ICC rules it can investigate alleged war crimes in Palestine despite Israeli objections

ICC Prosecutor Fatou Bensouda

Oliver Holmes

The Guardian  /  February 5, 2021

 Palestinian Authority welcomes ruling that could see prosecution of Israeli officials and military as well as Hamas figures.

The international criminal court has announced that it has jurisdiction in Palestine, clearing its chief prosecutor to investigate alleged atrocities despite fierce Israeli objections.

Israel’s prime minister, Benjamin Netanyahu, condemned the ruling and said the country would “protect our citizens and soldiers in every way from legal persecution”.

Fatou Bensouda, the ICC chief prosecutor, has previously announced she intends to open a formal inquiry into alleged war crimes in the occupied West Bank, East Jerusalem and the Gaza Strip.

However, due to Palestine’s status as an occupied territory rather than a sovereign country, she had waited for judges to “confirm” if the court, headquartered in The Hague, had the authority.

Palestine used its UN observer state status, gained in 2012, to join the ICC and call for an investigation into Israeli actions.

Bensouda, a Gambian lawyer, has said she would investigate both the Israeli military as well as Palestinian armed groups, including the Gaza-based Hamas faction, which has been accused of “intentionally directing attacks against civilians”, according to her office.

The Palestinian Authority, an internationally recognised representative for Palestinians, still wants to pursue the case. It would see the prosecution of Israeli officials or military figures as a significant diplomatic victory. The authority is also a political rival to Hamas.

The Israeli government has argued that as Palestine is not a fully fledged state, it should not be allowed to petition the court.

However, in a statement released on Friday, ICC judges announced the court did in fact have jurisdiction.

While making clear the court was not taking a stance on any border disputes, the judges said the court’s territorial jurisdiction extended “to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”.

It rejected Israel’s arguments, stating that Palestine had “the right to be treated as any other state party” to its statute.

Hussein al-Sheikh, the Palestinian Authority’s civil affairs minister, said on Twitter that the ruling was “a victory for rights, justice, freedom and moral values in the world”.

Netanyahu attacked the decision. “Today the ICC proved once again that it is a political body and not a judicial institution,” he said, adding that Israel was not a member of the ICC.

While Israel has not signed up to the international treaty, the ICC’s mandate is to prosecute people, not countries, including those from states that are not signatories.

Netanyahu has previously called for sanctions against the court and people who work for it. Donald Trump’s administration used a similar tactic to block a separate abandoned ICC investigation into the conduct of US troops in Afghanistan.

While Joe Biden’s administration says it disagrees with ICC action against Israel, it says it is reviewing those sanctions, a move that worries Israel.

However, US state department spokesman Ned Price said Washington had “serious concerns” over Friday’s ICC ruling.

It was not clear if Netanyahu also intends to block ICC officials from entering the Palestinian Territories, which could hamper its work because Israel controls access to the West Bank and Jerusalem.

Bensouda has said she intends to investigate incidents that occurred during the 2014 Gaza war between Israel and Hamas.

The case could also be expanded to include the alleged killings by Israeli soldiers of more than 200 Palestinians, including more than 40 children, at demonstrations along the Gaza frontier.

Separately, Bensouda argued there was a “reasonable basis” to believe that Israeli authorities had committed war crimes by moving Israeli civilians into the West Bank to live in settlements.

Under the Geneva convention, signed after the second world war, the transfer of civilians into occupied land is prohibited.

Oliver Holmes is the Jerusalem correspondent for The Guardian