ICC prosecutor announces formal investigation into Israeli 'war crimes'

International Criminal Court Prosecutor Fatou Bensouda announced on Wednesday that she is opening a full war crimes probe against Israel and the Hamas terrorist group in the Gaza Strip.

“The decision to open an investigation followed a painstaking preliminary examination undertaken by my office that lasted close to five years,” Prosecutor Fatou Bensouda said in a statement.

“In the end, our central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides,” she added. “My office will take the same principled, non-partisan, approach that it has adopted in all situations over which its jurisdiction is seized.”

Netanyahu called the decision to investigate Israel “undiluted antisemitism and the height of hypocrisy.”

“Without any jurisdiction,” Netanyahu lamented, “it decided that our brave soldiers, who take every precaution to avoid civilian casualties against the worst terrorists in the world who deliberately target civilians, it’s our soldiers who are war criminals. They said that when we build a house in our eternal capital of Jerusalem, it’s been our capital for 3,000 years, that too is a war crime.”

Netanyahu pointed out that the ICC was established to prevent atrocities like the Holocaust from happening again, and is now coming after the Jewish state.

“Of course, it turns a blind eye to Iran, Syria and the other dictatorships that are committing real war crimes left and right,” he stated.

The prime minister said he has discussed the matter with many leaders and governments around the world, but the court is “biased in advance against Israel.”

At a Likud event later on Wednesday, Netanyahu said: “The only thing to do is to fight for the truth in world opinion with full force in every country in every forum. We will act to protect every soldier, citizen and commander. We will act until we cancel this absurd decision, and we will succeed.”

The Palestinian Authority said that it welcomed the decision to open a war crimes investigation.

“This is a long-awaited step that serves Palestine’s tireless pursuit of justice and accountability, which are indispensable pillars of the peace the Palestinian people seek and deserve,” the PA Foreign Ministry said in a statement.

Hamas also welcomed the decision, though it will also be in the ICC’s crosshairs.

Bensouda’s announcement comes less than a month after a February 5 decision by the ICC Pre-Trial Chamber recognizing a State of Palestine for ICC purposes and authorizing her to move forward.

The probe is expected to cover the 2014 Gaza War, the 2018 Gaza border crisis and the Israeli settlement enterprise as well as Hamas’ rocket attacks against Israeli civilians.

War crimes suits could be leveled at Netanyahu, defense ministers and any other high-level officials involved in such activity since June 13, 2014. Soldiers and commanders could also be targeted, though usually the ICC is only interested in a small number of top officials.

“The investigation will cover crimes within the jurisdiction of the court that are alleged to have been committed in the situation since 13 June 2014, the date to which reference is made in the referral of the situation to my office,” Bensouda said in a statement released on Wednesday.

Bensouda said that the investigation “will be conducted independently, impartially and objectively, without fear or favor.”

“Having assessed submissions from states, international organizations and other stakeholders, the chamber was otherwise unanimous in its view that Palestine is a state party to the Rome Statute.”

The majority also ruled that Palestine’s referral of the situation obliged the office to open an investigation, the office having determined that there existed a reasonable basis to do so in accordance with the Rome Statute criteria,” she wrote in a statement.

Bensouda called on Palestinian and Israeli victims and affected communities to be patient.

“The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes,” she wrote. “In meeting this responsibility, the office focuses its attention on the most notorious alleged offenders or those alleged to be the most responsible for the commission of the crimes.”

Her primary concern, she wrote, “must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides.”

Bensouda’s decision comes only a few weeks after her successor, Karim Khan, was announced to take her place starting in June.

The news will be another blow to Israel, where officials had hoped Bensouda would leave the decision of how to proceed to her successor and that he might be more sympathetic to Israel’s many claims against the ICC’s jurisdiction.

Israeli officials have said that Bensouda might have been trying to lock Khan into following her path and pointed out that she has declined to issue major decisions near the end of her term regarding Ukraine and Nigeria.

On Tuesday, Defense Minister and acting Justice Minister Benny Gantz alarmed government officials when he warned that hundreds of Israelis could be subject – in the near future – to war crimes probes by the International Criminal Court.

Gantz called that “an estimate,” declining to say that Israel had drawn up a list of officials likely to be investigated. Israel will provide legal assistance to any targeted Israelis and will give them advice regarding travel abroad if necessary, Gantz said.

Top Israeli government experts said that the “hundreds of Israelis” estimate does not correspond to the ICC’s tendency to focus on a single digit number of top officials.

President Reuven Rivlin called the decision “scandalous.”

“We will not accept claims against the exercise of our right and our obligation to defend our citizens,” Rivlin stated. “The State of Israel is a strong, Jewish and democratic state which knows how to defend itself and to investigate itself when necessary.”

The president added: “We are proud of our soldiers, our sons and daughters... We will stand guard to ensure that they are not harmed because of this decision.”

Foreign Minister Gabi Ashkenazi said the ruling is a political attempt by Bensouda to “try and set priorities” for her successor.

IDF Chief of Staff Lt.-Gen. Aviv Kochavi called the decision “fundamentally void of any authority, taken without authority and out of context.”

“We will not allow any foreign and baseless institution interfere with our work to protect Israel,” he said in an official message to IDF soldiers.

Balkees Jarrah, associate international justice director for the left-wing NGO Human Rights Watch, stated: “The ICC prosecutor’s decision to open a Palestine investigation moves Israeli and Palestinian victims of serious crimes one step closer to obtaining a measure of justice that has for too long eluded them.

“The court’s crowded docket shouldn’t deter the prosecutor’s office from doggedly pursuing cases against anyone credibly implicated in such crimes.

“All eyes will also be on the next prosecutor Karim Khan to pick up the baton and expeditiously move forward while demonstrating firm independence in seeking to hold even the most powerful to account. ICC member countries should stand ready to fiercely protect the court’s work from any political pressure,” he added.

Senior fellow at the Foundation for the Defense of Democracies and Arizona State University law professor Orde Kittrie said, "Bensouda’s aggressive move against Israel is also surprising from an institutional perspective.  It comes just three weeks after Karim Khan, a respected British attorney, was elected to replace Bensouda when her term expires on June 15."

"Khan defeated Fergal Gaynor, an Irish attorney who has long been the leading outside advocate of the ICC investigations of the US and Israel.   Bensouda appears to be trying to box in her successor," he said.

Kittrie added, "Bensouda appears to be taking these inappropriate steps, on her way out the door, in an effort to distract from her mismanagement of the ICC, and perhaps try to insulate herself from legal jeopardy, by appealing to anti-US sentiments."  

An Independent Expert Review of the ICC, commissioned by the ICC member states and published by them in September, sharply criticized the ICC under Bensouda for inefficiency, pursuit of too many peripheral cases, and rampant bullying and sexual harassment, noted Kittrie.