International Criminal Court prosecutor Fatou Bensouda believes that Israel and the Palestinians have committed war crimes, and plans to open an investigation into the matter.
Prior to such an investigation, including into Gaza and West Bank settlements, Bensouda has sought a ruling from the ICC’s pre-trial chamber as to the extent of the territory that can fall under the scope of her probe.“There is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the [Rome] Statute,” Bensouda said on Friday, in a statement she published on the ICC website.“I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (‘Gaza’)” and that “potential cases arising from the situation would be admissible,” Bensouda wrote.“There are no substantial reasons to believe that an investigation would not serve the interests of justice,” wrote Bensouda from the court’s offices at The Hague in the Netherlands.Bensouda’s statement ended four years of speculation as to whether or not the ICC would dismiss the Palestinian Authority’s pursuit of a war crimes suit against Israelis.In a larger brief to the pre-trial chamber, Bensouda said she has reason to believe that the IDF committed war crimes in Gaza, particularly during the 2014 war.Similarly, she said, “There is a reasonable basis to believe that members of Hamas and Palestinian armed groups (‘PAGs’) committed… war crimes.”She also plans to examine IDF activity along the Gaza border since the start of the “Great March of Return” in March 2018.Separately, Bensouda wrote that she has reason to believe that the actions of the Israeli authorities in the West Bank and east Jerusalem can be considered to fall under the war crime of a transfer of civilian population into occupied territory.She clarified that she is only examining war crime claims dating back no further than June 13, 2014.In Jerusalem, Prime Minister Benjamin Netanyahu issued a scathing response, stating that this was a “black day for truth and justice” and a “baseless and scandalous decision.”“The court has no jurisdiction in this case. The ICC only has jurisdiction over petitions submitted by sovereign states, but there has never been a Palestinian state,” Netanyahu said.“The ICC prosecutor’s decision has turned the International Criminal Court into a political tool to delegitimize the State of Israel,” the prime minister said, adding that Bensouda had dismissed the legal arguments on that score, which Israel had presented to her.“She has also completely ignored history and truth when she says that the very act of Jews living in their ancestral homeland, the land of the Bible... is a war crime,” Netanyahu said.“We will not be silent. We will not bow our heads before this outrage,” he said. “We will continue to speak out before this travesty of justice.”The prime minister has written a letter to world leaders warning them that the ICC wants to turn the fact that Jews live in their ancestral homeland into a war crime.In her brief to the pre-trial chamber, Bensouda said she believes the ICC has jurisdiction on the matter and that Palestine can be considered a state, based on the UN General Assembly resolution of 2012. That resolution granted the Palestinians a non-member observer status at the UN, a move that is considered to be a de-facto recognition of Palestinian statehood.Bensouda added that the PA’s 2015 signing onto the Rome Statute, which governs the ICC, also gave the court jurisdiction.In spite of her conclusions, she decided that it was best to ensure the legality of the case by assigning the ICC’s pre-trial chamber to rule on the question of whether all or only parts of what is considered Palestinian territory fall under ICC jurisdiction. The Palestinian Authority has asked the court to consider Israeli war crimes cases in east Jerusalem, the West Bank and Gaza, all territory which it holds to be “occupied” by Israel and which would become the final borders of its state.“I have sought confirmation that the ‘territory’ over which the court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including east Jerusalem, and Gaza,” Bensouda said.“Such determination is made strictly for the purposes of determining the court’s ability to exercise its jurisdiction, and the scope of such jurisdiction under the statute,” she said.Neither Israel nor the United States are parties to the statute.She added that the question of jurisdiction must be answered before she can proceed with her investigation.“This foundational question should be decided now – and as swiftly as possible – in the interests of victims and affected communities,” she said.US Secretary of State Mike Pompeo said that the ICC had unfairly targeted Israel. Just last month he declared that the US position on the matter was that Israeli settlements in the West Bank were legal under international law.The US does not “believe the Palestinians qualify as a sovereign state, and they therefore are not qualified to obtain full membership, or participate as a state in international organizations, entities or conferences, including the ICC,” he said.Pompeo clarified the American position that the ICC does not have jurisdiction over his country or Israel, precisely because they are not party to the Rome Statute. In this case, that means the ICC cannot hear a case regarding Israel without “a referral from the UN Security Council or the consent of such a State,” the secretary explained.“We expect that the decision on the part of the United States and Israel not to join and not to place our personnel under the court’s jurisdiction will also be respected,” Pompeo said.The US is committed to achieving a lasting peace between Israelis and Palestinians, but the only way forward is through direct negotiations, he said.JUST A FEW hours prior to Bensouda’s decision, Israel’s Attorney-General Avichai Mandelblit published a decision rejecting ICC jurisdiction.“The principled legal position of the State of Israel, which is not a party to the ICC, is that the Court lacks jurisdiction in relation to Israel, and that any Palestinian actions with respect to the Court are legally invalid,” Mandelblit wrote.“Only sovereign states can delegate criminal jurisdiction to the Court. The Palestinian Authority clearly does not meet the criteria for statehood under international law and the Court’s founding statute,” he said.“The claim that the Palestinians have purported to join the Rome Statute does not meet, nor can it replace, the substantive test requiring criminal jurisdiction to have been delegated to the Court by a sovereign state with a defined territory,” he continued.“Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the Court’s jurisdiction,” Mandelblit said.In addition, he explained, if the court were to make a jurisdictional decision, it would be weighing in on a matter that is the subject of future negotiation between Israel and the PA.Israel and the Palestinians agreed to resolve the status of the territory in question through the framework of negotiations, he stated.“The Palestinians are seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings,” Mandelblit wrote.“The Court was not established for such purposes, nor does it have the authority or capacity to determine such matters, especially in the absence of the consent of the parties,” he explained.In addition, Mandelblit explained that “existing Israeli-Palestinian agreements make it clear that the Palestinians have no criminal jurisdiction either in law – or in fact over Area C, Jerusalem and Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court.”Any conclusion that the ICC has jurisdiction would not “withstand any serious legal and factual scrutiny, and would inevitably run up against the terms of the Rome Statute itself, as well as the rules of general international law more broadly.”In a briefing to the media, Foreign Affairs legal adviser Tal Becker explained that the ICC and the Palestinians had to decide if the territory in question was occupied or if it was a sovereign Palestinian state, but for the purposes of law, it could not be both.Alan Baker, former Foreign Ministry legal adviser and director of the International Law Program at the Jerusalem Center for Public Affairs, toldThe Jerusalem Post, “If the court accepts the Palestinian requests and opens a formal investigation, it will damage its own juridical credibility and become politicized like other UN bodies.“This is what the Palestinian leadership is trying to do – to the great detriment, and possibly ruination of the ICC,” Baker said.