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The Prosecutor of the International Criminal Court issues her annual Report on Preliminary Examination Activities (2017)

[19 December 2017] - On 4 December 2017 the Prosecutor of the International Criminal Court ("the Prosecutor") Mrs Fatou Bensouda, published her annual Report on Preliminary Examination Activities (2017).  The report provides an overview of the Office of the Prosecutor's ("OTP") preliminary examination activities conducted between 1 October 2016 and 30 November 2017 in relation to 10 situations under consideration for possible investigation, including Palestine.

The report provides a summary of the current status of each situation under preliminary examination, including the OTP's current analyses with regard to issues of jurisdiction and admissibility, as well as the activities carried out by the OTP in 2017 in order to further this work. 
 
Introduction
 
The Prosecutor is responsible for determining whether a situation meets the legal criteria established by the Rome Statute to warrant a formal investigation by the OTP. For this purpose the OTP conducts a preliminary examination of all communications and situations that come to its attention based on the statutory criteria and information available. The preliminary examination may be initiated on the basis of:
 
(a)     Information sent by individuals, groups or States;
(b)     A referral by a State Party or the UN Security Council; or
(c)     A declaration by a State accepting the Court's jurisdiction.
 
Once a situation has been identified the Prosecutor considers whether there is a reasonable basis to proceed with a formal investigation based on:
  1. Jurisdiction - This relates to whether a crime within the jurisdiction of the court has been or is being committed and includes temporal, territorial or personal jurisdiction as well as subject matter jurisdiction;
     
  2. Admissibility - This comprises both complementarity and gravity. Complementarity involves an examination of whether there are viable domestic remedies available. Gravity includes an assessment of the scale, nature, manner of commission of the crimes, and their impact; and
     
  3. Interests of justice - The OTP must assess whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
There are no timelines provided in the Rome Statute for a decision on a preliminary examination. Depending on the facts and circumstances of each situation, the OTP may either decide (i) to decline to initiate an investigation where the information manifestly fails to satisfy the factors set out in article 53(1) (a)-(c); (ii) to continue to collect information in order to establish a sufficient factual and legal basis to render a determination; or (iii) to initiate the investigation, subject to judicial review as appropriate.
 
Palestine
 
The situation in Palestine has been under preliminary examination since 16 January 2015. The OTP has received 98 communications pursuant to article 15 in relation to the situation in Palestine since 13 June 2014. In her latest update the Prosecutor mainly focuses on settlement activity in East Jerusalem and the West Bank and alleged war crimes that took place during the 2014 war in Gaza. The Prosecutor noted that this focus should not be interpreted as excluding other areas of investigation.
 
In relation to the settlements, the Prosecutor noted that "Israel considers that the [West Bank] should not be viewed as occupied territory but as a “disputed territory”, subject to competing claims, whose status will ultimately be resolved in the course of peace process negotiations. For this reason, Israel has taken the position to reject the de jure application of the Geneva Conventions to the territory but to apply humanitarian provisions de facto." While this description provided by the Prosecutor accurately represents the position articulated by the Israeli Ministry of Foreign Affairs, it should be noted that the Israeli military authorities in the West Bank take the opposite position and expressly rely on the de jure application of the Fourth Geneva Convention to justify the prosecution of Palestinian civilians, including children, in military courts.
 
Since the Prosecutor opened a preliminary examination into the situation in Palestine it is estimated that the number of Israeli settlers living in East Jerusalem and the West Bank in violation of article 8 (2)(b)(viii) of the Rome Statute has increased by approximately 73,500.[i] During the same period it is estimated that approximately 21,000 Palestinian men, women and children have been transferred and detained inside Israel in violation of article 8(2)(a)(vii) of the Statute.[ii] In both situations there is no dispute of fact or viable domestic remedy.
 
Conclusion and next steps
 
According to the Prosecutor's update "The Office has made significant progress in its assessment of the relevant factual and legal matters necessary for the determination of whether there is a reasonable basis to proceed with an investigation. In particular, the Office has reviewed thousands of pages of material and drafted multiple analytical products. This assessment will continue, under the strict guidance of the Statute and with a view to reaching conclusions on jurisdictional issues within a reasonable time frame. In accordance with its policy on preliminary examinations, the Office will also assess information on potentially relevant national proceedings, as necessary and appropriate. Any alleged crimes occurring in the future in the context of the same situation could also be included in the Office’s analysis."
 
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[i] Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, 16 March 2017, A/HRC/34/39. The report refers to 594,000 settlers in East Jerusalem and the West Bank at the end of 2015. Applying a population growth rate in the settlements of 4.1% used by the Israeli Bureau of Statistics suggests a settler population of 570,240 in January 2015 growing to 643,705 in December 2017 - the difference being 73,465.
 
[ii] According to data released by the Israeli Prison Service (IPS) 88% of Palestinian detainees are currently being transferred and detained inside Israel each year.