ICC examination of Israeli settlement policies as war crimes in “Palestine” - a grave mistake

14 December 2019 | Newsletter | 19/4

ICC examination of Israeli settlement policies as war crimes in “Palestine”  -  a grave mistake

Dear friends,
it has been brought to our attention that Newsletter 19/4 of 13 December 2019 has not arrived flawless everywhere. Therefore, we hereby resend Newsletter 19/4 with apologies for the inconvenience.



On 5th December 2019 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) issued its annual Report on Preliminary Examination Activities 2019. In this report, the Prosecutor, Ms. Fatou Bensouda, gave a summary of the status of the twelve “situations” under examination by her office.
The OTP has indicated strongly that it intends to move forward soon to officially investigate Israeli leaders for war crimes and possibly also crimes against humanity relating to the “situation in Palestine”. In our view, the Office of the Prosecutor of the ICC is making a grave mistake in moving towards prosecution of Israeli leaders for war crimes in relation to alleged “settlement activities”. There are a number of concerning aspects of this part of the OPT’s report:

  • Lack of historical and legal context; 

  • The ICC does not have jurisdiction over non-state party nationals;

  • Palestine is not a state;

  • The alleged crimes are not grave enough;

  • Prosecution is more likely to hinder than promote a peace agreement;

  • Israeli government settlement policies do not (necessarily) amount to transportation or deportation of citizens.

Accordingly, the State parties to the Rome Statute should caution the Prosecutor not to get the Court involved in political disputes. The OPT should make better use of the Court’s resources, and focus on investigating and prosecuting heinous crimes that really are seriously grave.

The role of the ICC

Much criticism has been levelled at the OPT, which plays a central role in the work of the ICC. The OTP is responsible for determining whether a “situation” meets the legal criteria established by the Rome Statute to warrant investigation by the Office. 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 the information available in accordance with its Policy Paper on Preliminary Examinations. On the basis of that examination, it then decides whether to proceed to a formal “investigation” of a potential crime, which in turn could lead to prosecution.
As Dutch Foreign Minister Stef Blok noted in the latest annual meeting of the Assembly of State Parties, in seventeen years the court has a “meagre record” of only nine convictions and four acquittals. He continued: “The Court needs to do better. We need to do better. We need to reform the ICC and make it more efficient.”
The Court has a poor reputation and is the subject of considerable criticism at the moment. The USA has never been a party, and is very critical of the functioning of the Court. Russia pulled out of the Rome Statute in 2016. Many African nations object to the Court’s apparent obsession with Africa, and in 2017 South Africa, Burundi and Gambia each announced their intention to withdraw, and in 2019 the Philippines withdrew from the Rome Statute. Many other states have expressed deep concerns about the Court’s functioning and effectiveness.
The ICC was established by the Rome Statute in 1998 to investigate and, where warranted, try individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. The Court has 973 staff members and its annual budget in 2019 is €148,135,100. So basically the parties to the Rome Statute are paying a lot of money to the ICC to identify and prosecute the world’s worst criminals.

The "situation in Palestine"

Following the purported accession by “Palestine” to the Rome Statute in 2015, the Prosecutor opened a preliminary examination of “the situation in Palestine” in 2015. The “situation in Palestine” includes the “situation in the West Bank” and the “situation in Gaza”... continue reading

Please, visit our website for more online information about our work and the legal aspects of the Israel-Palestine dispute.

Warm regards,

Andrew Tucker - Director
Pieter Hoogendoorn - Secretary & Treasurer