[7 January 2020] – On 20 December 2019, the Prosecutor at the International Criminal Court (ICC) concluded her 5-year preliminary examination into the situation in Palestine and announced that “there is a reasonable basis to believe that war crimes have been or are being committed”. The case has now been referred to a panel of judges to determine if there is jurisdiction to proceed to a formal investigation. A decision on this threshold jurisdictional question is expected within 120 days.
If the Court determines that it does have jurisdiction there is a plethora of potential cases to investigate including settlement construction and the situation in Gaza. One case that is likely to come under investigation is the forcible transfer of Palestinian children from the West Bank to prisons inside Israel in violation of Article 76 of the Fourth Geneva Convention and Articles 8 2(a)(vii) and 8 2(b)(viii) of the Rome Statute of the ICC.
The forcible transfer and/or unlawful detention of protected persons from occupied territory was designated a war crime following its widespread practice during the Second World War and can attract personal criminal liability. More recently, Russia’s practice of forcibly transferring Ukrainian detainees from occupied Crimea to prisons inside Russia has been criticized and sanctioned by, inter alia, the US, EU, UK, and Canada.
There are a number of reasons why the Court may find the case of the forcible transfer and/or unlawful detention of Palestinian children compelling:
- There is no dispute of fact that Palestinians from the West Bank have been forcibly transferred to prisons inside Israel for the past five decades. Based on Israeli Prison Service (IPS) data, 52 percent of Palestinian children detained in the past seven years were forcibly transferred. This figure rises to 83 percent in the case of adults. Conservative estimates suggest that at least 13,500 children have been transferred and/or unlawfully detained since June 1967.(1)
- There is no dispute of fact that the practice of forcibly transferring Palestinian children from the West Bank to prisons inside Israel forms part of a “plan or policy” for the purposes of the Rome Statute implemented by Israel’s Ministry of Public Security, among others.(2)
- The policy has been challenged on two occasions in Israel’s Supreme Court but rejected on both occasions on the basis that domestic law prevails over international law in cases of inconsistency. This argument provides no defence under international law. Accordingly, there are no reasonable prospects for a domestic remedy and the principle of complementarity does not arise.(3)
- Although the unlawful detention of those transferred takes place in the territory of Israel, the unlawful transfer itself occurs in whole, or in part, in the territory of the State of Palestine, a party to the Rome Statute.(4)
- There is evidence indicating that the State of Israel has no intention of changing this policy.(5)
It is relevant to note that while successive Israeli governments have argued that the Fourth Geneva Convention does not apply de jure in Palestine in order to defend settlement construction, the argument has been rejected by the UN Security Council and the International Court of Justice. Furthermore, the Israeli military itself continues to rely on the Convention as the legal basis for prosecuting Palestinians in military courts.
If the Court finds that it does have jurisdiction to proceed to a formal investigation then the list of potential suspects will include those personnel directly involved in the transfer as well as those giving the orders. It should be noted that Palestinian detainees are transferred back and forth across the Green Line each day to attend military court hearings potentially leading to an extensive list of potential suspects.
- This calculation is based on 3-years of data (2013-2015) provided by the Israeli military authorities indicating that an average of 501 children were indicted in the military courts each year (this calculation does not include children detained/arrested and transferred who were subsequently released without indictment.) and applying a transfer rate of 52 percent supplied by the Israeli Prison Service (260 children transferred each year multiplied by 52 years). It should also be noted that the detention rates between 2013-2015 were historically low (see https://is.gd/M3B8Q2).
- The Israeli Prison Service (IPS) is the national detention authority of Israel responsible for detaining Palestinians from the West Bank and falls under the authority of the Israeli Ministry of Public Security. See http://is.gd/pxjrK9
- The practice was first challenged in the Supreme Court in the Sejadia Case and more recently in the Yesh Din Case. In both cases the Supreme Court rejected the petitions based on the primacy of Israeli domestic law over provisions of international law where the two are in direct conflict. However, this position is without merit under international law by virtue of Article 27 of the Vienna Convention on the Law of Treaties, reflecting customary international law (Lagrand Case).
- On 1 January 2015, Palestine lodged a document with the ICC accepting the court’s jurisdiction since 13 June 2014 - https://is.gd/Df9UUz
- In February 2015, UNICEF published an update on the treatment of children held in Israeli military detention and referred to a statement made by the then military prosecutor in the West Bank, Lt. Col. Maurice Hirsch indicating that the policy will not be changed. UNICEF, Bulletin No. 2, February 2015. Available at: http://is.gd/ECGFkV . This statement appears confirmed by subsequent transfers.