Israel Tells ICC It Has No Jurisdiction to Probe Alleged War Crimes

In March ICC prosecutor Fatou Bensouda announced it would investigate Israel and Hamas for possible war crimes committed in the territories since June 2014

Judy Maltz
Judy Maltz
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International Criminal Court in Haag, 2019.
International Criminal Court in Haag, 2019.Credit: Peter Dejong
Judy Maltz
Judy Maltz

Israel told the International Criminal Court in The Hague on Friday that it has no jurisdiction to investigate alleged Israeli war crimes against Palestinians in the West Bank, East Jerusalem and the Gaza Strip. 

On March 3, ICC prosecutor Fatou Bensouda announced it would investigate Israel and Hamas for possible war crimes committed in the territories since June 2014. Formal notices were sent out March 9, giving Israel and the Palestinian Authority until April 9 to apply for a deferral by proving they are carrying out their own investigations into the alleged offenses.

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Prime Minister Benjamin Netanyahu, Defense Minister Benny Gantz and Foreign Minister Gabi Ashkenazi held a meeting on the matter Wednesday and continued deliberations Thursday. National Security adviser Meir Ben-Shabbat, Attorney General Avichai Mendelblit and other senior officials also attended the meeting. 

According to a statement released by the Prime Minister's Office, Israel has decided to adopt the recommendations of the inter-ministerial team headed by the National Security Council not to cooperate with the ICC.

"However, Israel has decided to respond to the notice sent by the ICC and make clear it is acting without having the jurisdiction to do so. Moreover, it should be noted that Israel is a law-abiding country that is capable of carrying out its own investigation," the statement said. 

"Israel vehemently rejects the claim that is committing war crimes and stresses its unequivocal stance that the ICC has no jurisdiction to open a probe against it. This stance has been made clear to the ICC through other countries and world-renowned experts," the statement added.      

In an opinion issued in late 2019, Bensouda discussed three types of possible crimes: those committed by both Israel and Hamas during their war in summer 2014; those committed by Israel during mass Palestinian demonstrations along the Gaza-Israel border starting in March 2018; and those committed by Israel through settling Israeli civilians in occupied territory.

Smoke rises after Israeli missile strikes hit the northern Gaza Strip, 2014.Credit: Adel Hana,AP

In the first stage, testimony will be taken from victims of the alleged crimes. Israel will presumably refuse entry to ICC officials, so this testimony will be taken in The Hague, Netherlands, where the court is based, or in other countries.

Next, the prosecutor may try to take testimony from former Israeli soldiers belonging to organizations like Breaking the Silence, who could testify about the army’s rules of engagement and how they were implemented. Testimony will also be taken from human rights organizations and experts.

Nick Kaufman, who currently serves as a defense attorney before the ICC and formerly worked as a prosecutor there, said a distinction should be drawn between potential crimes relating to Israel’s operations in the Gaza Strip and those relating to Israel’s settlement enterprise.

The hardest part of the investigation for the prosecution, Kaufman said, will be to obtain evidence “that connects decision makers with the crimes that were allegedly committed.” If such evidence is found and suspects can be identified, the prosecution would ask the court to issue arrest warrants. But Kaufman said “a good many years” could pass until such warrants are issued, if ever.

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