"Systematic Murder" Complaint Filed To ICC Over Gaza Killings
Kiwi Investigator Led Investigations Teams In Gaza
"The information available provides a reasonable basis to believe that members of the Israeli Army commited systematic
murders of Palestinians demonstrators, in Palestine, near the border." - Complaint To ICC Submitted 17th May 2018
As diplomatic condemnations of the Gaza Massacre death toll from last Monday continue to echo around the world, an
International Criminal Court investigation into war crimes committed by Israeli Defence Force snipers against
Palestinian prostesters is looking increasingly possible. Scoop's Alastair Thompson reports from France on the timely laying of a complaint by 562 victims and families of those killed and injured in the
Great March of Return.
Avocat Gilles Devers & Investigator Julie Webb Pullman with their Gaza Massacre War Crimes Complaint
At 10am on Thursday 17th May in a small office in the center of Lyon a detailed war crimes complaint on behalf of 562
victims and families of those seriously injured or killed in the Great Return March was submitted to the International
Criminal Court by Lyon Based lawyer Gilles Devers.
Devers and Julie Webb Pullman, the chief investigator who has been working in Gaza for the past four years, participated
in a press conference held via skype with Arabic media based in Gaza. While the press conference wasn't well publicised,
or attended, the potential impact of the complaint is another matter.
To date the International Criminal Court has proven completely ineffective in dealing with events in occupied Palestine.
There are many reasons for this, including the relative youth of the court itself - established in 2002. But now, after
a decade of work to bring the situation in Gaza before the Court, those seeking justice may be on the threshold of a
You can read the full complaint to the International Criminal Court ICC here
. [Note: The names of the 562 victims on whose behalf the complaint is being made are redacted. You will see in the
complaint that it is supported by 69 lawyers from Palestine, Morocco, Turkey, Kuwait and France.]
The 32 page complaint is accompanied by detailed individual case files on each victim's injury or death. Work to
complete these files continues in Gaza. And further case files will be submitted for the 60 people killed, and 100s shot
on the Gaza/Israel border on Monday 14th May.
Monday was far and away the worst day of violence over the seven weeks of mass March of Return protests held every
Friday since March 30th.
Webb-Pullman's team have been working since January this year with TAWTHEQ - a quango of the Palestinian Government,
constituted by legislation and given responsibility to document war crimes after the 2008 Gaza War which is also known
as Operation Cast Lead. In that conflict 1500 Gazans were killed and over 5000 injured.
The detailed files compiled by Webb-Pullman's team include: photos taken in hospital of the injuries, medical
information about the cause of death and nature of injuries, witness statements from those present at the scene,
diagrams of where the incidents took place and body map diagrams showing how the injuries were inflicted. Each file has
associated evidence such as bullets or other projectiles and blood samples, all collected with a clear chain of custody
record enabling it to be submitted formally in court. In the case of gas related injuries and deaths - during the March
of Return protests there were several reported incidents of gas weapons causing convulsions and other symptoms more
typical of nerve agents than tear gas - blood, tissue and urine samples have been collected along with spent gas
Four Years Experience Doccumenting Israeli War Crimes
Julie Webb-Pullman in Lyon last Thursday morning.
Over the past four years Kiwi journalist, investigator and human rights activist Julie Webb Pullman has trained and
coordinated funding to assemble teams to collect evidence, interview witnesses and properly document thousands of
individual war crimes committed in the period since Operation Protective Edge (2014).
Without properly collected evidence it is difficult for the International Criminal Court to act. This difficulty is
compounded by the fact that Israel controls Gaza's borders and does not recognise the ICC. It would therefore be very
difficult for ICC investigators to obtain timely access to the scene to collect their own evidence.
Webb-Pullman, 64 has been trapped inside Gaza for the past four years after she returned to Gaza in the lead up to the
catastrophic 2014 Gaza War/bombing campaign in which over 2,000 Gazans were killed and over 10,000 injured.
Before setting up her war crimes documentation efforts, Webb Pullman worked as a journalist in Gaza maintaining a blog
and the Gaza.Scoop.ps
website for Scoop.co.nz. She also worked for a period training young Gazans in reporting and writing skills.
The ICC's Decision Maker - International Criminal Court Prosecutor Fatou Bensouda
International Criminal Court Prosecutor Fatou Bensouda
Prosecutor of the International Criminal Court Fatou Bensouda is responsible for making a decision about whether to
proceed with a war crimes investigation into last Monday's massacre. Reports indicate she has had a close eye on events
in Gaza since the Great Return March began on March 30th.
On April 8th, following the second day of mass protests, Fatou Bensouda issued a statement about the protests
"It is with grave concern that I note the violence and deteriorating situation in the Gaza Strip in the context of
recent mass demonstrations. Since 30 March 2018, at least 27 Palestinians have been reportedly killed by the Israeli
Defence Forces, with over a thousand more injured, many, as a result of shootings using live ammunition and
rubber-bullets. Violence against civilians - in a situation such as the one prevailing in Gaza - could constitute crimes
under the Rome Statute of the International Criminal Court ("ICC" or "the Court"), as could the use of civilian presence
for the purpose of shielding military activities."
Then this past Tuesday - the day after the massacre of 60 Gazan protesters coincided with the opening of a new US
Embassy in Jerusalem, and attracted global media attention - Fatou Bensouda made a further statement to Agence France Presse
The chief prosecutor of the International Criminal Court (ICC) vowed on Tuesday that she was watching closely killings
in Gaza, and would "take any action warranted" to prosecute anyone deemed to be a suspected war criminal.
Fatou Bensouda's comments come after the shooting dead of at least 61 Palestinians were gunned down on the border of
Gaza during protests.
"My staff is vigilantly following developments on the ground and recording any alleged crime that could fall within" the
tribunal's jurisdiction, she warned in a statement to AFP, adding: "The violence must stop."
This report, also picked up by Reuters, has attracted a lot of attention. In part because Israel has till now appeared
to be beyond reach of the jurisdiction of the court, thanks to the protection it enjoys at the UN Security Council from
the United States. The flagrancy of the human rights abuses committed on the Gaza Border over the past seven weeks also
strongly suggests Israel itself also considers itself beyond the reach of the court.
A Brief History of War Crimes Complaints And Inquiries re. Israel
Starting a war crimes inquiry into Israel's actions as part of its occupation has been an aspirational goal of many in
the human rights community ever since the Rome Statute establishing the International Criminal Court entered into force
The Statute includes very clearly defined responsibilities of occupying powers in relation to the citizens of occupied
territories, responsibilities that Israel has consistently flouted.
Footage of the Israeli Boarding of the Mavi Marmara - 31 May 2010
To date there has been only one war crimes inquiry related to Palestine, albeit not one convened by the ICC, and not one
related to Palestinian deaths. Instead this inquiry was held into the Gaza Flotilla Raid
of 31 May 2010 during which nine international activists (mostly Turkish) were killed when the flotilla was boarded by
IDF soldiers. In August 2010 the UNSC convened a special panel led by former NZ Prime Minister Geoffrey Palmer
to examine what had happened.
Later the ICC also examined the matter, starting a preliminary inquiry, but deciding against launching an investigation.
This decision was closely contested. Wikipedia
"In November 2014, Fatou Bensouda, Prosecutor for the International Criminal Court (ICC), stated that there "is a
reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court were committed on
one of the vessels, the Mavi Marmara, when Israeli Defence Forces intercepted the 'Gaza Freedom Flotilla' on 31 May
However, she declined to further pursue the case as it "would not be of sufficient gravity to justify further action by
the ICC." Representatives of the Comoros, on whose behalf the case was referred to the ICC, appealed the prosecutor's
decision, and in July 2015 a pre-trial chamber ruled that Bensouda had made errors in her decision to dismiss the case.
Bensouda appealed, but in November 2015 the appeals chamber of the International Criminal Court upheld the decision of
the pre-trial chamber. Bensouda then launched another preliminary investigation, reviewing more than 5,000 pages of
documents and more than 300 statements from passengers.
In November 2017, she reaffirmed her previous decision not to investigate, concluding that while war crimes may have
been committed on the Mavi Marmara ship and her conclusion does not excuse any crimes which may have been perpetrated,
the incident wasn't serious enough to merit ICC involvement.
In the Christmas 2008-09 Gaza War
, over a period of 22 days, 1417 Palestinians were killed, and 5303 injured - a majority of whom were civilians.
Following the War the Palestinian Parliament passed legislation to establish the Palestinian Independent Commission for
the Prosecution of Zionist Crimes against Palestinians (TAWTHEQ) - the organisation behind last week's ICC complaint.
Palestine's Govt also began investigating joining the ICC to enable them to make official complaints about abuses in
Occupied Palestinian territories.
After opposition to them doing so emerged from multiple quarters the Palestinian Government did not do so till after
the 2014 Gaza War, during which a further 2300 were killed and 10,000+ injured.
And at that point the possibility of an ICC prosecution of Israel and its military started to be taken seriously, but
even though complaints have since been laid with the ICC, none have yet been done so on behalf of the Palestinian
How A War Crimes Prosecution Can Be Started
The International Criminal Court In Session In The Hague
There are three ways that a war crimes inquiry can be initiated at the International Criminal Court.
1. By referral from the UN Security Council. A means which in the case of Israel is wholly ineffective. Neither the
US nor Israel acknowledge the court.
2. By referral from a member of a nation state member of the court, all those nations that have signed the Rome
Statute, the treaty which set up the court. The Palestinian Authority is a member of the court and therefore can make
such a referral.
3. Or, the final way an inquiry can begin is on the initiative of the court's prosecutor, in the form of a request
to the judges of the court to open an inquiry.
The Great March of Return Protests & Gaza Massacre of May 14th
Smoke and teargas during one of the March of Return protests.
Gaza's Great March of Return protests
began on March 30th 2018. The protests were proposed on Facebook and garnered such widespread support from groups
inside Gaza that they were officially endorsed by Hamas, the government of Gaza.
Protesters set up a tents near the border with Israel and held mass protests each week on Friday, protesting primarily
against the siege of Gaza, and as the name suggests, for the right to return. It was always intended that the protests
would be peaceful, and non-violent protest training sessions were held at the protest camps to reinforce this.
Over the course of the following seven weeks 104 protesters were killed and over 12,600 injured, around half of whom
were hospitalised. Over the same period one Israeli soldier was injured.
The vast bulk of deaths and injuries, many of will lead to permanent impairment, were caused by gunfire from IDF snipers
stationed behind the border, often on the top of high earth berms. The legality of this use of lethal force against unarmed protesters
- some of whom were throwing stones and burning tyres to obscure themselves from the view of the snipers - was
questioned from day one of the protests.
A helpful description of the legal issues is contained in this article in Slate Magazine
"We know they include at least two permits to allow force that could be potentially lethal against individuals who do
not pose imminent danger to lives at the time they are being targeted. One is individuals who are considered by the army
as principal "agitators" or principal demonstrators, whatever that means. And if some conditions are met, they can be
targeted. We know that in the list of conditions that have to be met, we know there is no demand that they present
imminent danger, which is a departure. That is a deviation from the laws of use of force against civilians.
And the second deals with individuals who cross a certain line of distance toward the Gaza border fence and damage it.
And again, damaging the border fence is an offense and it is an attack launched against a military installation. But it
is not a capital-punishment offense, and it can and should be dealt with by nonlethal means. And unfortunately, what we
see and what we know from statements from both generals and ministers, there is a permit to shoot to injure in these
cases. Even if the intent is not to kill, but to injure or to stop, the legal implication of using lethal force, or
force that potentially could be lethal, is enough for me to conclude that this is illegal and a grave violation of
Let me put it in a sound bite: International law allows endangering human life in order to protect human life, not any
other thing. And what we are seeing here is a deviation from that very simple, very important principle."
The protest was scheduled to reach its climax and end on the 70th Day of Nakba (The Catastrophe), May 15th, the day on
which the Palestinian people recall being evicted from their homes in the period 1947-1949, and during which many of
them were sent into excile.
On the day before, May 14th, the US Embassy opened in Jerusalem in controversial circumstances. And during the opening
the level of casualties on the Gaza border exploded. By the end of the day 60 people had been killed and, according to
the Palestinians, 1350 had been wounded by gunfire.
The massacre overshadowed the opening of the Embassy in international media. It led to the withdrawal of several
diplomatic representatives from Israel, multiple calls for independent investigations, complaints to the ICC from
Reporters Sans Frontiers and the Turkish Government, and an emergency UN Security Council meeting.
United States Veto Closes The First Door
Urgent UNSC Meeting Called To Discuss Gaza Massacre
On Tuesday, the day after the massacre, an emergency meeting of the UN Security Council was held to discuss the high
death toll in Gaza.
Called by the permanent representative from Kuwait, the meeting followed use of its veto power by the United States to
prevent an otherwise unanimously supported UNSC statement expressing alarm at the deaths and mayhem of 14th May, and
calling for an inquiry.
During Tuesday's Security Council meeting - which you can watch in full above - there was near unanimous support by UNSC
members - other than the United States - for an independent investigation into the events which led to the loss of so
many lives over the past seven weeks, and especially on Monday.
It was widely noted in the media that United States UN Ambassador Nikki Haley walked out of the chamber as soon as the
Palestinian representative began to speak.
Earlier in her statement to the council Amb. Haley blamed the death toll entirely on Hamas, the Governing political
party in Gaza, and rejected any notion that the moving of the US Embassy was in any manner a contributing cause to the
Similar views, expressed by President Trump's son-in-law Jared Kushner at the opening ceremony for the new US Embassy in
Jerusalem (which coincided with the massacre) were later repeated several times later on Tuesday by a spokesman for the
White House, even though they were left out of the official transcript of Kushner's remarks.
Palestine's War Crimes Investigation Team
In January of 2015, after Palestine finally joined the International Criminal Court as a member following the 2014 Gaza
war, the ICC opened a preliminary examination of the situation in Palestine
. A preliminary investigation is held by the ICC to determine whether or not it considers that an investigation is
Kiwi investigator Webb Pullman's work on war crimes in Gaza had begun earlier, in 2014. After arriving back in Gaza in
June of 2014 she hadn't been there very long before she found herself working as a human shield, alongside other
internationals (western foreign residents), trying to protect hospitals from being bombed. It was perceived that the
Israelis would not kill citizens of western nation for fear of that leading to inconvenient questions and
During this period Webb Pullman - who has worked as an investigator in NZ and elsewhere - realised the best place to
collect evidence for potential war crimes prosecutions would be inside the hospitals. She and her colleagues began to
document what they were seeing and to collect the evidence of damage to the hospitals themselves. Often they found parts
of Israeli ordnance were left inside smashed up hospital buildings. Later she formulated a documentation form which has
now been adopted in several hospitals for use when treating anyone who is injured by military means. This enables the
process of documentation of the circumstances of war related death or injury events begin swiftly.
After her experience during the 2014 war Webb-Pullman started to work full time on documenting war crimes according to
the standards that judicial processes require. Working first with Gazan Human Rights NGO Hemaya
and later with the Gazan Ministry of Health Webb-Pullman put together teams to enable her to compile comprehensive and
detailed war crimes complaints about events which occurred during Operation Protective Edge (aka the 2014 Gaza War)
and it's aftermath.
Operation Protective Edge, which was for the most part an aerial bombardment, began in Gaza in July and August of 2014.
It led to the very widespread destruction and massive loss of life. During the bombing campaign more than 2300
Palestinians were killed and 10,000 injured.
The War Crimes complaint Webb-Pullman assembled about the war detailed among other things, Israeli use of prohibited
weapons as well the deliberate bombing of hospitals, residential apartment blocks, and civilian infrastructure and the
loss of civilian life.
Like the latest complaint the 2014 War complaint was also lodged with the ICC on behalf of individual victims and their
families because the Palestinian Government was not willing to make a formal complaint under Article 14 of the Rome
It is notable that as of today, four years after joining the International Criminal Court, no formal referral request
for a war crimes investigation for any of the Gaza conflicts - including the Gaza Massacre and the Great March of Return
- has been made to the ICC Prosecutor. That said there are some signs that Palestinian Government resistance to making a
formal referral may be weakening.
Palestine's War Crimes French Lawyer - Gilles Devers
Lyon Based International Law Avocat Gilles Devers
Speaking to Scoop in his office in Lyon, Gilles Devers, the French lawyer acting for TAWTHEQ is hopeful that a long
awaited break-through with the ICC will be forthcoming now.
Devers points to the strong public statements made by the prosecutor and by many nations about the death toll on May
14th and in the seven weeks preceding. The International legal issues related to the use of lethal force against
protesting civilians under occupation were also relatively straight forward.
But most important of all, M. Devers said, was the quality of the evidence that had been gathered on the ground by
Webb-Pullman and her team.
In addition a recent request by the ICC Prosecutor to open of an ICC investigation into war crimes in Afghanistan since
2003 means there is now a precedent for an investigation to be initiated under Article 15 of the Rome Statute, by the
ICC Prosecutor acting on her own account and applying to the magistrates of the court to look at the case.
The latest Palestinian complaint to the court was based around the legal arguments laid out in the the application by the Prosecutor in the Afghanistan case which can be read here.
In the 32-page complaint lodged last week
the legal and evidential arguments for opening a War Crimes prosecution are made using the specific detailed case of
Ibrahim Abu Thoraya, protester who was shot on Friday 15th December 2017 in very similar circumstances to most of those
shot over the past seven weeks.
The complaint begins its factual account of the circumstances of the March 30th to May 14th protests as follows:
"There is a separation barrier, built with solid facilities, with masonry, stakes and fences. The barrier is protected
by heavy installations. Behind the separation barrier, there are classic military equipment, which allows soldiers to
stand up, with guards, sandbags or earth embankments enabling them to watch and act safely. Are erected as well towers
whose height exceeds the barrier, from which the Israeli army can watch and shoot.
The Palestinian protesters are on the opposite ground, which is a wasteland with no defense facilities. There are just
some reliefs and some concrete blocks, which eventually offer a limited protection. The young protesters are located on
this area, on a strip of land that is between 300 and 50 meters from the barrier.
These are civilians who come for demonstrations.
Since December 2017, the Palestinians have not fired any shots at the Israeli soldiers.
The only weapons available for the protesters are slingshots or catapults throwing stones at the soldiers. The
photographs show that only a few protesters have these materials.
The risk posed by throwing stones is objectively very limited. These throws are essentially symbolic. Indeed, the
demonstrators cannot manage to approach the barrier, being in the best case at about fifty meters, but it is impossible
to stay because when approaching they are targeted by the Israeli fire.
The stones thrown are aimed at soldiers who are in military uniform, so with an adequate protection even in case of
being hit by a stone. Moreover, the soldiers benefit from material protection with high wire mesh, solid protections,
and on the tower, strong protections and sandbags.
In such a way, these demonstrations are essentially peaceful, with no armed elements, and the stones throwing does not
represent any real physical threat to the soldiers.
For the Palestinians, these demonstrations are a means to express their determined opposition to the colonization
To disperse the demonstrators with a real risk of crossing the barrier, Israeli soldiers can use gas and defensive
However, responding to the military command, the soldiers use targeted fire. The use of targeted shootings against
civilian demonstrators, who are also on their own territory and separated by an impenetrable barrier, characterizes the
violation of international law."
The Killing of Ibrahim Abu Thoraya
The complaint then (pages 12 to 26) proceeds to relate the killing of 29-year-old Ibrahim Abu Thoraya on December 15th
2017, nine days after the announcement by Donald Trump that he was planning on moving the U.S. Embassy to Jerusalem
Abu Thoraya (a.k.a. Abu Thuraya) was shot by Israeli snipers in the forehead whilst sitting in a wheelchair and waving a
flag just 30 meters from the border. The account of his killing in the ICC complaint includes extracts from witness
accounts from multiple eyewitnesses.
Abu Thoraya, a fisherman, was injured in the 2008 war and lost his legs, after this he made a living washing cars. He
felt strongly about the occupation and was a very well known participant in spontaneous border protests held after
Friday prayers in response to Donald Trump's announcement of the decision to move the U.S. Embassy to Jerusalem.
On the 15th of December around 200 protestors were protesting at a particularly well fortified part of the border with
From the description of what happened next it is clear that these earlier protests were a prelude to those which took
place over the past seven weeks. Stone throwing and tyre burning, tear gas in response from the Israeli's followed by
rubber bullets and then gunfire from snipers, sometimes shooting to frighten, sometimes to maim and sometimes to kill.
As the protest on the 15th of December heated up Abu Thoraya moved fairly close to the border, around 30 meters away
from the fortifications. A large amount of teargas was being used and several protesters were injured. Shortly before
Thoraya was shot, other protester was also shot dead. And then it was Abu Thoraya's turn.
"It was after this first phase that Ibrahim was shot. Ibrahim remained in his position as a protester, motionless. He
refused to go back. There was a bit of confusion from the gas and bullet shooting that had just taken place, but Ibrahim
was still in his advanced position, about twenty meters away. Several people witnessed the shooting and saw Ibrahim
collapse when he was hit by the bullet.
There is no doubt that it is an Israeli shooting, carried out by soldiers who were behind the protective wall. Ibrahim
was facing the soldiers, and the bullet hit his forehead just above the brow bone, that is, from the front. The bullet
has been extracted and is the subject of an expert report.
It's a sniper shot, designed to kill. The soldiers have precision weapons, especially at 20 meters. Ibrahim did not
move, or very little, because of his disability. Soldiers shoot and aim safely and without panic, given the protections
and security they have. It's a criminal shot."
The complaint says that while the shooter cannot be identified, witnesses believed it was probably one of a group of
female snipers at the protest, one of whom may have been hit with a rock shortly before Abu Thoraya was shot.
The killing of Thoraya has also been reported on by B'Tselem, The Israeli Information Center for Human Rights in the
Occupied Territories as part of their coverage of the "open fire"
, rules of engagement that IDF soldiers operate under.
This report on the killing of Thoraya
, published by B'Tselem on Feb 14th, makes clear the flaws in the IDF's open fire rules of engagement on the Gaza border
were operational, much discussed and widely known for a lengthy period before the Great Return March began.
"During the wave of protests sparked by President Trump's declaration about Jerusalem, another seven demonstrators -
apart from Abu Thuraya - were shot and killed by soldiers who were stationed on the other side of the perimeter fence.
Like Abu Thuraya, none of the protesters who were killed posed mortal danger to the soldiers. According to figures from
the Palestinian Ministry of Health, between 7 and 31 December 2017, a total of 322 Palestinians were injured by live
ammunition fired by the military and 58 were injured by rubber-coated metal bullets. This reality is a direct result of
the military's open-fire policy near the perimeter fence, which includes gunfire - also by snipers - at stone-throwers
who pose no danger whatsoever.
The media reported that the Military Police Investigations Unit has launched an investigation into the shooting of Abu
Thuraya. However, past experience shows the investigation is highly unlikely to lead to the prosecution of those
responsible for this unlawful killing, to say nothing of the prosecution of senior figures. This experience, which shows
that such investigations almost always end in a whitewash, has led B'Tselem to stop sending demands to the MAG Corps to
open investigations. That said, the obligation to investigate and bring to justice those responsible remains squarely on
the shoulders of the military system. Yet as long as the MAG Corps continues its policy of systematically whitewashing
instances in which Israeli security forces kill or injure Palestinians, with no one being held to account for these
actions, the unlawful killing will continue."
At paragraph 99 of the complaint, the fact that the nature of shooting policies have been so consistent for such a
lengthy period is used to conclude that the IDF is conducting a systematic programme of murder.
"The situation of the victim Ibrahim was the subject of a detailed report, which makes the crime perfectly probable, and
which shows the quality of the work that can be produced by the services of Palestine, to the International Criminal
The information available provides a reasonable basis to believe that members of the Israeli Army commited systematic
murders of Palestinians demonstrators, in Palestine, near the border."
The Palestinian Government May Also Complain
The Palestinian Authority is preparing to refer Israel to the International Criminal Court (ICC) for alleged war crimes
-- a potential key development for a case opened by the Court in 2015.
A document referring Israel to the ICC for "war crimes" was signed in Ramallah on Tuesday evening by Palestinian Foreign
Minister Riad Malki and is expected to be filed with the Prosecutor next week. The decision was taken after the May 14
protests in Gaza, senior Palestinian official Saeb Erekat told the press.
That being said, there have been similar such reports in the past, without a referral having yet been made, and it is
for this reason that this complaint is being made to the Prosecutor under Article 15 requesting that she take action on
her own account.
It is widely believed financial pressures form donor nations is the reason no referral has been made to the ICC in the
four years since the Palestinian Government signed the Rome Statute in 2014.
The Palestinian Authority, where the decision making power in this matter lies, is very financially dependent on
assistance from the U.S. and European nations, particularly the UK and France.