The decision that the International Criminal Court has jurisdiction over crimes in the West Bank, Gaza Strip and East Jerusalem paves the way for an inquiry into allegations of war crimes by both Israel and Hamas in those areas.
The pretrial chamber of judges, in a 2-1 ruling, thereby accepted the position of prosecutor Fatou Bensouda, who had asked it to rule on this issue after concluding that there were grounds for such an investigation.
The decision, published Friday, raises many questions.
Which alleged war crimes are at issue?
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.
What is likely to happen now?
Bensouda is expected to announce an intent to launch an investigation. There’s no deadline by which she must do so, but it’s worth noting that her term as prosecutor ends in June.
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If and when she makes this announcement, Israel will have 30 days to inform her that it intends to conduct its own investigation into any of its citizens responsible for planning or executing crimes covered by the ICC’s founding treaty – war crimes and crimes against humanity. But even if Israel does announce such an intention, it must be approved by the prosecutor and the ICC.
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.
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“Unlike with investigations into disproportionate use of military force, the law enforcement agencies would have trouble investigating the alleged criminality of the settlement enterprise, which has been considered part of Israeli government policy for generations,” said Kaufman, who is also a former Jerusalem district attorney and has advised other governments in similar situations.
The ICC is expected to announce Bensouda’s replacement in the next few days. Kaufman said this time table may well lead her not to take any significant action in response to the pretrial chamber’s decision, because “then she would be locking in the next prosecutor.”
What happens if Bensouda does decide to launch an investigation?
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.
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.
Arrest warrants are generally issued secretly, and the ICC’s member states are asked to execute them.
Which Israelis could find themselves in the court’s sights?
The focus would be mainly on government decision makers and senior army officers. Low-level soldiers, as a rule, have nothing to fear, Kaufman said. The defense establishment has already drafted a list of a few hundred senior Israeli officials who could be targeted by such an investigation.
What were Israel’s counterarguments?
According to a memorandum prepared by Attorney General Avichai Mendelblit prior to the ruling, the ICC has no jurisdiction over this issue, because only sovereign states can grant it such jurisdiction. The Palestinian Authority, he said, patently fails to meet the conditions for statehood set by international law.
He also argued that the relationship between Israel and the PA is governed by diplomatic agreements, and that in these agreements, both sides agreed to resolve disputes relating to the territories through negotiations. The Palestinians, he claimed, are trying to bypass these agreements by turning to the ICC.
Can Israel appeal the court’s decision?
Government officials said that since Israel refused to take part in the proceedings, it cannot appeal the results.
Is the PA’s rejoicing over this decision warranted?
The PA is the party that asked the court to investigate Israel over alleged war crimes. But because the decision allows the investigation of all war crimes committed during Operation Protective Edge in 2014, it also applies to Hamas.
Kaufman added that it would actually be easier for the court to launch an investigation against the Palestinians.
“The easiest case, from an evidentiary standpoint, is the issue of the Qassam rockets from Gaza,” he said. “Hamas isn’t going to investigate itself on this issue, and nobody is going to recognize a Hamas court as an independent court for this purpose. In contrast, Israel can announce that in light of the suspicions that have been raised, it has decided to consider renewing its own investigations.”
Does the decision mean the ICC recognizes Palestine as a sovereign state?
No. Palestine is defined as an ICC member state that has the ability to grant the court jurisdiction to investigate crimes in its territory, but the ruling doesn’t mean the court recognized Palestine as meeting the criteria for statehood under international law.
“By ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders,” the judges wrote, adding that their decision is “without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court’s jurisdiction.”