Israel’s positions on Operation Protective Edge are detailed most fully in a government report presented to Prime Minister Benjamin Netanyahu on 14 June 2015, although several sections had been published online beforehand. The report, prepared by officials from the Ministry of Justice, Ministry of Foreign Affairs, Military Advocate General Corps, and other government and military bodies, argues that Israel’s military operations during the 2014 conflict adhered to international law. Among other points, the report claims that the military’s operational orders during the hostilities required compliance with international humanitarian law “at all times”, including the principles of distinction, proportionality, and precautions in attack, and that Israeli forces did not intentionally target civilians or civilian objects. It also makes several claims about Israeli forces’ use of high-explosive artillery, including 155mm diameter artillery shells and 120mm diameter mortars, during the hostilities. For example, the report states that military directives limited the use of high-explosive artillery in populated areas, requiring specific “safety margins” (distances from civilians) and only permitting the firing of such munitions near or into populated areas “on an exceptional basis, in certain exigent circumstances that created an imperative military necessity for artillery fire support”. It claims that in instances when high-explosive artillery was used in urban areas, it was done “in a restrained and calculated fashion” in areas “known to be largely evacuated”. As regards Israeli forces’ use of artillery in Rafah after the Hannibal Directive was invoked, particularly on 1 August 2014, the findings of Amnesty International and Forensic Architecture detailed in this report stand in stark contrast to these claims.
The information in Israel’s official report on the conflict on the actions of Israeli forces in Rafah on 1 August 2014 is quite limited. According to the report, after Lieutenant Hadar Goldin was discovered to be missing, the Israeli military warned Rafah residents through phone calls and text messages not to leave their homes, saying that “Whoever leaves his home risks injury and endangers his life”. Regarding the Hannibal Directive, the report states that it “does not grant permission to violate the Law of Armed Conflict, including the rules relating to distinction and proportionality”, that “the use of unrestrained force is not permitted, even in the direst of circumstances”, and that it explicitly prohibits actions intended to kill the kidnapped person.
The Israeli government report also includes a section on Israel’s investigations of alleged violations of international humanitarian law during the hostilities. As detailed below, while the Israeli military is examining numerous cases, one year after a conflict in which some 1,462 Palestinian civilians in the Gaza Strip were killed, including 551 children, only three Israeli soldiers have been indicted for one incident of looting. As with its investigations into violations in previous conflicts, Israel’s military investigations into Operation Protective Edge cannot be considered independent or impartial, and have been completely ineffective to date in securing a modicum of justice for victims.
The Israeli military established a General Staff Mechanism for Fact-Finding Assessments (FFAM) during the 2014 conflict to examine what it describes as “exceptional incidents” of alleged Israeli violations during the hostilities. The purpose of these investigations was said to be threefold: to reach decisions on whether to open a criminal investigation, for a “lessons-learned process”, and for “the issuance of operational recommendations that will assist in preventing exceptional incidents in the future”. The FFAM, headed by a Major General, collects information on these incidents, primarily from military sources and personnel, which is presented to Israel’s Military Advocate General (MAG), who then decides whether or not to open a criminal investigation into each incident. Since the conflict, the MAG has continued to refer incidents on which it has received complaints to the FFAM. Criminal investigations, when opened, are conducted by the Military Police Criminal Investigations Division, which presents information to the MAG, who decides whether or not to prosecute and on what charges.
Amnesty International has long-standing concerns that these investigations are not genuine, effective, independent, or impartial. All allegations of violations, including war crimes, are investigated within the military system, and the MAG remains the key decision maker at all stages of the process, despite the fact that he also had ultimate responsibility for overseeing the legal advice provided to Israeli forces operating during the conflict. Leading Israeli human rights organizations, among others, have heavily criticized this as a fundamental conflict of interest inherent in Israel’s system of military investigations.
To date, the MAG has issued four public updates on the military investigations into incidents during the 2014 conflict. According to the most recent update, issued on 11 June 2015, the MAG had ordered a criminal investigation in 15 cases where the facts indicated grounds for a reasonable suspicion of criminal misconduct, although two of these have been closed without any criminal or disciplinary proceedings. Some 190 other incidents had been referred to the FFAM, which had finished examining 105 of those cases. Of those, the MAG had ordered criminal investigations into seven incidents, closed 19 cases after concluding that there were no grounds to suspect any criminal acts by Israeli forces, and had yet to make a decision on the remainder.
The MAG has referred a handful of incidents involving the misuse of high-explosive artillery for examination by the FFAM, including at least one from Rafah on 1 August. The FFAM has forwarded its findings on each of these cases to the MAG for a decision on whether or not to order a criminal investigation. According to Israel’s official report on the conflict, the MAG has ordered criminal investigations into two incidents involving high-explosive artillery, has closed the case regarding another, and has yet to make a decision on the rest. The report does not clarify the locations of the two incidents where criminal investigations into the firing of high-explosive artillery have been opened, but any such investigation relating to actions by Israeli forces in Rafah on 1 August would have likely been reported in the media.
The only criminal investigation relating to events in Rafah in the period covered in this report known to Amnesty International so far concerns the abuse of two Rafah residents after they were detained by Israeli forces on 1 August. The MAG Corps received a complaint that two residents of Rafah were struck by Israeli soldiers without provocation while they were handcuffed and blindfolded; a criminal investigation was opened without a prior fact-finding assessment. Similar decisions have been taken in a limited number of other cases of incidents of looting or abuse of detainees elsewhere in the Gaza Strip during the hostilities, since such conduct is manifestly unlawful. However, even in such relatively straightforward cases, there is no guarantee that indictments will be filed; indeed, two criminal investigations into incidents of looting were closed without charges. More significantly, investigations in cases of abuse or looting are no substitute for criminal investigations into disproportionate or otherwise indiscriminate attacks which killed and injured civilians or destroyed civilian property, such as the cases documented in this report.
The cases that have been closed by the Israeli military – either without any criminal investigation, based solely on the findings of the FFAM, or where the criminal investigation concluded that Israeli forces had complied with international humanitarian law – include cases investigated by Amnesty International where there are serious concerns that Israeli forces violated international humanitarian law. For example, in March 2015, the MAG announced decisions to close criminal investigations into two different attacks on family homes, both without a warning: one on the al-Bakri home in al-Shati refugee camp on 4 August 2014, killing four civilians and wounding over 20, and another on the Abu Dahrouj home in al-Zuwayda on 23 August 2014, killing four civilians and injuring others. Amnesty International also investigated the missile strike which killed four boys from the al-Bakr family who were playing on the Gaza City beach on 16 July 2014; the most recent MAG update announced that the criminal investigation in that case had also been closed without any charges or disciplinary measures against those involved. The attack took place next to a hotel where many foreign journalists were based, video footage quickly emerged in which individuals targeted were clearly visible as children, and human rights organizations submitted testimonies from eyewitnesses to the Israeli military investigators. Yet no journalists who had witnessed and reported on the event were interviewed by the military investigators, and the MAG decision claimed that those killed could not have been visible as children to Israeli aerial surveillance.
In June 2015, the MAG announced a criminal investigation into allegations that Israeli forces had intentionally fired tank shells at a medical clinic in Shuja’iyyeh on 23 July 2014, and recently a senior officer in the Armoured Corps was questioned by military police investigators in relation to the case. However, an audio recording of this officer telling his troops to fire towards the clinic in honour of Captain Dima Levitas, who had been killed in Shuja’iyyeh the day before, was released by Israeli media on the day after the incident. It is unclear why the Israeli military only opened a criminal investigation almost a year later, since an intentional attack on a medical clinic without a warning clearly violates international humanitarian law, and could amount to a war crime. According to media reports, a handful of other senior officers are being questioned in relation to specific incidents during the hostilities, though it is unclear which ones. However, there is no evidence to suggest that the military investigations overseen by the MAG are examining policy decisions or military orders that allowed for the extensive use of artillery in residential areas in certain situations, the widespread targeting of inhabited family homes, or other policies that were likely unlawful and responsible for many civilian deaths.
While the MAG has not stated publicly how many complaints it has received about incidents during the 2014 conflict, significantly more complaints have been filed by human rights organizations than have been referred to the FFAM or for a criminal investigation, and in many cases the organizations have yet to receive a response. For example, the Palestinian Centre for Human Rights (PCHR), one of several NGOs submitting complaints, recently reported that it had filed complaints with the MAG on 244 incidents from the 2014 conflict, and received only 18 responses, with criminal investigations opened in less than half of those.
In addition, the failure of Israel’s military investigations to secure justice for Palestinian victims of Israeli violations, including war crimes, during previous Israel/Gaza conflicts, such as Operation Cast Lead in 2008-2009 and Operation Pillar of Defense in November 2012, has discouraged some Palestinian victims from the 2014 conflict from filing complaints with the Israeli military at all. Their concerns were echoed by leading Israeli human rights organization B’Tselem, which decided it did “not wish to play a role in the so-called investigation apparatus” by submitting complaints to the MAG on violations during the 2014 conflict, in part because its complaints following the two previous conflicts had not led to any measure of accountability. That said, when information on specific actions of Israeli forces that may have violated international humanitarian law is publicly available, an investigation should be opened even if no complaint has been received. While the MAG Corps has repeatedly stated that it “actively works to identify incidents warranting examination or investigation”, the information it has released so far indicates that few investigations have been opened pro-actively. Recent media reports indicate that investigations have been launched into a small number of incidents relating to testimonies published in a report by Israeli NGO Breaking the Silence, but it is unclear which incidents are being investigated, or whether the military authorities responded to information presented to them by the same NGO prior to publication of its report.
The limited number of incidents being examined by the Israeli military clearly do not cover all the potential violations of international humanitarian law by Israeli forces during the 50-day conflict, each of which should be independently and impartially investigated, nor do they address the crucial questions of responsibility at the command and policy level.
The MAG directed the FFAM to examine the events surrounding the capture of Lieutenant Hadar Goldin in Rafah on 1 August 2014, including actions allegedly taken by Israeli forces pursuant to the Hannibal Directive. According to Israel’s official report on the conflict, the FFAM provided its findings and collated materials to the MAG for a decision on whether to open a criminal investigation. However, the MAG has yet to announce a decision. Meanwhile, senior military commanders, as well as Israeli Minister of Defense Moshe Ya’alon, have publicly stated that no criminal investigation should be opened, creating a climate where it will be even more difficult for the MAG to take a truly independent decision. In January 2015, the Israeli Minister of Defense described the events of 1 August 2014 in Rafah as “an operational incident… not something that should be investigated according to criminal law. It should be investigated by the military command,” while then Chief of Staff Benny Gantz referred to Colonel Ofer Winter and other Givati Brigade commanders as “the best there are”. Head of Southern Command, Major General Sami Turgeman, has also opposed a criminal investigation on the actions of the forces under his chain of command in Rafah, claiming “we don’t need investigations of judgments made in the heat of combat. That would have a destructive influence in the future.”
Separately from the FFAM and as described elsewhere in this report, the Givati Brigade inquiry into events on 1 August 2014 in Rafah, like all operational inquiries conducted by the Israeli military, was designed to draw lessons for future combat operations, rather than to investigate potential violations. Like all such inquiries, its report has not been published, although information about some of the findings has been released to the media. The inquiry reportedly determined that Israeli forces fired an estimated 800 artillery shells and 260 mortars, and launched more than 30 aerial attacks, killing 41 people – though the precise time period covered by all those statistics is unclear from media reports – and that this use of fire was “proportionate” and meant to prevent the fighters who kidnapped Lieutenant Hadar Goldin from fleeing. As with all operational inquiries, the internal probe relied on statements given by soldiers within the brigade, which cannot be used as evidence in any future criminal investigation or judicial proceedings. The Givati Brigade inquiry cannot be considered to have met Israel’s obligations to ensure effective, independent and impartial investigations into allegations of crimes under international law and other serious violations documented in this report. If anything, it has been used to bolster those within the Israeli military, including senior officials, who have publicly opposed opening a criminal investigation into the events of 1 August, and may also have been used by soldiers within the brigade to co-ordinate accounts on particular incidents.
Previous Israeli military investigations of alleged violations of international law against Palestinians during Israeli offensives against the Gaza Strip have failed to meet the relevant international standards, since they have not been independent, impartial, effective, thorough, prompt or transparent.Since Operation Cast Lead, in December 2008 and January 2009, during which some 1,400 Palestinians – including more than 300 children and hundreds of other civilians – were killed, only three of some 52 criminal investigations have resulted in indictments, and the most serious punishment was for a soldier sentenced to 7.5 months’ detention for the theft of a credit card. Some of the criminal investigations lasted years, and in a few cases the conclusions remain unclear. The last MAG update known to Amnesty International on the status of investigations relating to the 2008-2009 conflict was published in 2011, but it is possible that there are cases from Operation Cast Lead on which the MAG has yet to make a decision, more than six and a half years after the conflict. In mid-2012, the MAG informed the Turkel Commission, appointed by the Israeli government to examine Israel’s mechanisms for investigating alleged violations of international humanitarian law, that seven criminal investigations relating to Operation Cast Lead were still pending. In September 2014, the Israeli NGO B’Tselem reported that it was aware of at least one case of civilians killed in the 2008-2009 conflict in which the MAG had yet to decide whether to open an investigation.
After Israel’s eight-day Operation Pillar of Defense in November 2012, in which more than 30 children and some 70 other civilians in the Gaza Strip were killed, the Chief of Staff appointed Major General Noam Tibon to head a military commission examining alleged violations during the hostilities. The commission sent its findings on more than 80 cases to the MAG for a decision on whether to open a criminal investigation. The only MAG update on cases relating to Operation Pillar of Defense, issued in April 2013, reported that in 65 cases examined by the MAG, no justification was found for launching a criminal investigation, and that for approximately 15 other incidents, the commission’s findings were still awaiting review. Cases closed by the MAG that Amnesty International had documented and believes should have been independently investigated as possible war crimes include: the bombing of the al-Dalu family home, which killed 10 family members and two neighbours; the missile strike on the al-Shawwa family apartment, which killed four civilians and injured others; and an attack without warning on the Jordanian field hospital in Gaza City. The MAG has issued no further updates relating to cases from Operation Pillar of Defense, and over two and a half years since the conflict, no criminal investigations have been opened.
While the Turkel Commission’s second report, issued in February 2013, contended that Israel’s examination and investigation mechanisms “generally comply with the obligations of the State of Israel under the rules of international law”, it made 18 recommendations (some of which included multiple actions) to improve Israel’s investigation systems. Some of the report’s conclusions and recommendations concern flaws local and international human rights groups had highlighted for years. These include: the absence of many crimes under international law and stipulations imposing criminal liability on military commanders and civilian superiors from Israeli law; the use of operational debriefings as a basis to decide on whether to open a criminal investigation; the lack of a time frame for the MAG’s decisions on the different stages of a military investigation and for decisions by the Attorney General regarding appeals on decisions of the MAG; and the fact that the MAG is appointed on recommendation of the Israeli military’s Chief of Staff. Israeli human rights groups have argued that the Turkel Commission’s recommendations did not address systemic issues including the system’s inability to investigate senior military or political officials and the conflict of interest inherent in the MAG’s dual roles in overseeing the military investigations system and the provision of legal advice prior to and during hostilities. Amnesty International shares these concerns, but agrees with the UN Human Rights Committee that full implementation of the Turkel Commission’s recommendations would be an initial step in the right direction.
More than two years after the Turkel Commission’s second report was issued, the Israeli authorities have made limited changes to the system of military investigations in line with some its recommendations, such as the establishment of the FFAM. In early 2014, an inter-agency committee was created to consider implementation of the Commission’s recommendations; in June 2015, Israel’s official report on Operation Protective Edge stated that this committee was expected to conclude its work “in the near future”. However, there is nothing to suggest that the fundamental conflict of interest inherent in having the MAG oversee the investigations has been addressed, which means the military investigations system still cannot be considered independent or impartial. Although in theory Israel’s Attorney General can overturn decisions of the MAG to close specific investigations, a possibility stressed by both the Turkel Commission and Israel’s official report on the 2014 conflict, Amnesty International does not know of an investigation relating to an alleged Israeli violation during hostilities in the Gaza Strip where this has happened in practice.
The history of failures by the Israeli military authorities to conduct credible and effective investigations into allegations of serious violations of international law during previous hostilities in the Gaza Strip, the limited implementation of the Turkel Commission’s recommendations, and clear gaps and flaws in the current military investigations raise serious concerns about the genuineness of these efforts. Accordingly, Amnesty International agrees with the conclusion of the Israeli human rights organization B’Tselem that “there is currently no official body in Israel capable of conducting independent investigations of suspected violations of international humanitarian law”.
The Israeli government has steadfastly refused to establish an independent commission of inquiry to examine specific violations, military orders, rules of engagement, and policy decisions during the conflict, despite repeated calls for one, or an equivalent investigatory mechanism independent of the military and government decision makers, by Israeli human rights NGOs and others during and after the conflict. While the Turkel Commission’s second report makes much of the fact that Israeli commissions of inquiry can be an independent investigative mechanism, the government must first agree to establish one, and there is no indication that the current Israeli government will do so for Operation Protective Edge.
Two Israeli governmental inquiries relating to the 2014 Gaza conflict, which are separate from the military investigations detailed above, were announced in August 2014. The Knesset Foreign Affairs and Defense Committee set up a subcommittee to inquire into Operation Protective Edge. According to Israeli media reports, the purpose of the subcommittee’s inquiry was to learn lessons from the operation and assess Israel’s intelligence and military preparedness, among other matters, and its conclusions were to be published in January 2015. The subcommittee held closed hearings and questioned senior government and military officials. However, due to pressure from lawmakers from Prime Minister Benjamin Netanyahu’s Likud party, the Knesset Foreign Affairs and Defense Committee is no longer expected to issue a report on its inquiry, according to Israeli media, and the inquiry has essentially been shelved.
On 13 August 2014, the State Comptroller, a role which also functions as an ombudsman and is currently held by Judge Joseph Shapira, announced that, in light of allegations that Israeli forces breached international law, he intended to investigate the “decision-making process and oversight mechanisms” employed by the country’s political and military leadership before and during Operation Protective Edge. At the end of October, Judge Shapira and high-ranking members of his office met Prime Minister Netanyahu to set the issues to be covered by the inquiry, which would include the Prime Minister’s decision-making process and his actions during Operation Protective Edge. In a November 2014 letter to Amnesty International, the State Comptroller said that the inquiry would be “into the decision-making processes on the military and political level during the operation and the investigation mechanisms of the IDF and the government regarding complaints and claims of violations of the laws of armed conflict according to international law”.
The State Comptroller regularly investigates Israeli government policies, actions, and decision-making processes on various issues, but does not usually investigate violations of international humanitarian law, and was therefore not one of the investigative mechanisms assessed by the Turkel Commission in its second report. The State Comptroller has announced that three legal experts will assist the inquiry; one of the three was involved in drafting the Israeli military’s code of ethics, while another was a member of the Turkel Commission. A brief government announcement reported that Prime Minister Benjamin Netanyahu and his staff met with the State Comptroller and his assistants as part of the inquiry on 7 July 2015. Few additional details about the State Comptroller’s inquiry have been released, and the timing of its report – or even if the report will indeed be made public – are unclear. Amnesty International agrees with the UN Independent Commission of Inquiry on the 2014 Gaza Conflict, which concluded that the State Comptroller’s inquiry should be supplemented by mechanisms, including criminal proceedings, “that aim, where appropriate, to hold to account individuals who may have played a role in wrong-doing, regardless of their position in the hierarchy”, but that no such investigations of senior officials have been announced.
The UN Independent Commission of Inquiry on the 2014 Gaza Conflict, established by the Human Rights Council in July 2014, published its report on 22 June 2015. The Commission of Inquiry was tasked with investigating all violations of international law “in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before during or after”, and interpreted its mandate as covering the actions of Palestinian armed groups and Israeli forces. The Commission found that both Israel and Palestinian armed groups had committed serious violations of international law during the hostilities, including possible war crimes. Among other findings, it concluded that “impunity prevails across the board” for violations of international law by Israeli forces in both the Gaza Strip and the West Bank, and that “Israel must break with its recent lamentable track record in holding wrongdoers accountable”. It also noted that “in many cases, individual soldiers may have been following agreed military policy, but it may be that the policy itself violates the laws of war”, that potential violations of international humanitarian law by Israel’s political and military leadership “may amount to war crimes”, and that Israel’s current accountability mechanisms may well be inadequate to address these issues.
Israel did not co-operate with the Commission of Inquiry, ignoring its repeated requests for information and access to Israel and the Occupied Palestinian Territories, which forced the Commission to conduct interviews in Amman and Geneva, as well as by Skype, videoconference, and telephone. In November 2014, Israel’s Ministry of Foreign Affairs officially announced that the government would not co-operate with the “UNHRC investigative committee”, due to “the council’s obsessive hostility towards Israel, the committee’s one-sided mandate and the publicly expressed anti-Israel positions of the committee's chair.” Israel’s decision not to allow access to Gaza to the Commission of Inquiry, or to researchers from Amnesty International and other international human rights organizations, strengthens the impression that it continues to oppose genuine investigations of its actions during Operation Protective Edge, including those which appear to amount to war crimes.
In February 2015, following a concerted campaign by the Israeli government and organizations supporting it, Professor William Schabas resigned as chair, and the President of the Human Rights Council appointed Justice Mary McGowan Davis, already a member of the Commission, as its chair. After the Commission’s report was published, it was dismissed as a “flawed and biased” report with the “aim of undermining Israel’s right to defend its citizens” by Prime Minister Benjamin Netanyahu, Deputy Foreign Minister Tzipi Hotovely, and other officials. Amnesty International completely rejects Israel’s claims about the Commission of Inquiry and deplores its denial of access to the Commission and other international investigators, which are the latest unfortunate moves in a sustained pattern of Israeli non-co-operation with UN mechanisms and investigatory committees.
On 3 July 2015, the Human Rights Council passed a carefully phrased resolution deploring civilian deaths on both sides during the conflict, welcoming the Commission of Inquiry’s report, and calling for implementation of its recommendations, and for full co-operation with the ICC’s preliminary examination and any subsequent investigation. The resolution also called on all states to fulfil their obligations under the Fourth Geneva Convention to ensure respect for international humanitarian law in the Occupied Palestinian Territories and to prosecute those responsible for grave breaches of the Convention. Finally, the resolution requested that the UN High Commissioner for Human Rights report on its implementation, as well as on implementation of the recommendations of the 2014 Commission of Inquiry and the 2009 UN Fact-Finding Mission on the Gaza Conflict, at the Council’s 31st session in March 2016. Although the resolution did not contain additional steps that Amnesty International had recommended, such as requesting that the General Assembly submit the reports of the 2014 Commission of Inquiry and the 2009 UN Fact-Finding Mission to the Security Council, it provides an important basis for moving towards accountability. European Union members on the Council were among the 41 states supporting the resolution, with five states abstaining and only the USA opposed. Israeli Prime Minister Netanyahu characterized the resolution as condemning Israel “for defending itself from a murderous terrorist organization” and again claimed that Israel “acts in accordance with international law”.
Israel agreed to co-operate with a separate UN Headquarters Board of Inquiry, set up by UN Secretary-General Ban Ki-moon in November 2014 to investigate specific incidents of deaths, injuries and damage at UN premises in Gaza, as well as incidents where weapons were found on UN premises. It was not established as a judicial body that would arrive at legal conclusions or pose questions of legal liability. On 27 April 2015, the UN Secretary-General issued the summary of the Board of Inquiry’s confidential report, which put the responsibility on the Israeli military for seven incidents in which UN schools being used to shelter people who had fled their homes to avoid Israeli attacks came under fire, killing at least 44 Palestinians and injuring at least 227 others. One of the incidents examined by the Board of Inquiry was the Israeli attack next to the UNRWA Rafah Preparatory Boys “A” School on 3 August 2014. The report found that a precision-guided missile fired by the Israeli air force just outside the school’s gate had killed 15 people and injured at least 25; Israel claimed that the target was a motorcycle carrying Palestinian fighters, and that the incident was among those being examined by the MAG.
Israel responded to publication of the report’s summary by stating: “All of the incidents attributed by the report to Israel have already been subject to thorough examinations, and criminal investigations have been launched where relevant.” The summary released by the Secretary-General included the Board of Inquiry’s recommendations to the UN; the Secretary-General said in an accompanying letter that these were being reviewed by an “ad hoc group of senior managers”. It remains unclear whether any substantive measures will be taken to ensure accountability for incidents examined in the Board of Inquiry report.
The pattern of impunity for serious violations and crimes, as well as evidence that both sides were committing further crimes during Operation Protective Edge, led Amnesty International to call for an ICC investigation into crimes under international law committed in Israel and the Occupied Palestinian Territories. Amnesty International welcomed Palestine’s accession to the ICC, which took effect on 1 April 2015, and its declaration accepting the Court’s jurisdiction from 13 June 2014, while noting that the period covered by the declaration was unnecessarily narrow. The organization has also welcomed the ICC Prosecutor’s announcement in January 2015 of a preliminary examination into the situation in Palestine, and urged all states to support the ICC’s exercise of jurisdiction over Palestinian territory, and to oppose any retaliation or threats against the Palestinian authorities for acceding to the Rome Statute or any further moves relating to the ICC.
The ICC and its preliminary examination have generated much attention from Israeli officials and analysts, but Israeli leaders have stated repeatedly that Israel will not co-operate with the Court. Israeli Prime Minister Benjamin Netanyahu rejected the ICC Prosecutor’s decision to open a preliminary examination as “absurd”, while then Foreign Minister Avigdor Liberman condemned it as “disgraceful” and stated: “We cannot accept this, and I will recommend that Israel not co-operate with this ‘examination’”. On the same day, Israeli broadcaster Channel 2 reported that Netanyahu had asked US Secretary of State John Kerry to block the Court from launching an inquiry. Nevertheless, even though Israel has rejected the ICC prosecutor’s decision, the MAG updates and Israel’s official report on the conflict appear to have been written with the ICC preliminary examination in mind. The ICC Prosecutor, for her part, has publicly urged the Israeli and Palestinian authorities to co-operate with the examination, pointing out that it is “in the best interests of both sides to provide my office with information”.
Recent reports indicate that Israeli officials have decided to engage with the ICC Prosecutor on a limited basis, in order to present their position that the ICC “has no authority to hear the Palestinian request since Palestine is not a country and because the Israeli judicial system is independent and can handle complaints on the matter of alleged war crimes”. Israeli officials have also stated that the Israeli authorities will consider a request from the Office of the Prosecutor for a visit to the region, which would normally be part of an ICC preliminary examination. While such limited engagement with the ICC Prosecutor is potentially positive, it would appear to fall far short of full co-operation with the preliminary examination, as urged by Amnesty International and the Human Rights Council resolution, among others. Amnesty International is urging Israel to accede to the Rome Statue of the ICC.
Meanwhile, Palestine submitted its first communication to the ICC on 25 June 2015, declaring that it reflected Palestine’s “willingness to assist the Office of the Prosecutor by providing information relevant to her preliminary examination”. The communication focused on Israeli settlements in the occupied West Bank, including East Jerusalem, Israel’s 2014 assault on the Gaza Strip, and Israel’s treatment of Palestinian prisoners and detainees.
Amnesty International urges the ICC Prosecutor to ensure that her office hears from victims on both sides as part of the preliminary examination, and to make a prompt and transparent determination on whether to open a full examination.
Given the failure of Israeli mechanisms to independently and impartially investigate serious violations to date, and bring suspected perpetrators to justice in fair trials, Amnesty International also continues to urge all states to exercise universal jurisdiction over crimes under international law committed in the context of Operation Protective Edge. States should investigate, and, when appropriate admissible evidence exists, prosecute these crimes in proceedings adhering to fair trial standards in their national courts.