Fearing Investigation, Israel Says Hague Has No Jurisdiction in West Bank or Gaza

In an official legal opinion, Attorney General Mendelblit said 'Palestinian actions with respect to the Court are legally invalid'

Noa Landau
Noa Landau
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Attorney general Avichai Mandelblit speaking to reporters, Jerusalem, December 18, 2019.
מנדלבליט בטקס חילופי פרקליט המדינה בירושלים, שלשוםCredit: Ohad Zwigenberg
Noa Landau
Noa Landau

Israel's attorney general published a legal opinion Friday 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."

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."

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 ramework 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."

In 2015, Bensouda began investigating whether Israel committed war crimes in the Palestinian territories, including in Jewish settlements and in Gaza. In April, after the protests started on the Israel-Gaza border fence, the prosecutor said that violence against civilians could constitute an international crime, as could the use of civilians "to defend military activity."

In recent months, Israel transferred – through a third party – materials to the international court that pertain to the 2014 Gaza War. Political and security officials have expressed concern that the court would open a criminal investigation, which would lead to a wave of lawsuits against those involved in Gaza, including the possibility that they would be arrested upon entering foreign countries.

In September, the Palestinian leadership petitioned the International Criminal Court, calling to start legal procedures against the Israel over its actions at Khan al-Ahmar.

The Foreign Ministry said in response that "The prosecutor's office yearly report on its preliminary probes was just published and we are looking into it. As is well known, Israel is not a member of the International Criminal Court and our clear stance is that the court does not have authority to deal with the Israeli-Palestinian conflict, among other things because the Palestinian Authority is not a state. We expect that the prosecutor will determine the same thing at the conclusion of the preliminary probe."

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