Chief prosecutor insists ICC has jurisdiction to probe war crimes in ‘Palestine’
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Chief prosecutor insists ICC has jurisdiction to probe war crimes in ‘Palestine’

Dismissing arguments by Germany, Australia, Brazil, other countries and law experts, Fatou Bensouda doubles down; ball now in judges’ court

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Chief prosecutor of the International Criminal Court Fatou Bensouda at the opening of the court's judicial year with a Special Session at the seat of the court in The Hague, January 23, 2020. (courtesy ICC)
Chief prosecutor of the International Criminal Court Fatou Bensouda at the opening of the court's judicial year with a Special Session at the seat of the court in The Hague, January 23, 2020. (courtesy ICC)

The chief prosecutor of the International Criminal Court on Thursday reiterated her position that Palestine is a state for the purposes of transferring criminal jurisdiction over its territory to The Hague.

Dismissing the legal opinions of several states and dozens of international law scholars, Fatou Bensouda’s view, laid out in great detail in a 60-page document, could pave the way for an investigation of alleged war crimes committed in the West Bank, the Gaza Strip and East Jerusalem.

“The Prosecution has carefully considered the observations of the participants and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory,” she wrote.

It is now up to a pre-trial chamber to rule on the matter. The three judges of that chamber — Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin — have no set deadline to hand down their decision but are expected to do so within 120 days.

Israel denounced Bensouda’s decision. “I am forced to conclude that the prosecutor’s latest position continues to espouse her typical anti-Israel stance, as influenced by the Organisation of Islamic Cooperation and the global BDS [Boycott, Divestment and Sanctions] movement,” said Energy Minister Yuval Steinitz, who leads the cabinet’s handling of the ICC file.

“The prosecutor’s disregard for the opinions of many of the world’s leading experts on international law points to her determination to harm the State of Israel and tarnish its name,” he went on. “In the name of this objective she has reformulated the rules of international law, inventing a Palestinian state while the Israeli-Palestinian peace process has yet to be concluded.”

The Palestine Liberation Organization, on the other hand, welcomed Bensouda’s reaffirmation of her position. “We trust that the facts of this issue will prevail and that the long-awaited investigation into war crimes committed in the territory of the State of Palestine will soon be launched,” its executive committee said in a statement.

On December 20, concluding a five-year preliminary examination of the “situation in Palestine,” Bensouda said she has “reasonable basis to believe that war crimes were committed” in those regions by both the Israel Defense Forces and Hamas and other “Palestinian armed groups.”

At the time, she said that she herself believes the court indeed has jurisdiction to investigate possible war crimes in the regions, but, due to the controversial nature of the case, asked for a definitive ruling on the matter from a pre-trial chamber. Member states and independent experts were invited to weigh on the matter as well.

Israel has long argued that the ICC has no jurisdiction over the case not least because there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.

In February, the “State of Palestine” and seven other countries, as well as 33 international organizations and independent scholars of international law, submitted so-called amicus curiae (friend of the court) documents, offering their views on whether Palestine is a state that can transfer criminal jurisdiction over its territory to The Hague.

“Such a wide variety of perspectives will afford considerable legitimacy to the Court’s ultimate decision,” Bensouda wrote.

Germany, Australia, Austria, Brazil, the Czech Republic, Hungary and Uganda all posited that Palestine cannot transfer criminal jurisdiction over its territory to The Hague.

Even those countries that have formally recognized the “State of Palestine” along the pre-1967 lines argued that Palestine cannot necessarily be considered to have validly granted the ICC jurisdiction to probe war crimes allegedly committed in its territory.

On the other hand, the Arab League and the Organization of Islamic Cooperation — but not a single individual state (expect Palestine itself) posited that Palestine was indeed a state that could confer jurisdiction to the Hague.

In the document she published Thursday, Bensouda reiterated that her position is not about the question of Palestinian statehood per se, but rather about whether the “State of Palestine,” which is a member of the ICC, can convey criminal jurisdiction to the court. In her view, Palestine indeed fulfills all required criteria to do that.

Originally, Bensouda was given a 30-day deadline to respond to amicus curiae submissions. But in March she requested that the pretrial chamber to grant her an additional month, “due to the effect of external circumstances on the operations of the Prosecution — specifically the global pandemic of the novel coronavirus known as COVID-19.”

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