Maureen Clare Murphy
The Electronic Intifada / February 9, 2021
The International Criminal Court has territorial jurisdiction to investigate suspected war crimes in the West Bank and Gaza Strip, a panel of judges affirmed last week.
Israeli government figures condemned the ICC judges’ decision, with Prime Minister Benjamin Netanyahu calling it “pure anti-Semitism.”
Fatou Bensouda, the ICC chief prosecutor, concluded a five-year preliminary examination of the situation in Palestine at the end of 2019, stating that criteria for war crimes investigations in the occupied West Bank and Gaza Strip had been met.
Bensouda gave three examples of crimes meeting the threshold requirement of court jurisdiction in relation to the situation in Palestine.
She stated that there is a basis to believe that both the Israeli military and members of Hamas and other Palestinian armed groups committed war crimes during hostilities in Gaza during 2014.
The second example given by Bensouda is the transfer of Israel’s civilian population into West Bank settlements.
The chief prosecutor also pointed to the Israeli military’s use of force against Palestinians during Great March of Return protests in Gaza beginning in March 2018.
Bensouda, who will be retiring in June, had asked a pre-trial chamber – a panel of judges – for guidance on whether the court has jurisdiction in those territories.
A coalition of Palestinian human rights groups praised the “landmark” ruling as “a critically important step towards ensuring the rule of law” and “towards ending impunity.”
The groups called for “immediate action” by the prosecutor “to ensure justice and accountability for Palestinian victims.”
Those four organizations – Al-Haq, Al-Mezan, Al-Dameer and the Palestinian Center for Human Rights – have submitted “six substantial communications and thousands of eyewitness files” to the prosecutor’s office.
The rights groups are “routinely faced with hostile measures of collective punishment from Israel,” including “a protracted campaign of smears and death threats.”
Israeli officials lashed out after the ruling on territorial jurisdiction was announced, relying on well-worn and baseless accusations of anti-Semitism while ignoring the substance of the court decision.
In a video address on Friday, Netanyahu stated that “we will fight this perversion of justice with all our might.”
Naftali Bennett, an Israeli lawmaker and head of Yamina, a right-wing party, said on Sunday: “If the International Criminal Court is making a list of so-called Israeli [war crimes] suspects, I ask that my name be put at the top of that list.”
Bennett has previously bragged that he has “killed lots of Arabs.”
“What matters is not what the Gentiles will say but what the Jews will do,” he stated – echoing a notorious phrase attributed to Israel’s founding prime minister David Ben-Gurion.
ICC scrutiny has likely prevented Israel from destroying Khan al-Ahmar previously.
In 2018, Bensouda expressed concern over the “planned eviction” of Khan al-Ahmar, adding that extensive destruction of property and population transfers in occupied territory are crimes.
Israeli leaders have attacked Bensouda, who was subjected to economic sanctions last year under an executive order made by then US President Donald Trump that is currently under review by the Biden administration.
Danny Danon, Israel’s former UN envoy, said on Friday that “if anyone should be on the stand,” it should be Bensouda.
Israel rallies its allies
Meanwhile, Israel is again seeking to enlist its allies in its fight against international justice.
On Sunday, the Israeli foreign ministry instructed its ambassadors to lobby the governments in which they are posted to issue statements opposing the judges’ ruling.
As of Monday evening, the European Union had issued no statement about the ICC decision via its social media channels.
But in response to a query from The Electronic Intifada, an EU foreign affairs spokesperson wrote that the bloc “has taken careful note” of the ruling and that it is “a strong supporter of the ICC and of its independence.”
“Both the ICC and its prosecutor are independent and impartial judicial institutions with no political objectives to pursue,” the statement added, contradicting claims of bias made by Netanyahu and other Israeli leaders.
The lack of criticism of the decision by the reliably pro-Israel EU will likely set off alarm bells among Israeli leaders.
Notably, however, some EU member states – including Hungary, Austria, Germany and the Czech Republic – had intervened at the court on Israel’s behalf, urging the judges to rule against territorial jurisdiction.
Israeli officials claim that some ICC member states “have agreed to give advance warning to Israel of any intent to arrest” its citizens upon arrival to their countries, the Tel Aviv daily Haaretz reported on Sunday.
Providing tip-offs that could allow suspects to escape investigation or arrest would likely violate the obligations that member states have under the ICC’s founding Rome Statute to cooperate with the court’s work.
Haaretz added that Israel has a list of hundreds of officials who might be investigated and prosecuted by the court, which tries individuals, not states.
Any war crimes trials, however, are likely a long way off, but an investigation may begin imminently.
The ICC moved into an investigation phase as soon as the chief prosecutor closed the preliminary examination in 2019, Susan Power, a legal researcher at Al-Haq, told Al Jazeera English on Friday.
But in their ruling on territorial jurisdiction, the ICC judges warned that there might be “a protracted process,” suggesting that there could be further delays, as Power explained.
“We would say we can no longer wait any further,” Power said. “We must see an immediate investigation,” noting that the “files are already there.”
Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago