Anniversary of ICC decision on jurisdiction
[28 February 2022] – This month marked the first anniversary since the International Criminal Court (ICC) determined that it possesses territorial jurisdiction over the territories occupied by Israel in 1967, including the West Bank, East Jerusalem and the Gaza Strip (Palestinian Territories). Following the Court's decision the Office of the Prosecutor of the ICC announced the opening of a formal investigation into possible war crimes in the Palestinian Territories committed by both sides since June 2014.
Immediately following the ICC's ruling Israeli media reported that "senior security officials said a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis on their arrival in those countries or if a request for an arrest warrant is issued." Subsequently, the United Kingdom and Germany indicated rejection of the Court's jurisdiction and although not a state party, the Biden Administration has also reportedly been lobbying to block access. It should be noted that these states are not alone in seeking to restrict access to the Court.
Two situations relating to Palestinian child detainees have been referred to the Office of the Prosecutor and fall within the jurisdiction of the Court.
- The forcible transfer of child detainees: Since 1967 the majority of Palestinian children detained by Israel have been transferred from the West Bank to prisons inside Israel in violation of the Fourth Geneva Convention and Rome Statute of the ICC. This practice was considered sufficiently serious following World War Two to be designated a war crime attracting personal criminal responsibility.[i] In the last 12 months it is estimated that between 320 and 640 children have been unlawfully transferred.[ii] Evidence relating to this issue was referred to the Office of the Prosecutor in March 2015.[iii]
- The systematic use of solitary confinement - Since 2019 there has been a surge in the reported number of cases of children being held in solitary confinement as part of the interrogation process. In approximately 20 percent of child detention cases children report being held alone in small, windowless cells for up to 30 days leading to self-harm and suicide attempts. The treatment reported falls within the definition of torture and other cruel, inhuman or degrading treatment or punishment. Evidence relating to this issue was referred to the Office of the Prosecutor in December 2021.
Whilst blocking legal accountability in favour of a strategic partner is understandable in an interests-based system, it is entirely inconsistent with a genuine rules-based order and erodes faith and confidence in the rules and institutions established since 1945.
[i] The West imposed targeted sanctions on Russia in 2014 in part for transferring Ukrainian prisoners out of annexed Crimea to prisons located inside the Russian Federation (See: The Guardian, The West must not abandon Crimea and Ukraine to Russian aggression, 27 February 2019 - available at: https://is.gd/peeRVn
[ii] This estimate is based on a detention rate of 500-1,000 children each year and applying the Israeli Prison Service transfer rate of 64 percent in 2021.
[iii] Since March 2015 it is estimated that between 2,240 and 4,480 children have been unlawfully transferred.