The International Criminal Court (ICC) at The Hague has reported significant progress in its preliminary investigation into a complaint filed by the Palestinians for war crimes allegedly committed by Israel in the 2014 Operation Protective Edge, during the 2018 protests on the Gaza border and over the construction of settlements and the demolition of houses in the West Bank and east Jerusalem.
However, Chief Prosecutor Fatou Bensouda said in the report she has not yet decided whether to open an official investigation and nor whether she has the authority to deal with the Palestinian issue.
Bensouda's report states that during the "March of Return" campaign that began in March 2018 along the Israel-Gaza border, IDF soldiers used lethal as well as non-lethal force against the protesters and have caused the deaths of 170 people, including 30 children, and wounded more than 19,000. Among those wounded were also medical aid workers and journalists, according to the report.
However, Bensouda also noted that "while most of the demonstrators engaged in non-violent protest and remained a few hundred meters away from the border fence, some of them entered the immediate area of the fence and were involved in violent activities such as rocket fire, Molotov cocktails and explosive devices, they launched incendiary balloons and kites into Israel and tried to infiltrate Israeli territory."
"Israel claims that Hamas and other armed groups initiated a violent confrontation and exploited the protest as a cover for terrorist activity... while making use of the civilian population as a human shield for their military activities," she wrote. "However, the IDF's rules of engagement and the claims of excessive and lethal use of force by the Israeli security forces in the context of the demonstrations elicited harsh criticism from, among others, UN officials and several international NGOs."
The prosecutor noted the UN Human Rights Council's decision to establish a body to investigate allegations of violations of international law by Israel in connection with the demonstrations. The IDF has stated that it will conduct internal investigations into incidents in which protesters were shot.
Bensouda also noted that her office received information about other crimes allegedly committed by senior Israeli officials in the West Bank, including east Jerusalem, which could possibly be classified as crimes against humanity; in particular, allegations of persecution, expulsion of civilians and accusations of apartheid.
In addition, the prosecutor's office received accusations that Palestinian security and intelligence agents operating in the West Bank committed crimes against civilians held in PA detention facilities. These and other crimes, she noted, require further investigation.
Regarding the situation in the West Bank and east Jerusalem, the report emphasized that the Israeli government consistently claims that settlement activity is legal, while on the other hand, the Israeli Supreme Court has ruled that the government's settlement policy is not justiciable.
The prosecutor's office examined several Supreme Court decisions that examined the legality of certain government activities relating to the settlements. In addition, the office examined whether, based on existing information, alleged crimes committed in the West Bank since June 2014 were serious enough to warrant opening an investigation, particularly with regards to their scope, nature, and impact on the victims and communities.
In April 2018, shortly after the start of the March of Return campaign, Bensouda issued a statement expressing deep concern over the violence escalating in the Gaza Strip and called for its cessation.
On October 17, she issued another statement expressing concern about Israel's intention to dismantle the Bedouin settlement in Khan al-Ahmar in the West Bank, as well as the continued violence by both sides along the Gaza-Israel border.
The Ministry of Foreign Affairs issued a statement: "The annual report of the prosecutor's office on preliminary examinations has only just been published, and we are studying it. Recalling that Israel is not a member of the International Criminal Court, and our unequivocal position is that the tribunal has no authority to deal with the Israeli-Palestinian conflict, inter alia, since the PA is not a state. We expect that at the end of the preliminary examination the prosecutor will confirm this."