International Criminal Court Prosecutor Says Will Open Formal Investigation Into War Crimes in Palestinian Territories

Palestinian Authority, Hamas welcome Fatou Bensouda's statement, promising an 'independent, impartial and objective' probe

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Israeli artillery guns shell targets in the Gaza  Strip during the 2014 Gaza-Israel war, a conflict now under ICC investigation
Israeli artillery guns shell targets in the Gaza Strip during the 2014 Gaza-Israel war, a conflict now under ICC investigation.Credit: JACK GUEZ - AFP

The International Criminal Court prosecutor said on Wednesday her office will open a formal investigation into war crimes in the Palestinian Territories which will examine both sides in the conflict.

The decision comes after the court ruled on February 5 that it has jurisdiction in the case, a move which prompted swift rejection from Washington and Jerusalem. 

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In her Wednesday statement, Fatou Bensouda said the probe will be conducted “independently, impartially and objectively, without fear or favor.”

Bensouda, who will be replaced by British prosecutor Karim Khan on June 16, said in December 2019 that "war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip." She named both the Israeli Defense Forces and armed Palestinian groups such as Hamas as possible perpetrators.

While Israel harshly condemened the latest decision, the Palestinian Authority welcomed it, saying "This is a long-awaited step that serves Palestine's tireless pursuit of justice and accountability, which are indispensable pillars of the peace the Palestinian people seek and deserve."

The Palestinians joined the court in 2015 and have long pushed for an investigation of Israel, which is not a member of the court. 

The Islamist militant group Hamas, regarded as a terrorist organisation by Israel, the United States and the European Union, also welcomed the decision, and defended its own actions.

International Criminal Court's chief prosecutor Fatou Bensouda holds a press conference during her visit to look into allegations of extreme violence in Kinshasa, Democratic Republic of the CongoCredit: John Wessels/AFP

"We welcome the ICC decision to investigate Israeli occupation war crimes against our people. It is a step forward on the path of achieving justice for the victims of our people," Hazem Qassem, a Hamas spokesman in Gaza, told Reuters.

"Our resistance is legitimate, and it comes to defend our people. All international laws approve legitimate resistance,” said Qassem.

'Concern for victims'

"The decision to open an investigation followed a painstaking preliminary examination undertaken by my office that lasted close to five years," Bensouda stressed. "In the end, our central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides."

Bensouda is expected to send a formal notification to Israel and the Palestinian Authority in the coming days, setting off a 30-day period in which they can tell the court they intend to investigate alleged criminals themselves. In such a case, Bensouda will need approval from the court if she still seeks an immediate ICC investigation. 

In the first stage of the investigation, testimony on alleged crimes will be collected. Israel is not expected to allow ICC representatives into the country, meaning testimony will be given elsewhere. After that, the prosecution will request testimony about military rules of engagement and their implementation from human rights groups, experts, and, potentially, former Israeli soldiers. 

It could take years for the investigation to reach the point where arrest warrants might be issued. These warrants are usually issued in secret, and the  member nations of the ICC are supposed to carry them out. 

Palestinian Hamas militants deployed during a lockdown amid the COVID-19 pandemic in the northern Gaza Strip. September 7, 2020.Credit: MOHAMMED SALEM/ REUTERS

Defense officials have already written up a list of hundreds of Israelis who might find themselves under investigation – mainly government decision makers and top military brass. 

Human Rights Watch welcomed the court's move as a step toward justice for Israeli and Palestinian victims.

“The court’s crowded docket shouldn’t deter the prosecutor’s office from doggedly pursuing cases against anyone credibly implicated in such crimes,” said Balkees Jarrah, associate international justice director at Human Rights Watch.

“All eyes will also be on the next prosecutor Karim Khan to pick up the baton and expeditiously move forward while demonstrating firm independence in seeking to hold even the most powerful to account,” Jarrah added. "ICC member countries should stand ready to fiercely protect the court’s work from any political pressure.”

The court’s February decision was handed down following an appeal by Bensouda, who asked to check whether she has the authority to investigate suspected war crimes perpetrated in the territories, after a complaint was filed by the Palestinian Authority against Israel.

Israel condemned the ICC's "outrageous" ruling that allows investigations of alleged war crimes by Israel and Hamas to proceed, claiming the decision "exposes the court as a political body, standing in one line with international organizations driven by antisemitic principles."

It argues the court in The Hague "has no authority to made such a decision," as Israel is not a member state and the Palestinian Authority isn't recognized as a sovereign state. 

Reuters and the Associated Press contributed to this report.

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