ICC Prosecutor: There's Basis to Probe Israel Over War Crimes Against Palestinians, Court to Decide Over Jurisdiction

Fatou Bensouda asks ICC to decide over its jurisdiction in West Bank, Gaza and East Jerusalem in order to proceed with investigation

Noa Landau
Jack Khoury
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Israeli soldiers clash with Palestinian protesters in the southern West Bank city of Hebron, on December 9, 2019,
Israeli soldiers clash with Palestinian protesters in the southern West Bank city of Hebron, December 9, 2019, Credit: AFP
Noa Landau
Jack Khoury

The Office of the Prosecutor at the International Criminal Court said on Friday that there is basis to investigate Israel for its actions in the West Bank and Gaza, but has requested the Court to decide over the question of its jurisdiction in the Palestinians territories.

"In brief, I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip," Fatou Bensouda wrote in her statement.

However, Bensouda added, "Given the unique and highly contested legal and factual issues attaching to this situation," she has requested the ICC to confirm "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."

In her full opinion, Besouda wrote that "Based on the available information, there is a reason to believe that war crimes were committed in the context of the 2014 hostilities in Gaza," referring to Operation Protective Edge, which was launched after regional tensions came to a head following the murder of three Israeli teens and a Palestinian youth, as well as ceaseless rocket fire from the Strip.

Bensouda wrote that available information shows that "the Israel Defense Forces intentionally launched disproportionate attacks in relation to at least three incidents which the ICC has focused, as well as intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions."

In addition, the opinion said, "there is a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes in relation, inter alia, to the transfer of Israeli civilians into the West Bank since June 13, 2014."

Bensoura wrote that "Despite the clear and enduring calls that Israel cease activities in the Palestinian Territories deemed contrary to international law, there is no indication that they will end. To the contrary, there are indications that they may not only continue, but that Israel may seek to annex these territories."

She then cited Netanyahu's campaign promise in August and September 2019 to annex the Jordan Valley if he wins the election.

The prosecutor also wrote there is "a reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes of intentionally directing attacks against civilians and civilian objects; using protected persons as shields; wilfully depriving protected persons of the rights of fair and regular trial and willful killing; and torture or inhuman treatment and/or outrages upon personal dignity."

Prime Minister Benjamin Netanyahu responded in a statement, saying the prosecutor's decision "Has turned the International Criminal Court into a political tool to delegitimize the State of Israel. The prosecutor has completely ignored the legal arguments we presented to her."

Netanyahu blamed Bensouda of completely ignoring history "and the truth when she says that the very act of Jews living in their ancestral homeland, the land of the Bible, that this is a war crime."

Chief Palestinian negotiator Saeb Erekat praised the move in a statement, calling it "positive and encouraging." 

"The step taken by the prosecutors represents a confirmation of her position that the ICC has territorial jurisdiction to examine the ongoing crimes that are committed by Israel, the Occupying Power. It is the final step towards opening a criminal investigation, and it is a message of hope to our people, the victims of those crimes, that justice is indeed possible," Erekat said. 

Erekat added that "Israel’s hysterical reaction is that of a state that has put itself above international law, with a system of laws aimed at normalizing the situation of perpetual occupation, colonial-settlements and annexation, all of them inconsistent with international law."

U.S. Secretary of Stae Mike Pompeo criticized the prosecutor, noting that Israel is not party to the ICC and writing on Twitter: "We firmly oppose this unjustified inquiry that unfairly targets Israel. The path to lasting peace is through direct negotiations."

Earlier on Friday, Israel's attorney general published a legal opinion that the International Criminal court has no jurisdiction in the West Bank or in Gaza, amid fears that the ICC would open an investigation into Israeli actions there, a decision the court may make in the near future. In response, the ICC prosecution has requested that the court decide whether or not it does have jurisdiction over the territory.

In a media release, Attorney General Avichai Mendelblit states that the Office of the Prosecutor at the ICC has been conducting a preliminary examination in response to a request submitted by the Palestinians. But the ICC, to which Israel is not a party, "lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the Court are legally invalid."

The 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."

The issues that the Palestinians are attempting to resolve through the ICC request, the opinion continues, are not to be handled in the courts, but through negotiations. Mendelblit says the Palestinians are "seeking to breach the framework agreed to by the parties" and pressure the ICC "to determine political issues that should be resolved by negotiations, and not by criminal proceedings."

Mendelblit said he may consider addressing related issues beyond that of jurisdiction in the future.   

Mendelblit was responding to a statement made by the ICC Prosecutor's Office in early December, saying that there was significant progress toward a decision on investigating Israeli actions in the West Bank and Gaza.

The Prosecutor's Office specifically noted allegations that Israel has been involved in demolishing Palestinian property and evicting Palestinians from the West Bank and East Jerusalem. It also referenced 2014's Operation Protective Edge, the war in the Gaza Strip, as well as Israel's plan to evacuate residents of the Bedouin village Khan al-Ahmar, and Israeli construction of settlements in the West Bank.

In giving his reasons for the legal opinion, Mendelblit said that "only sovereign states can delegate criminal jurisdiction to the Court. The Palestinian Authority clearly does not meet the criteria for statehood under international law." The attorney general added that "Israel also has valid legal claims over the same territory."

Furthermore, Mendelblit claimed that "by approaching the ICC, 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."

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