On Tuesday Palestinian Authority Foreign Minister Riyad al-Malki met with Fatou Bensouda, the International Criminal Court’s chief prosecutor, at The Hague and called for a formal referral stating Israel had violated international law.
The Palestinian Authority stated it believes the ICC “is the competent authority to investigate the ongoing Israeli crimes associated with the illegal colonial settlement regime and to prosecute those criminals who commit such crimes”.
Mr Al-Malki said that "this referral is Palestine's test to the international mechanism of accountability and respect for international law”.
Ms Bensouda responded by saying that a referral "does not automatically lead to the opening of an investigation." The chief prosecutor can however choose to investigate the situation without the approval of the Pre-Trial Chamber of the Court.
The call for a formal investigation follows the US declaration that Jerusalem was the capital of Israel and the transfer of the US embassy to Jerusalem on May 14. The move was met with widespread protests by Palestinians for weeks, and Israeli forces killing some 60 protestors. Omar Shakir, the Israel-Palestine director at New York-based Human Rights Watch, has reported that since March 30 approximately 111 Palestinian demonstrators have been killed in Gaza.
Israel’s foreign minister responded to the call for an ICC investigation by stating:
“The purported Palestinian referral is legally invalid, and the ICC lacks jurisdiction over the Israeli-Palestinian issue, since Israeli is not a member of the Court and because the Palestinian Authority is not a state”.
“Israel expects the ICC and its Prosecutors not to yield to Palestinian pressure, and stand firm against”.
Whilst Israel is not a member of the ICC court it could be tried for crimes committed on Palestinian territory. Palestine became an approved member of the ICC in April 2015 allowing the court jurisdiction over crimes committed in its territory since June 2014.
The ICC's Office of the Prosecutor already began a preliminary examination of the "situation in Palestine" in January 2015, to assess whether the criteria for a full investigation could be met.
This is the first time Palestinian authorities have referred a case to the ICC as it has often faced reprisals for doing so. Israel previously withheld millions of dollars in tax revenue from the Palestinian authorities for joining the ICC in 2015. The US and Israel have also repeatedly warned Palestine to not take up action in the ICC.
In their referral they specifically identify the following categories of crimes committed by Israel:
i. Crimes involving the unlawful appropriation and destruction of private and public properties, including land, houses and buildings, as well as natural resources;
ii. Crimes involving the forcible transfer of Palestinians, including by means of violence, compulsion, duress and the creation of inhumane living conditions;
iii. Crimes involving the unlawful transfer of the Israeli Occupying Power's population into Occupied Palestinian Territory;
iv. Crimes involving murders and unlawful attacks on civilians, including through excessive use of force and unlawful killings of Palestinians, including demonstrators exercising their right to protest;
v. Crimes involving the torture, cruel and inhumane treatment of Palestinians;
vi. Crimes involving persecution, including the grave, widespread and systematic denial or violation of basic human rights on discriminatory grounds against Palestinians, including those resulting in or intended to achieve the deportation or forcible transfer, directly or indirectly, of the Palestinian population, the re-populating of "cleansed" territories with Israeli settlers and the unlawful appropriation of Palestinian land and properties; and,
vii. Crimes involving the establishment of a system of apartheid based in particular on the adoption of discriminatory laws, policies and practices as well as the commission of inhumane acts intended to establish an institutionalised regime of separation and advancement of Israeli settlements accompanied by the systematic oppression and domination by Israeli settlers over Palestinians.
See the full text of the referral here.