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Palestinian Human Rights Organizations & Victims' Communication to the International Criminal Court Pursuant to Article 15

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Palestinian Human Rights Organizations & Victims' Communication to the International Criminal Court Pursuant to Article 15 Palestinian Human Rights Organizations & Victims’ Communication to the International Criminal Court Pursuant to Article 15 of the Rome Statute Requesting Investigation and Prosecution of The Illegal Closure of the Gaza Strip: Persecution and Other Inhumane Acts Perpetrated against the Civilian Population as Crimes against Humanity Situation of Palestine: Closure of Gaza Submitted By: Al-Haq Al-Mezan Center for Human Rights Palestinian Centre for Human Rights Aldameer Association for Human Rights November 2016 Table of Contents I. Introduction ................................................................................................................... 5 II. Submission’s content ................................................................................................... 11 III. Contextual Background .............................................................................................. 15 A. Terminology .................................................................................................................. 17 B. Evolution of the Closure Policy: Israel’s Protracted Belligerent Occupation of Palestinian Territory and Gaza Restrictions Prior to June 2007 ........................................... 18 C. Israel’s 2005 “Disengagement” from Gaza and its Retention of Effective Control over the Gaza Strip ....................................................................................................................... 25 IV. The Current Closure of the Gaza Strip (post-2007) ................................................. 29 A. Restrictions by Air ........................................................................................................ 35 B. Restrictions by Sea ........................................................................................................ 36 C. Restrictions by Land ...................................................................................................... 38 1. Movement of Persons via Land Crossings ................................................................ 38 2. Entry of Goods via Land Crossings ........................................................................... 55 3. Exit of Goods via Land Crossings ............................................................................. 62 D. The imposition of a “Buffer Zone” ............................................................................... 63 V. Impact: Illustrative Factual Overview ...................................................................... 66 A. On Infrastructure ........................................................................................................... 66 1. Energy and Electrical Infrastructure .......................................................................... 66 2. Water, Sanitation and Hygiene Infrastructure ........................................................... 70 3. Health Infrastructure .................................................................................................. 72 4. Housing and Other Civilian Structures ...................................................................... 75 5. Telecommunications and Information Technology (Telecom/IT) Infrastructure ..... 78 6. Other Public Infrastructure ........................................................................................ 80 B. On the Economy ............................................................................................................ 81 1. Farming ...................................................................................................................... 81 2. Fishing ....................................................................................................................... 84 3. Industry/Manufacturing Sector .................................................................................. 87 4. Increased Unemployment and Cost of Living: Poverty ............................................ 89 C. On Individuals, Families, Communities ........................................................................ 92 1. Health: Physical and Psychological ........................................................................... 92 2. Education ................................................................................................................... 98 3. Family and Community Life ................................................................................... 101 4. Food Insecurity and Aid Dependency ..................................................................... 103 5. Physical Attacks against Individuals in the “Buffer zone” at Land and Sea ........... 105 VI. Legal Analysis of Crimes against Humanity Committed by Israeli Officials in the Implementation of the Gaza Closure .................................................................................. 107 A. Contextual Elements of Crimes Against Humanity .................................................... 109 2. 1. Existence of an attack directed against any civilian population .............................. 109 2. Target of the attack as a civilian population ............................................................ 110 3. Nexus to State Policy ............................................................................................... 115 4. Establishing the Widespread and/or Systematic scope of the attack ....................... 116 B. The Crime against Humanity of Persecution .............................................................. 118 1. Legal Requirements of the Crime against Humanity of Persecution under Article 7(1)(h) of the Statute ....................................................................................................... 119 2. The Mens Rea Elements of Persecution .................................................................. 131 C. The Crime against Humanity of Other Inhumane Acts ............................................... 132 VII. Criminal Responsibility of Israeli Civilian and Military Senior Officials ........... 135 VIII. Jurisdiction ................................................................................................................ 136 IX. Admissibility .............................................................................................................. 137 A. Gravity (Article 17(1)(d) of the ICC Statute) .............................................................. 138 B. Complementarity (Article 17(2) and (3) of the ICC Statute) ...................................... 140 1. The Existence – or Absence – of Action at the Domestic Level ............................. 141 C. Interests of Justice ....................................................................................................... 143 X. Conclusion .................................................................................................................. 144 3. Source: OCHA oPt August 2016 4. “In Gaza, no one is dying… But no one is living.”1 Amr Hamad, Deputy Secretary General of the Palestinian Federation of Industries “The closure of Gaza suffocates its people, stifles its economy and impedes reconstruction efforts. It is a collective punishment for which there must be accountability.”2 UN Secretary-General Ban Ki-moon I. Introduction 1. This submission to the Office of the Prosecutor (“OTP”) of the International Criminal Court (“Court” or “ICC”) details the ongoing crimes against humanity committed by high- level Israeli military and civilian officials in the course of Israel’s imposition of a strict, continuous closure on the Gaza Strip from June 2007 to the present, with specific regard to those crimes falling within the Court’s temporal jurisdiction in relation to the State of Palestine, demonstrating that a sufficient basis exists for the Prosecutor to open an investigation into these crimes under Article 15 of the Statute of the ICC. 2. The Gaza Strip, a constituent part of the State of Palestine, is frequently described as the world’s largest open-air prison. This is not exaggeration: for the last nine years, approximately two million Palestinians have been effectively locked inside the tiny coastal territory,3 denied access to the remainder of the occupied Palestinian territory — and the outside world. In June 2007, following the assumption of power in Gaza by Hamas,4 Israel, the Occupying Power (also referred to in this submission as “Israeli authorities” and Israeli occupation forces “IOF” depending on the context), intensified the movement restrictions 1 Amr Hamad, quoted in Ethan Bronner, “A Rising Urgency in Israel for a Gaza Shift,” N.Y. TIMES (10 June 2010) , available at http://www.nytimes.com/2010/06/11/world/middleeast/11gaza.html. 2 United Nations Secretary-General Ban Ki-moon, “Secretary-General's Remarks at Press Encounter,” 28 June 2016, available at https://www.un.org/sg/en/content/sg/press-encounter/2016-06-28/secretary- generals-remarks-press-encounter. 3 The estimated Palestinian population in the Gaza Strip stood at 1,881,135 as of mid-year 2016, as published by Palestinian Central Bureau of Statistics, Jerusalem Statistical Yearbook 2016, 28 (Ramallah, Palestine June 2016), available at http://www.pcbs.gov.ps/Downloads/book2206.pdf (Arabic). However, on 12 October 2016, the population of the Gaza strip surpassed 2 million people, see “With baby Waleed, Gaza population reaches 2m,” Gulf News Palestine (12 Oct. 2016), available at http://gulfnews.com/news/mena/palestine/with-baby-waleed-gaza-population-reaches-2m-1.1911390. 4 For details on the developments in the Palestinian
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