After years of delays into launching a full investigation into Israeli war crimes committed in the occupied Palestinian territory, Chief Prosecutor of the International Criminal Court (ICC) Fatou Bensouda announced on Friday that there is basis to investigate Israel for its actions in the West Bank and Gaza.
“I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine,” Bensouda wrote in her statement, adding that due to the “unique and highly contested legal and factual issues attaching to this situation” she requested the court decide over the question of its jurisdiction in the Palestinians territories.
The court has been conducting preliminary investigations into potential war crimes committed by Israeli in the occupied territory since 2014, before Israel’s devastating war on Gaza that year.
Earlier on Friday, out of fear of a looming ICC investigation, Israel’s Attorney General Avichai Mandelblit published a legal opinion Friday that the court has no jurisdiction in the West Bank or in Gaza.
On the question of the court’s jurisdiction, Bensouda wrote:
“This foundational question should be decided now, and as swiftly as possible in the interests of victims and affected communities; potential witnesses and their related protection needs and obligations as well as the conduct of the investigations and the efficiency of the judicial proceedings, not to mention providing clarity for the States concerned.”
According to Haaretz, Bensouda’s full opinion highlighted the 2014 Israeli offensive on Gaza, saying “there is a reason to believe that war crimes were committed” and that evidence suggests that Israeli forces “intentionally launched disproportionate attacks in relation to at least three incidents” that the court has focused on.
The full opinion also reportedly noted Israeli settlement construction in the West Bank and Israel’s intentions to annex portions of the occupied territory, as well as potential crimes committed by Hamas and other armed Palestinian factions in Gaza.
Israeli Prime Minister Benjamin Netanyahu responded to Bensouda’s announcement by calling it a “a dark day for truth and justice,” reinforcing the Israeli position that the ICC has no jurisdiction in the case.
“The ICC only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state,” Netanyahu said in a statement, adding that Bensouda’s decision “has turned the International Criminal Court into a political tool to delegitimise the State of Israel.”
Despite the investigation potentially having implications for Palestinians as well, the Palestinian leadership welcomed Bensouda’s announcement.
Senior Palestinian official Saeb Erekat called the decision a “positive and encouraging step that, “brings us closer to…putting an end to the impunity of the perpetrators and contributing to the achievement of justice.”
“It is the final step towards opening a criminal investigation, and it is a message of hope to our people, the victims of those crimes, that justice is indeed possible,” Erekat said, urging the court to move swiftly towards opening a full investigation, adding that Palestine would fully cooperate with the court in any related proceedings.
Executive Committee member of the PLO Dr. Hanan Ashrawi also lauded Bensouda’s announcement, saying there was “no doubt that the International Criminal Court has jurisdiction in Palestine, by virtue of Palestine’s accession to the Rome Statute and our communication with the Court five years ago granting it such jurisdiction.”
“Israel must pay for its crimes and the Palestinian people will not accept exclusion from the universality of human rights. We are empowered and determined to achieve justice, redress, and accountability through international mechanisms, including the ICC,” she said.
Earlier this month, hundreds of rights groups from around the world signed on to a Dutch petition urging the ICC to open its investigations into Israeli actions in Palestine without further delay. The groups expressed their frustrations over Bensouda’s refusal to press charges l over theIsrael’s deadly 2010 raid on the Gaza Freedom Flotilla.
In November 2012 the UN admitted Palestine as an Observer State. Before that date the ICC Prosecutor declined the possibility for Palestine to accept the Court’s jurisdiction due to the fact that Palestine could have not been considered a State for the purposes of the Rome Statute. But after thtat date (and Palestine’s second attempt in 2015) the ICC Prosecutor did accept the retrospective ad hoc jurisdiction over Palestinian territory and nationals. The International Criminal Court even held a ceremony on the same date at the seat of the Court in The Hague to welcome Palestine as the 123rd State Party to the Rome Statute.
But Israel’s delusional legal advisers think that they still can deny the statehood of Palestine by claiming that is not a “souvereign” state. This is quite stupid, because a state cannot exercise its souvereignity as long as it is under belligerent occupation or under mandate.
Haven’t we been here before? The most likely scenario: the Apartheid state mobilizes its vassal state, the United States, with marching orders to use its full economic and diplomatic power to halt the ICC in its tracks, throwing in accusations of antisemitism. ICC, under pressure by the US and its satellite states in Europe, withdraws the investigation. Oppression and Apartheid rule supreme for a few more decades.
“Netanyahu said in a statement, adding that Bensouda’s decision ‘has turned the International Criminal Court into a political tool to delegitimise the State of Israel.’
What “State of Israel”? “Israel” has yet to officially declare its borders and have them agreed to as such by the international community.
She might want to start watching her back…Zionists…
Law (and politicized law especially) is complex, and welcoming ceremonies may not in the end constitute a basis for jurisdiction, but we may hope that the ICC finds jurisdiction to investigate the many questions of war crimes in I/P.
As to”is there a sovereign state” question, there was of course a state of Palestine, under the League of Nations Mandate system, mandate granted to Britain. Did that state persist after events of 1947 at UNGA and events of 1947-50 (war of 1948)? Did Egypt and Jordan, in 1948-50, occupy Palestine, occupy Israel, or occupy terra nullius (nobody’s land)? One might also ask whether Israel itself occupied Palestine or terra nullius. Britain gave up its mandate in 1947 and perhaps thereby evaporated the previously existing state (and it was a state, with its own passports, postage stamps, etc.)