In December 2019, the Prosecutor of the International Criminal Court, Fatou Bensouda, concluded there was sufficient basis for launching a criminal investigation against Israelis on suspicion of war crimes with respect to the establishment and expansion of settlements; several incidents that occurred during Operation Protective Edge, in which the Prosecutor believed disproportionate use of force was suspected; and finally, regarding suspicion that the use of firearms against March of Return demonstrators near the Gaza perimeter fence was a war crime as well. The Prosecutor also noted there was a basis for an investigation against members of Hamas and other Palestinian armed groups for suspected war crimes, including attacks on civilians and civilian objects, use of human shields and torture.
On February 5, 2021, the court’s Pre-Trial Chamber released its ruling, given at the Prosecutor’s request, that the ICC has jurisdiction to investigate and prosecute crimes committed in East Jerusalem, the West Bank and the Gaza Strip.
As an Israeli organization working to defend the human rights of Palestinians in the Occupied Territories, particularly with respect to law enforcement, we lament the Israeli policies and practices that have resulted in this preventable low point. At the same time, we are convinced that given Israel’s ongoing failure to investigate suspected breaches of the laws of war and occupation, an international investigation is unavoidable, and, therefore, welcome the decision of the ICC.
The ICC can intervene only in cases in which enforcement authorities in the country in question are unwilling or unable to carry out a genuine, immediate and serious investigation when its agents are suspected of having committed crimes over which the court has jurisdiction (including war crimes) or bring those responsible to justice. This is the complementarity principle. Years of monitoring military investigations, filing petitions to the High Court of Justice and providing legal assistance to Palestinian crime victims have led us to the unfortunate conclusion that the Israeli law enforcement system fails to protect Palestinians in the Occupied Territories and their human rights. Israeli soldiers enjoy near complete immunity from prosecution when they harm Palestinians. This conclusion is based on figures we receive from the military every year, information drawn from the legal assistance we have provided in hundreds of complaints Palestinians filed regarding specific incidents and years of studying hundreds of investigation cases.
The figures show that about 80% of the complaints filed by Palestinians regarding harm by soldiers are closed without a criminal investigation. Among the few investigations that are launched, only 3.2% result in the indictment and prosecution of the soldiers responsible. This means that the chances a complaint filed by a Palestinian will be properly investigated and result in an indictment is less than one percent (0.7%). These figures are indicative of significant flaws in the law enforcement system and its profound failure to protect Palestinians. These figures and others like them have been published by Yesh Din every year and brought to the attention of enforcement agencies, but none of this has resulted in any substantive changes in their operations.
Beyond the figures, Yesh Din’s legal team has reviewed hundreds of investigation files over the years and uncovered fundamental flaws and omissions, including failure to perform elementary investigative tasks, extremely lax timetables and more. Furthermore, systemic deficiencies, such as the absence of command responsibility in Israeli law, the potential conflict of interests resulting from the lack of separation between the Military Advocate General’s advisory and enforcement roles, and others, undermine the ability to investigate and prosecute individuals who commit war crimes. The aforesaid leads to the conclusion that military investigations fail to meet international standards, according to which an investigation must be (among other things) – expeditious, effective, professional and impartial.
The failure of Israel’s law enforcement system is glaringly apparent in the figures Yesh Din published about failures in the processing of complaints regarding the killing and wounding of Palestinians during the Gaza Strip Great March of Return protests and the use of the Fact-Finding Assessment Mechanism to thwart the investigation and prosecution of soldiers. According to figures we have received from the military, as of March 2020: two years after the incidents began, about 80% of those forwarded to the General Staff Mechanism for Fact-Finding Assessments (FFA Mechanism) are still under review; 234 Palestinian deaths have so far resulted in only 17 investigations, most of which are still open; the military has not investigated a single case of injury, including serious injuries; only one indictment has been served against a soldier concerning an incident in which a Palestinian protestor was killed, a 14-year-old, on disciplinary charges that are not connected to the death. These findings reveal failures in every phase of the inquiry and investigation. (See: Killing Time).
Early into the March of Return protests, Yesh Din, together with The Association for Civil Rights in Israel, Gisha and HaMoked: Center for the Defence of the Individual, filed an urgent High Court petition arguing the rules of engagement used in the Gaza protests, which permitted live fire against protestors and had resulted in hundreds of deaths and thousands of injuries, were a breach of international law and must be changed (another petition was filed by Adalah and Al Mezan Center for Human Rights). The petition argued that the rules of engagement gave soldiers illegal and unprecedented license to use potentially lethal fire (such as live sniper fire) against protestors even when they clearly posed no threat to human life. The petitions were dismissed by the High Court (see HCJ 3003/18). With that, the court sanctioned the military’s deadly policy and, ultimately, opened the door for Israel’s investigation for suspected war crimes.
Yesh Din has also been engaged in a long legal and public battle in scores of cases relating to the expansion of the settlement enterprise, the takeover of privately owned Palestinian land in the West Bank and the resulting human rights violations against Palestinians. This ongoing effort has so far included scores of legal proceedings and High Court petitions challenging the official Government of Israel settlement policy, including the lack of law enforcement against unauthorized outposts, which is a brazen violation of international humanitarian law. The outcomes in these cases show that even in the rare instances in which a petition is accepted and the court grants the patitioners the requested remedy (usually after a long legal process), Israeli authorities do everything they can to delay or avoid implementing the court decision. Moreover, in many cases in which privately owned Palestinian land was freed from settler invasion, military authorities prevent the landowners from exercising their right to return to their lands, using various tools to deny or restrict access, as it did, for example, in the case of the evacuated settlement of Homesh. All of these are added to Israel’s longstanding official policy of building settlements on public land in the West Bank – in which the High Court of Justice declined to intervene, taking the position that the issue was non-justiciable (HCJ 4481/19).
Not only that, but High Court decisions have sometimes resulted in the expansion of Israeli settlements in the West Bank, helped them become established and even upheld practices designed to retroactively approve unauthorized outposts (for instance, in the case of Adei Ad, HCJ 8395/14 and the illegal construction on the land of Kafr Aqab, HCJ 5426/17). In so doing, the High Court of Justice is aiding Israel’s creeping (de facto) annexation of the West Bank, a process founded on the settelment project.
The failures of the law enforcement and justice systems indicate a lack of will to hold individuals responsible for breaking the law accountable and attest to a policy of turning a blind eye to offenses against Palestinians and their property. This policy is deliberate – a result of the fact that these offenses are committed in the wider context of Israel’s ambition to expand its control of West Bank lands and preserve its domination over the millions of Palestinians living there.
Given all this, Yesh Din believes that launching an investigation into suspected war crimes by Israel is necessary, important and right. We hope the ICC’s decision puts an end to the culture of impunity that has developed in Israel, ushers in a process towards increased observance of international law, and, consequently, significantly improve human rights protections for Palestinians and Israelis alike.