ICC Approves Probe Into Possible War Crimes by Israel, Hamas in Palestinian Territories

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Smoke and fire rise over Gaza City during the 2014 war with Israel.
Smoke and fire rise over Gaza City during the 2014 war with Israel.Credit: Hatem Moussa,AP

UPDATE: What does the ICC ruling mean for Israel, the IDF and the Palestinians?

The International Criminal Court in The Hague approved on Friday the prosecutor's request to open legal proceedings against Israel and Hamas on suspicion of committing war crimes in the West Bank, East Jerusalem and the Gaza Strip.

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Judge Marc Perrin de Brichambaut of France and Judge Reine Alapini-Gansou of Benin accepted the findings of Prosecutor Fatou Bensouda’s preliminary investigation from December of 2019 that there is a basis for investigating the matter further, and ruled that the court does have jurisdiction in the Palestinian territories, rejecting Israel's argument that it lacks such authority. The ruling passed with a 2-1 vote, with Presiding Judge Peter Kovacs of Hungary issuing a dissenting opinion.

The court noted that it is “not constitutionally competent to determine matters of statehood that would bind the international community,” explaining that its ruling on jurisdiction is “neither adjudicating a border dispute… nor prejudging the question of any future borders.”

"Today, the court proved once again that it is a political body and not a judicial institution," Prime Minister Benjamin Netanyahu said of the news.

ICC Chief Prosecutor Fatou Bensouda during a trial at The Hague, July 8, 2019.Credit: Eva Plevier / Reuters

"The court ignores real war crimes, and instead persecutes Israel, a country with a stable democratic regime that holds up the rule of law and is not a member of the court. With this decision, the court harmed democratic nations' right to defend themselves from terrorism and played into the hands of elements that undermine efforts to expand the circle of peace." Netanyahu added, "We will continue to protect our citizens and our soldiers in every way from legal persecution."

A senior Israeli official in the Justice Ministry said that an investigation had yet to be opened nor had any particular individuals been targeted following the court's decision. The official added, "We are preparing to mount a full defense for any Israeli citizens that the court attempts to legally persecute if an investigation is opened."

The Palestinian Foreign Ministry meanwhile hailed a "historic day for the principle of accountability" and said it was ready to cooperate.

In Washington, State Department spokesman Ned Price said: "We have serious concerns about the ICC's ability to exercise jurisdiction over Israeli personnel. We have always taken the position that the court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council. This decision just came out, we're aware of it, and we're reviewing it.

Price tweeted later Friday that "The United States objects to today’s [ICC] decision regarding the Palestinian situation. Israel is not a State Party to the Rome Statute," adding "We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly."

Foreign Minister Gabi Ashkenazi said the decision “distorts international law and turns this institution to a political tool in the hands of anti-Israel propogandists. The International Criminal Court has no jurisdiction to discuss the Palestinian case.

“The judges’ decision is a prize for Palestinian terror and the refusal of the Palestinian Authority to return to direct negotiation with Israel, and contributes, in practice, to polarizaiton between the sides,” he continued. “We call on countries that finds importance in the international justice system and opposes its political exploitaiton to respect countries’ sovereign right to choose not to accept the court’s authority. The State of Israel will use every method necessary to protect its citizens.”

Israeli Ambassador to the United States Gilad Erdan tweeted Friday that the decision "is distorted and antisemitic," adding that it is an "attack on Israel and all democracies, undermining our ability to defend civilians against terrorism."

He added that "The court was established to investigate the world's gravest war crimes, but instead it meddles in political disputes, rewarding Palestinian terrorists and pushing the Palestinians further away from the momentum of peace now taking place in our region." 

The prosecutor announced in late 2019, after issuing a number of warnings, that there was a basis for launching a probe against Israel and Hamas on suspicion of war crimes in the territories since 2014, in the wake of a petition by the Palestinian Authority.

Bensouda initially asked of the court to rule on the question of its territorial jurisdiction in the West Bank and Gaza. She did so because Israel argues that only countries with sovereignty can give the court criminal jurisdiction and that the matter is a political dispute.

Besouda wrote in 2019 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. She also 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 [on],” which intentionally lead to killings and a significant number of injuries.

"There is a reasonable basis to believe that… members of the Israeli authorities have committed war crimes by transferring Israeli civilians into the West Bank," Bensouda said, adding that "Despite the clear and enduring calls that Israel cease activities in the Palestinian Territories [that have been] 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 should he win reelection.

In relation to Gaza, she wrote: “The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.”

The prosecutor added that there is "A reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes” during Operation Protective Edge, including “Intentionally directing attacks against civilians and civilian objects, using protected persons as shields” and torture.

In July, U.S. President Donald Trump, in coordination with Israel, ordered the levying of sanctions on individuals and groups involved in the ICC investigation of suspected U.S. war crimes in Afghanistan. Senior administration officials said a number of times that they would also see the decision to investigate Israel as a “political” decision that may provoke a further American response. The U.S. decision triggered a wave of opposition by dozens of countries, which this week affirmed their support for the international court.

Ben Samuels and Reuters contributed to this report. 

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