Dec 20, 2019

International Criminal Court moves closer to investigation of Israel

Protests in the Hague against Turmp's recognition of Jerusalem as Israel's capital. Photo: Abdullah Asiran/Anadolu Agency/Getty Images

In an announcement that will infuriate Israel and could have far-reaching international consequences, the prosecutor of the International Criminal Court announced today that there is a basis for opening an investigation regarding the situation in the occupied Palestinian territories.

But, but, but: The prosecutor referred the issue to the court’s judges and asked for their opinion within 120 days as to whether the Hague-based court has jurisdiction in the matter. Today's announcement follows a five-year preliminary examination, launched at a Palestinian request.

"There is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, East Jerusalem, and the Gaza Strip."
— Prosecutor Fatou Bensouda

Why it matters: A formal investigation of Israel's actions in the West Bank, East Jerusalem and Gaza was long considered the "nuclear option." Such a decision could lead to international arrest warrants against Israeli officials and potentially U.S. sanctions against the international court.

Prosecutor Fatou Bensouda designated the alleged crimes she wants to investigate:

  • Three incidents in which the Israeli Defense Forces (IDF) allegedly committed war crimes by intentionally launching disproportionate attacks during the 2014 Gaza war.
  • Alleged war crimes committed by Hamas and other Palestinians terror organizations by intentionally directing attacks against civilians and using civilians as human shields during the 2014 Gaza war.
  • Alleged war crimes by Israeli officials who were involved in the transfer of Israeli civilians into the West Bank since June, 2014.
  • The IDF's use of lethal means — beginning in March, 2018 — against protesters near the border fence between the Gaza Strip and Israel.

Driving the news: Bensouda stressed that she does consider Palestine to be a state and thinks the court’s territorial jurisdiction extends to Palestinian territory occupied by Israel.

  • But she wrote that — due to the unique history and circumstances of the Israeli-Palestinian conflict, the fact that Palestine does not have full control over its territory and that the borders are disputed — she wants the judges to rule on the scope of the Court’s territorial jurisdiction.

Flashback: The Palestinian Authority turned to the court in 2014 after a peace initiative led by Secretary of State John Kerry broke down.

  • The Palestinians issued two complaints against Israel — the first regarding the 2014 Gaza war and the second regarding the building of Israeli settlements in the occupied Palestinian territories in the West Bank and East Jerusalem.
  • The Israeli government has countered pressure from the Palestinians to open an investigation by claiming the Hague-based court has no jurisdiction in the Israeli-Palestinian case — mainly due to the fact that Palestine is not a state.

Several hours before the prosecutor’s announcement, Israel published a comprehensive legal opinion from the Israeli attorney general claiming the ICC has no jurisdiction.

  • The main point in the attorney general’s legal opinion is that only sovereign states can delegate criminal jurisdiction to the court and the Palestinian Authority clearly does not meet the criteria for statehood under international law.
  • Another point is that Israel has valid legal claims over the same territory and both sides agreed in the past to resolve their dispute through negotiations.

What’s next: The next 120 days are expected to turn into a legal battle between Israel and the Palestinians to convince the judges to rule in their favor. The prosecutor wrote that both parties, relevant victims and other states and interested entities may address the judges.  

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