Fearing It Will Shun ICC Proceedings, Prosecutor Presents Israel's Legal Opinion to Judges

Bensouda filed official Israeli statements asserting the Israeli-Palestinian conflict does not fall under the court's jurisdiction

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ICC Prosecutor Fatou Bensouda, July 2019.
ICC Prosecutor Fatou Bensouda, July 2019. Credit: Eva Plevier/REUTERS

International Criminal Court Prosecutor Fatou Bensouda presented to a panel of judges at The Hague an official Israeli legal opinion on the court's jurisdiction, her office said Tuesday in a statement. 

The move comes ahead of a planned hearing on the court's jurisdiction in Gaza, the West Bank and Jerusalem, expected within months, fearing Israel will boycott any legal proceedings against it in the ICC.

In an appendix presented to the court after Friday's announcement asking it to decide over the question of its jurisdiction in the Palestinians territories, Bensouda attached statements published earlier on Friday by the Israeli Foreign and Justice ministries, including Attorney General Avichai Mendelblit's legal opinion. The Israeli statements asserted that the Israeli-Palestinian conflict does not fall under the ICC's jurisdiction.

Bensouda emphasized that in preliminary investigations she was in contact with Israeli government officials and has heard their stance on the matter. This was apparently in response to claims by Israel's State Prosecutor's office that Bensouda did not wait for Mendelblit's legal opinion before publishing her initial findings.

On Friday, the Office of the Prosecutor at the ICC said that there is basis to investigate Israel for its actions in the West Bank and Gaza, but has requested the court to rule on its jurisdiction.

After five years of preliminary investigation, Besouda said she seeks to further investigate Israel and Hamas for war crimes that were allegedly committed in the context the 2014 Gaza war, the expansion of Israeli settlements in the West Bank, and clashes between Israeli troops and Palestinian demonstrators along the Gaza border fence during the weekly March of Return protests.

Mendelblit's opinion, which was circulated primarily in English in order to reach a broader audience, explains that only sovereign states can delegate criminal jurisdiction to the court. This disqualifies the Palestinian Authority, even if the Palestinians have purportedly joined the ICC's Rome Statute. It also says that "Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the Court's jurisdiction."

In addition, Mendelblit argues that the Palestinians are attempting to involve the court in a political matter "that should be resolved by negotiations, and not by criminal proceedings."

Israel is yet to decide whether it will completely shun the ICC proceedings against it, or send attorneys to represent its position. Discussions on the matter have begun this week with the attendance of State Prosecution and Foreign Ministry officials, with the Israeli government imposing a confidentiality clause on the deliberations of ministers and the cabinet on the matter.