Hibernations Must Not Curtail the ICC’s Investigation in the Situation in Palestine

WFM / IGP The Cost of Hibernated Investigations

Dr. Susan Power, Head of Legal Research and Advocacy at Al-Haq, warns that any move by the Office of the Prosecutor to hibernate its investigation in Palestine would risk compromising the safety of Palestinian witnesses and civil society, and aggravate accusations of political interference with the Court.

The Independent Expert Review recommendation that the Office of the Prosecutor (OTP)should deprioritize and hibernate investigations to address the ICC’s lack of resources is of grave concern. Having taken the important step of initiating an investigation into the Palestine situation in March 2021, the possibility that the OTP could potentially adopt and implement such a policy to hibernate the investigation and diminish contact with Palestinian witnesses creates uncertainty as to whether the ICC will deliver justice in one of the most internationally documented situations before the Court.

Threats to the Safety of Victims, Witnesses and Civil Society in Palestine

Israel controls all entry into the Palestinian territory, and holds the territory under a prolonged and repressive 54-year military occupation. Palestinian witnesses, victims, NGOs and legal representatives held under siege conditions in the Gaza Strip and hemmed in behind Israel’s Annexation Wall and watchtowers in the West Bank will be more vulnerable to danger if the investigation is delayed, undermining the ability of the Court to conduct effective investigations later.

This very real danger has been well documented by international observers, including the United Nations. UN Special Rapporteurs have previously condemned Israel’s levelling of death threats, arrests, imprisonment, and reprisals against Palestinian human rights defenders for their participation at the Human Rights Council. Organizations have been targeted for assisting UN Commissions of Inquiry. Others have been subject  to residency revocations. Palestinian lawyers, including those working on the ICC’s situation in Palestine, have received death threats.

Vague Standards for Hibernation May Open the ICC to Allegations of Political Interference

Worryingly, the factors for determining whether an investigation should be hibernated are not clear. According to the OTP, in deciding whether to hibernate some cases after it completed the related investigations, it has considered “random” factors. The Independent Expert Review of the ICC  noted the complexity of hibernating investigations and encouraged the “OTP to work on further developing clear criteria on de-prioritisation and hibernation of investigations.” Any such criteria must be consistent with the requirements of international human rights law and standards that investigations of human rights abuses  must be prompt, thorough, effective, independent and impartial. The European Court of Human Rights has further held in relation to violations of the right to life that “even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted.”

Any attempts to hibernate the Palestine investigation will inevitably lead to accusations of malevolent politicking. That the situation progressed to investigation in spite of the political attacks culminating in U.S. Executive Order 13928 – which characterised any ICC investigations into U.S. personnel and U.S.–allied countries, including Israel, as a national security threat – is testament to the independence, impartiality and integrity of former Prosecutor Fatou Bensouda.

However, a recent letter from British Prime Minster Boris Johnson to the Conservative Friends of Israel, opposing the ICC’s investigation in Palestine and welcoming the election of Prosecutor Karim Khan and Judge Joanna Korner “to help serve reform” is a foreboding prologue to the term of the new Prosecutor. That being said, although some rogue third states such as Germany and Hungary have continued to oppose the Court’s jurisdiction in the Situation in the State of Palestine, the European Union has categorically stated its support, magnifying the ignus fatuus of non-cooperation arguments.

Professor Kevin Jon Heller has pointed out that the benefits of hibernating “trial ready” cases pending the execution of arrest warrants means that investigations remain formally open, thereby saving the Prosecutor from having to formally close and then re-open an investigation that suffers delays. However, the OTP has acknowledged that some ICC cases have been hibernated even before they are “trial ready.” Moreover, the Independent Expert Review appears to go much further in recommending the hibernation of investigations before they are completed or even before they have commenced, taking into account “feasibility factors” such as the security situation and state cooperation. This is a key concern of NGOs working on accountability in Palestine. Given that the settler-colonial occupation of Palestine is one of the most widely documented situations before the Court, hibernating the investigation in its early stages before it is “trial ready” would be highly suspect.

Justice Delayed is Justice Denied

The situation in Palestine has already been the subject of ten Commissions of Inquiry (COI) and Fact-Finding Investigations. A further eleventh, established under UN Human Rights Council resolution S-30/1 following Israel’s 11-day military offensive on the Gaza Strip earlier this year, follows the mandates of previous COIs collecting and preserving evidence and identifying perpetrators of crimes. The 2019 COI report even recommends the transfer of dossiers on alleged perpetrators of crimes committed during the Great Return March to the ICC. Therefore, lengthy periods of inactivity masked as the investigation teams’ “monitoring” of the situation in Palestine, before relegating it to the ICC’s hibernation vaults, would cast serious doubt over the independence of this investigation.

After 73 years of apartheid and 54 years of occupation, characterised by the prevailing impunity of perpetrators by successive Israeli governments, any attempt to downgrade investigation activities in the Palestine situation will amount to a denial of justice.