ICC clears way for war crimes probe of Israeli actions in Palestinian territories
By Josef Federman
6 February 2021
Jerusalem: Judges at the International Criminal Court in The Hague have decided the court has jurisdiction over war crimes committed in the Palestinian territories, paving the way for a possible a war crimes probe into Israeli military actions.
The decision prompted swift reactions from both Israel, which is not a member of the court and rejects its jurisdiction, and the Palestinian Authority, which welcomed the ruling.
ICC Prosecutor Fatou Bensouda said her office was studying the finding and would decide what to do next “guided strictly by its independent and impartial mandate” to prosecute grave war crimes and atrocities when countries are unable or unwilling to do so themselves.
The ICC judges said their decision was based on the fact that Palestine has been granted membership to the tribunal’s founding treaty, and had referred the situation to the court. The judges said the jurisdiction decision does not imply any attempt to determine Palestinian statehood, which is uncertain, or national borders.
“The court’s territorial jurisdiction in the situation in Palestine ... extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,” they said.
Bensouda had found in December 2019 that there was a “reasonable basis” to open a probe into potential war crimes “in the West Bank, including East Jerusalem, and the Gaza Strip”. But she asked the court to determine whether she had territorial jurisdiction before proceeding.
Israeli Prime Minister Benjamin Netanyahu decried the decision and vowed to fight “this perversion of justice."
The Palestinian Foreign Ministry said the ruling meant it was “historic day for [the] principle of accountability”. Prime Minister Mohammad Shtayyeh said it was a “victory for justice and humanity.”
The Palestinians, who joined the court in 2015, have pushed for an investigation. Israel has said the court has no jurisdiction because the Palestinians do not have statehood and because the borders of any future state are to be decided in peace talks. It also accuses the court of inappropriately wading into political issues.
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The Palestinians have asked the court to look into Israeli actions during its 2014 war against Palestinian militants in the Gaza Strip, as well as construction of Jewish settlements in the occupied West Bank and annexed east Jerusalem.
The international community widely considers the settlements to be illegal under international law and an obstacle to peace but has done little to pressure Israel to freeze or reverse their growth.
Israel’s military has mechanisms to investigate alleged wrongdoing by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of fending off ICC investigation into its wartime practices.
When it comes to settlements, however, experts say Israel could have a difficult time defending its actions. International law forbids the transfer of a civilian population into occupied territory.
Israel captured the West Bank, Gaza and east Jerusalem in the 1967 war, territories the Palestinians want for their future state. Some 700,000 Israelis live in settlements in the West Bank and east Jerusalem.
A boy holds a Palestinian flag after Israeli troops demolished tents and other structures of the Khirbet Humsu hamlet in the Jordan Valley in the West Bank on Wednesday.
Israel says east Jerusalem is an indivisible part of its capital and that the West Bank is “disputed” territory whose fate should be resolved in negotiations.
While the court would have a hard time prosecuting Israelis, it could issue arrest warrants that would make it difficult for Israeli officials to travel abroad. A case in the ICC would also be deeply embarrassing to the government. Netanyahu led the 2014 war in Gaza, while current Israeli Defence Minister Benny Gantz was the military chief of staff at the time.
In a videotaped statement released after midnight, Netanyahu accused the court of “pure anti-Semitism” and having a double standard.
“The ICC refuses to investigate brutal dictatorships like Iran and Syria, who commit horrific atrocities almost daily,” he said. “We will fight this perversion of justice with all our might!”
Nabil Shaath, a senior aide to Palestinian President Mahmoud Abbas, welcomed the decision and said it proved the Palestinians were right to go to the ICC. “This is good news, and the next step is to launch an official investigation into Israel’s crimes against our people,” he said.
The ICC could also potentially investigate crimes committed by Palestinians militants. Bensouda has said her probe would look into the actions of Hamas, which fired rockets indiscriminately into Israel during the 2014 war.
In Washington, US State Department spokesman Ned Price told reporters that the Biden administration was “taking a close look” at the decision.
“However, we have serious concerns about the ICC’s attempts to exercise jurisdiction over Israeli personnel,” Price said. “We have always taken the position that the court’s jurisdiction should be reserved for those who consent to it or are referred by the UN Security Council.”
The decision, detailed in a 60-page legal brief, was released late on Friday (Saturday AEDT), after Israel had shut down for the weekly Jewish Sabbath.
Human Rights Watch welcomed the decision, saying it “finally offers victims of serious crimes some real hope for justice after a half century of impunity.”
“It’s high time that Israeli and Palestinian perpetrators of the gravest abuses — whether war crimes committed during hostilities or the expansion of unlawful settlements — face justice,” said Balkees Jarrah, associate international justice director at the New York-based group.
The three-judge pretrial chamber ruled that Palestine is a state party to the Rome Statute establishing the ICC. With one judge dissenting, it ruled that Palestine qualifies as the state on the territory in which the “conduct in question” occurred and that the court’s jurisdiction extends to east Jerusalem, the West Bank and Gaza.
Last year, the Trump administration imposed sanctions against ICC officials, after earlier revoking Bensouda’s entry visa, in response to the court’s attempts to prosecute American troops for actions in Afghanistan.
The US, like Israel, does not recognise the court’s jurisdiction. At the time, then-Secretary of State Mike Pompeo said the steps were meant as retribution for investigations into the United States and its allies, a reference to Israel.
The Biden administration has said it will review those sanctions.
AP, Reuters
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