the principle of proportionality.
When the ICC finds evidence of war crimes, its Prosecutor will also analyse the chain of command, as it is the spirit of the Rome Statute’s founding fathers to prosecute the leaders who gave the orders rather than the “foot soldiers”.
As for the “colonizing crime”” to the contrary, Israeli (prime) ministers have signed decisions to build and expands Jewish settlements, thus providing excellent inculpatory evidence themselves. Israeli government lawyers claim the settlements are legal, based on historical claims (stories in the Bible) and the assertion that the occupied Palestinian territories are terra nullius (nobody’s land) as Jordan and Egypt have relinquished their respective claims on the West Bank and Gaza.
But the International Court of Justice, the principal judicial organ of the United Nations, clearly stated in 2004 that the Jewish settlements in Palestinian territory are illegal under international law and that the Palestinian civilian population is entitled to the protection against colonization offered by the Geneva Conventions.
Below are screen-grabs of the documents we have obtained relating to Tuesday’s ICC referral:
