Forcible transfer of children continues 5-years after ICC initiates preliminary examination
[17 December 2019] – On 5 December 2019, the Prosecutor of the International Criminal Court (ICC), Mrs Fatou Bensouda, published her annual Report on Preliminary Examination Activities. The report details the preliminary examination activities carried out by the Office of the Prosecutor during the period 1 December 2018 - 30 November 2019 (reporting period), in relation to nine situations under consideration for possible investigation, including Israel and Palestine.
According to the report during the reporting period the Office of the Prosecutor has focused its analysis on alleged crimes committed by Israeli and Palestinian actors occurring in the West Bank, East Jerusalem and Gaza. The alleged crimes include, but are not limited to: settlement activity; transfer and deportation of civilians; torture; incitement; shooting demonstrators; use of human shields; and flying incendiary kites.
The alleged crimes referred to in the report generally involve substantial disputes of fact. However, in two circumstances, the facts are not disputed:
1. The forcible transfer and detention of Palestinian detainees from the West Bank in Israel; and
2. Continued Israeli settlement activity in East Jerusalem and the West Bank.
Forcible transfer of detainees including children: - Article 76 of the Fourth Geneva Convention (Convention) and Article 8 of the Rome Statute of the International Criminal Court (Rome Statute) prohibit the transfer and holding of detainees outside occupied territory. While in some fora the Government of Israel rejects the application of the Convention and the designation of the West Bank as “occupied territory”, Israel’s military authorities continue to rely on the Convention to justify prosecuting Palestinian civilians in military courts.
According to data published by the Israeli Prison Service, 4,731 Palestinians, including 185 children, were held as “security prisoners” in October 2019, of which 83 percent of the adults and 59 percent of the children were forcibly transferred and/or unlawfully detained inside Israel. This policy of transfer has twice been challenged in Israel’s Supreme Court. The petitions were rejected on both occasions based on the primacy of Israeli domestic law over provisions of international law where the two are in direct conflict. However, this position is not maintainable under international law by virtue of Article 27 of the Vienna Conveniton on the Law of Treaties.
Since the Office of the Prosecutor announced the opening of a preliminary examination into the situation in Palestine, it is estimated that over 16,000 Palestinian detainees have been forcibly transferred to prisons located in Israel including about 2,000 children. These numbers continue to rise on a daily basis.
Settlement activity in East Jerusalem and the West Bank – Article 49 of the Convention prohibits settlement activity in the West Bank and East Jerusalem. This prohibition has been confirmed in over 40 UN Security Council resolutions adopted since 1967 and by the International Court of Justice in an advisory opinion. Since the Office of the Prosecutor announced the opening of a preliminary examination into the situation in Palestine five years ago, it is estimated that the number of settlers has increased by approximately 70,000. This number continues to rise on a daily basis.
The ICC report concludes that: “While the situation has been under preliminary examination for almost five years and has benefitted from meaningful and constructive engagement with both the Palestinian and Israeli authorities, as well as numerous other actors, which have helped deepen the Office’s understanding and assessment of the situation, the Prosecutor also believes that it is time to take the necessary steps to bring the preliminary examination to a conclusion.”
Finally, the Office of the Prosecutor has chosen to use different language in the report when assessing the situations in Palestine and Ukraine in circumstances where the facts are similar and the legal principles identical. For example, when assessing Ukraine the report unambiguously refers to the situation in Crimea as an “occupation” and expressly refers to the transfer and unlawful confinement of detainees from Ukraine as possible violations of articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. In relation to Palestine, the report simply states that following June 1967, Israel “acquired control over a number of territories” but does not use the legally significant word “occupation”. Further, the report makes no specific reference to the forcible transfer of detainees from the West Bank in circumstances where it is occurring on a larger scale and duration than in Ukraine.
For the purposes of transparency and confidence in the integrity of the institution, it would be helpful if the Office of the Prosecutor explained the basis for these differences.
- ICC Report on Preliminary Examination Activities 2019
- ICC Report on Preliminary Examination Activities 2018
- ICC Report on Preliminary Examination Activities 2017
- ICC Report on Preliminary Examination Activities 2016
- According to data obtained under a Freedom of Information application, in 2017 there were 10,454 indictments in the military courts. Of these indictments, 56% related to traffic offences which generally do not involve a custodial sentence. Of the 4,600 non-traffic offence related indictments, it is estimated that 85% received custodial sentences. Of the 3,909 indictments that received custodial sentences, IPS data indicates that 83% were transferred to prisons inside Israel, or 3,244 individuals transferred in 2017. This suggests that the number of individuals forcibly transferred since January 2015 to be about 16,200 (assuming a constant rate). It should be noted that this figure does not include Palestinian prisoners transferred prior to 2015 who continued to serve their sentences inside Israel after 2015, constituting an unlawful detention outside occupied territory by virtue of articles 76, 146 and 147 of the Fourth Geneva Convention.
- According to PeaceNow, in 2015 there were 597,460 Israeli settlers in East Jerusalem and the West Bank. This figure rose to 669,214 settlers at the end of 2019, representing an increase of 71,754. (At the time of writing PeaceNow's website was updated to the end of 2018, indicating a settler population of 647,836. According a Times of Israel article, the growth rate for the settler population in the West Bank in 2019 was 3.3%.