International Criminal Court - Preliminary Examination into the Situation of Palestine

Referral by the State of Palestine Pursuant to Articlesl3(a) and 14 of the Rome Statute

1. On 16 January 2015, following the State of Palestine's article 12(3) declaration of 1 January 2015, the Prosecutor of the International Criminal Court announced the commencement of a preliminary examination of the Situation in Palestine to determine "whether there is a reasonable basis to proceed with an investigation".1 This is the third preliminary examination that the Office of the Prosecutor ("OTP") has undertaken in relation to Palestine.2 To date, none of these examinations has resulted in a decision to investigate.

2. Since the opening of the preliminary examination of the Situation in Palestine, Israel has continued unabated to commit crimes within the jurisdiction of the Court. It has done so brazenly in order to advance its settlement regime to an unprecedented level with the aim of pursuing its policy of displacement and replacement of the Palestinian people. This settlement policy has been carried out through the commission of multiple crimes within the Court's jurisdiction. It has been executed in the face of international condemnation of Israel's actions by the Secretary-General of the United Nations, the Security Council, and a wide range of other international fora.

3. The Israeli settlement regime represents much more than the physical structures that make up the actual housing units in a specific settlement. The physical structures are part of an entire settlement policy which is enacted, maintained, and expanded by top Israeli officials, governmental and military, and which encompasses a range of sub-policies and practices that allow for the planning, construction, expansion, maintenance, security and development of settlements. The unlawful occupation of the territory of the State of Palestine and the establishment and maintenance of settlements by Israel in Occupied Palestinian Territory ("OPT"), including East Jerusalem, has involved the enactment and maintenance of a multi-layered system of violence and intimidation against the Palestinian population, the destruction and unlawful appropriation of their properties, the severe violation of their fundamental rights on discriminatory grounds and the institutionalization of a separate structure of life and dual system of law and other measures deliberately intended to change the demographic composition of the OPT, including in particular in East Jerusalem. It has also involved the widespread and systematic attack on the Palestinian civilian population, through the commission of crimes, to create and perpetuate such a regime. These acts qualify under the Rome Statute as both war crimes and crimes against humanity.

4. As reflected in communications and twenty-five successive monthly reports submitted by the State of Palestine to the OTP,3 war crimes and crimes against humanity have continued to be committed on an aggravated basis throughout the period of the preliminary examination. The impunity of Israeli officials and Israeli nationals responsible for the commission of these crimes has contributed to the continuation, intensification and recurrence of these crimes.

5. The gravity and ongoing nature of this criminality, as well as the fact that State officials are involved in the commission of these crimes, calls for the Prosecution to conduct and finalise its investigation without delay, and with a view to bringing those responsible to justice.

6. It is thus necessary, on behalf of the citizens of the State of Palestine who have suffered for generations the consequences of crimes committed with impunity by Israeli officials and citizens, and who continue to suffer from ongoing, widespread and systematic crimes, for the State of Palestine to hereby exercise its right as a State Party to the Rome Statute to refer the Situation of Palestine for immediate investigation so that those most responsible for these crimes may be held accountable for their actions without further delay.

7. The State of Palestine stresses the importance of achieving justice for the victims of crimes, reaffirms its commitment to cooperate fully with the Court and maintains that ensuring justice and accountability is crucial to achieving peace, to deterring the commission of crimes, and to the integrity and credibility of the ICC itself. A failure to punish, let alone investigate, crimes associated with the unlawful occupation of Palestine has only emboldened perpetrators to carry on with their criminal deeds.

8. The present referral is without prejudice to the Prosecutor's ongoing duty and responsibility to continue and finalise her preliminary examination without delay in accordance with Article 53 of the Rome Statute regarding crimes currently the subject of her preliminary examination in the Situation of Palestine. However, given the acceleration of settlement-related crimes and their irreversible impact on the lives of Palestinians and on the prospects for a lasting peace, it is imperative that the OTP immediately commence an investigation into the crimes herein referred as its highest priority.