Detention figures – The Israeli Prison Service (IPS) stopped providing detailed monthly detention figures in accordance with a long-standing Freedom of Information application in October 2020. In its place the IPS publishes less detailed quarterly figures on its website. This data no longer includes information regarding the location of detention. According to the IPS, as of 30 September 2020, there were 4,184 Palestinians (West Bank, East Jerusalem, Gaza) held as “security prisoners” including 157 children (12-17 years). Two children were held in administrative detention. According to the IPS, 73% of child detainees were forcibly transferred and detained in Israel in violation of Article 76 of the Fourth Geneva Convention and Article 8 of the Rome Statute of the International Criminal Court. More statistics
ICC confirms territorial jurisdiction over Palestine -
In February the International Criminal Court handed down a decision
on territorial jurisdiction in Palestine. In a 2 to 1 ruling, Pre-Trial Chamber 1 held that the Court does have jurisdiction. The issue of jurisdiction was submitted to the Court in 2020 by the Prosecutor's Office following a 6-year preliminary examination which determined that: “[T]here is a reasonable basis to believe that war crimes have been committed in the West Bank, including East Jerusalem, and the Gaza Strip." Notwithstanding this view, the Prosecutor referred the question of jurisdiction to the Court to place the investigation on the "soundest legal foundation." The question before the Court was whether Palestine is a State solely for the purposes of the Rome Statute and paves the way for possible prosecution of Palestinians and Israelis.
A "rules-based" order? -
Following the ICC's decision on jurisdiction, a number of events suggest an "interest-based" order is still favoured over a "rules-based" approach. First, while the Biden Administration seeks to distance itself from previous policies, Trump's Executive Orders sanctioning
the ICC appear yet to be rescinded. Secondly, Germany's Foreign Minister recently expressed an opinion
that the Court has no jurisdiction even after the Court issued a ruling to the contrary. Germany was one of 7 States approached by Israel to make submissions seeking to block Palestinian legal redress.[i]
Finally, reports indicate that Israel has contacted some States seeking assurances that advance warning of arrest warrants will be provided. It is unclear which States have provided assurances
and whether such assurances will also be given to Palestinian suspects.
Two potential cases before the ICC involve no dispute of fact -
While many factual issues relating to the Israeli/Palestinian conflict are disputed, two potential cases before the ICC involve no dispute of fact. The first case concerns Israel's 53-year policy of transferring Palestinian detainees from the West Bank to prisons in Israel in violation of Article 76
of the Fourth Geneva Convention. A similar policy adopted by Russia of transferring Ukrainian prisoners from Crimea to Russia has attracted near universal condemnation
and targeted sanctions. Until October 2020, evidence of transfer was provided by the IPS in its monthly detention statistics
. The second case involves Israel's 53-year policy of building settlements in East Jerusalem and the West Bank in violation of Article 49
of the Convention, around 40 UN Security Council resolutions
and an Advisory Opinion
of the International Court of Justice. Read more
Overt contempt for the rule of law -
Arguments employed by successive Israeli governments to persuade some that settlement construction in the West Bank is not illegal hinge on making the case that the Fourth Geneva Convention does not apply. While this argument would be summarily dismissed in a court of law, it does gain some traction within political circles. One shortcoming of the argument is that Israel still relies on the Convention to justify prosecuting Palestinian civilians, including children, in military courts. The military order establishing the courts in 1967 expressly referenced the Convention as its legal basis and as of 9 January 2021, officials at Ofer military court near Jerusalem continue to distribute an information sheet
relying on the Convention in a breathtaking display of cherry-picking legal obligations.
Israel to Brief Hundreds of Defense Officials, Fearing They May Be Arrested After ICC Ruling -
Israel had prepared a confidential list of officials who might be wanted by the international court, in the wake of decision on possible war crimes. Officials say several member states have agreed to warn Israel of any plan to arrest Israelis. Hundreds of senior Israeli security officials are expected to be called in for briefings following a decision by the International Criminal Court in The Hague that allows investigations of alleged war crimes by Israel to proceed, fearing they may be arrested abroad. In July, Haaretz reported that Israel had prepared a confidential list of decision makers and senior military and security officials who might be arrested abroad. Israel is keeping the list strictly confidential over concern that exposing it could put the people on the list at risk. Haaretz
A child's testimony -
On 29 October 2020, a 14-year-old minor from Beit Jala was arrested by Israeli soldiers near a military base. He reports being interrogated without first being informed of his right to consult with a lawyer or his right to silence.
"I was with my cousin and a friend walking past the military base at the entrance to Beit Jala village. It was around 10:30 p.m. Suddenly a group of soldiers approached us and took us into the base. A soldier slapped me on the face and forced me to the ground face down. He also swore at me calling me "a son of a whore". My hands were then handcuffed behind my back and the cuffs were tightened hard causing me pain." Read more Note: This boy was subsequently transferred to Megiddo prison inside Israel in violation of the Fourth Geneva Convention and Rome Statute of the International Criminal Court
A soldier’s testimony - "That's us" -
In this video a former female Israeli soldier provides a testimony to Breaking the Silence describing abuse as routine. "Our violent behavior eventually included daily abuse of the Palestinian residents, daily delays of Palestinians and Palestinian families. Children, parents, adults and aged people at the posts for hours on end. It was about taking prisoners and putting cigarettes out on them, not giving them any water or food for days, abusing them with physical blows, tightening the restraints on their hands and legs, hassling them to get and sit down, get up and sit down, run and lie down and ... Think about a person tied up before you. Every attempt to get up and sit down is difficult for him, so think what happens when he does it 50 times in 5 minutes." Watch video
The 7 countries that responded to Israel's request to make submissions seeking to restrict Palestinian access to the Court were: Uganda, Brazil, Germany, Hungary, Austria, Czech Republic and Australia. A senior Australian diplomat confirmed in a Senate committee meeting that Australia acted after Israel “encouraged us to make observations” to the court regarding the investigation into war crimes in Palestine. (The Guardian, Australian government tells ICC it should not investigate war crimes in Palestine, 20 May 2020 - available at https://is.gd/Qj5kcP