RAMALLAH, On 23 November, ahead of the 21st session of the Assembly of States Parties (ASP) of the International Criminal Court (ICC), 197 Palestinian, regional and international civil society organizations (CSOs) sent open letters to the ICC Prosecutor Karim Khan and the ASP President Silvia Fernández de Gurmendi concerning the Situation of Palestine.

The letter sent to the ICC Prosecutor Khan calls on him to investigate and deter the Israeli apartheid regime’s crimes in Palestine. The letter stipulates that the mandate of the ICC Prosecutor “provides the opportunity, not only to investigate international crimes but also to monitor the situation investigated by [his] office and to perform an early warning function.”

The letter cites the Office of the Prosecutor’s (OTP) policy paper which provides for deterrent preventive statements that “will allow the Office to react promptly to upsurges of violence by reinforcing early interaction with States, international organizations and non-governmental organizations in order to verify information on alleged crimes, to encourage genuine national proceedings and to prevent reoccurrence of crimes.”

It also shows that previous preventive statements issued by the OTP have proven to be effective in providing sufficient deterrence. It gives the example of the OTP’s 2018 preventive statement regarding the planned forced evictions of the Bedouin community of Khan al-Ahmar in the West Bank. It further shows that “the then-Israeli Foreign Minister confirmed that Israel did not evict Khan al-Ahmar out of concerns of an ICC investigation.”

The letter affirms that this “unequivocally shows that such preventive statements can provide sufficient deterrence.” It also highlights that there have been “important missed opportunities for preventive statements in the past year” and notes that “a statement from the Prosecutor – that the OTP is monitoring the situation and that any serious crimes committed may be included in [his] office’s investigation – can provide the required deterrence and help reduce Palestinian victims’ suffering.”

The letter sent to the ASP President de Gurmendi highlighted the crucial role that the ASP plays in supporting the court underscoring the ‘Omnibus Resolution’ on “Strengthening the ICC and the ASP” in which the ASP expressed, inter alia, its appreciation of the “invaluable assistance that has been provided by civil society to the Court,” and voiced its concerns “by the recent reports of threats and intimidation directed at some civil society organizations cooperating with the Court.” Moreover, the ASP reaffirmed “the importance of supporting all those cooperating with the Court […] in order to secure the ability of the Court to fulfill its critical mandate of holding accountable perpetrators of the most serious crimes of concern to the international community and delivering justice to victims.”

It also underscored the ASP proposal for the implementation of recommendation 169 of the Independent Expert Review, in which it reaffirmed its commitment to “uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any threats or measures against the Court, its officials and those cooperating with it, and renews its resolve to stand united against impunity.” Moreover, the proposal reiterates that the Presidency of the ASP, “bears the main responsibility for coordinating an appropriate response from the Assembly to any threat or attack against the Court, its officials and those cooperating with it, which has the potential to undermine the integrity, effectiveness or impartiality of the Court.”

The proposal listed concrete steps that the ASP can take to ensure an immediate response to such attacks, including, issuing a statement, convening an urgent meeting of the Bureau, and proposing additional measures to be adopted by the Bureau, which could include individual or joint statements and other forms of communication and outreach, and other private or public diplomacy initiatives.

Consequently, both letters noted the Israeli apartheid brazen outlawing of six prominent Palestinian civil society organizations on 22 October 2021, as well as the Israeli occupying forces’ raids on the headquarters of the seven organizations on 18 August 2022, confiscating computers and equipment, sealing entrance doors and formally closing the organizations under military orders.

The letters stressed that such acts by Israel’s apartheid regime of “tampering with or interfering with the collection of evidence”, when at the investigation or trial stage, for example, may amount to “offences against the administration of justice” as stipulated by Article 70 of the Rome Statute. It further showed that the Israeli “unsubstantiated designations and its latest outrageous raid of Palestinian civil society offices appear to be an attempt by its apartheid authorities to conceal its crimes and to prevent the ICC from acquiring the information that has been collected by those organizations.”

The letters further showed that these designations are “the latest in an orchestrated campaign of repression against the organizations, apparently in large part because of their constructive engagement with [his] office.” It further referred to the OTP’s 2016 report on preliminary examination activities, in which it acknowledged that “staff members of certain [Palestinian] organizations that have gathered information of relevance to the Office of the Prosecutor’s preliminary examination, such as Al-Haq and Al Mezan, have been subjected to threats and other apparent acts of intimidation and interference.”

The letter also noted that the Apartheid Convention, which should be used as a guide in interpreting the Rome Statute, specifically lists as an “inhuman act” of apartheid, the “persecution of organizations and persons by depriving them of fundamental rights and freedoms, because they oppose apartheid.” In addition, the letters stated that “when the Court and its staff were threatened and sanctioned, by the Trump administration under US Executive Order 13928, civil society and human rights defenders from across the world, including ourselves, stood up for the Court and called on the threats to stop and sanctions to be rescinded.” It further clarified that “Palestinian CSOs have played a vital role in the defense of justice and human rights and played a pivotal role in achieving the State of Palestine’s accession to the Rome Statute.”

The letters also called on the ICC Prosecutor and the ASP President to support Palestinian CSOs and asked them “to respond to Israel’s latest attacks on Palestinian CSOs and defend human rights defenders who cooperate with the Court.” It further noted that Palestinian CSOs will “continue to be active stakeholders of the Rome Statute system, continue [their] cooperation with the Court and support its investigation into the Situation in the State of Palestine.”

The letter to the ICC Prosecutor called on him, as part of his ongoing investigation, to:

Publicly condemn and call for the rescinding of Israel’s designations of Palestinian CSOs;

Publicly affirm that the alleged crimes committed during Israel’s military offensive on Gaza in August 2022 will be scrutinized as part of his investigation into the Situation in Palestine;

Urgently expedite his investigation into the Situation of Palestine, including the crimes against humanity of apartheid and persecution;

Issue preventive statements to deter Israeli practices that may contribute to ongoing crimes against humanity and war crimes, entailing that all alleged crimes committed in Palestine, including the persecution of Palestinian organizations as an inhumane act of the crime against humanity of apartheid, will be examined by his office and included in its current investigation;

Operating under Part 9 of the Rome Statute, call upon Jordan and Palestine, as ICC States Parties, and other non-state parties, including Egypt, to cooperate with his Office in facilitating the opening of a country office in Palestine, and in arranging an urgent visit to Palestine, especially to Gaza; and

Take appropriate action, within the confines of the exercise of his mandate under the Rome Statute, with a view towards preventing and deterring the commission of war crimes and crimes against humanity in the situation in Palestine.

The letter to the ASP President called on her to:

Send a letter to the Israeli authorities to condemn their attacks on Palestinian CSOs and demand their unlawful designations be rescinded;

Publicly condemn Israel’s designations of and threats against Palestinian CSOs and defend the human rights defenders and CSOs cooperating with the ICC;

Inform the ASP Bureau and ICC States Parties of the threats and sanctions against Palestinian CSOs and encourage them to express their support and condemn measures; and

Implement the ASP Presidency’s proposal for the implementation of recommendation 169 of the Independent Expert Review adopted by the bureau on 29 July 2022.

Source: Palestine News & Info Agency