Hamas on Saturday welcomed an International Criminal Court ruling that paves the way for a war crimes probe against Israel, but also makes the terror group a potential target for investigation.
“Any decision that contributes to supporting the rights of the Palestinian people and defends their freedom is an appropriate decision, consistent with human values, human rights charters, protection of civilians under occupation and the prosecution of war criminals,” said the terror group, which rules the Gaza Strip and openly seeks to destroy Israel.
“The Palestinian people await the day that the occupation and its leaders are brought to trial for their crimes against it. We call to use all means to stop Zionist terror and crimes against the Palestinian people,” Hamas said in a written statement.
Hamas said Israel “has often found in international silence a justification for continuing its criminal practices” and expressed confidence that any court with integrity “will be on the side of the Palestinian people.”
The group made no comment on the fact that it too is likely to be investigated if a probe is launched.
In a major decision Friday, a pretrial chamber of the ICC determined that The Hague has jurisdiction to open a criminal investigation against Israel and the Palestinians for war crimes alleged to have taken place in the West Bank, Gaza Strip and East Jerusalem.
ICC chief prosecutor Fatouh Bensouda indicated in 2019 that a criminal investigation, if approved, would focus on the 2014 Israel-Hamas conflict (Operation Protective Edge), on Israeli settlement policy and on the Israeli response to protests at the Gaza border.
The ICC doesn’t try countries, but rather individuals. Israeli officials said Friday they do not currently anticipate any immediate threats to senior Israeli political or military figures.
Prime Minister Benjamin Netanyahu condemned Friday’s ruling: “Today the ICC proved once again that it is a political body and not a judicial institution,” he said. “The ICC ignores the real war crimes and instead pursues the State of Israel, a state with a strong democratic government that sanctifies the rule of law, and is not a member of the ICC.
“In this decision,” Netanyahu added, “the ICC violated the right of democracies to defend themselves against terrorism, and played into the hands of those who undermine efforts to expand the circle of peace. We will continue to protect our citizens and soldiers in every way from legal persecution.”
The US State Department also objected to the decision. “We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council,” it said.
Israel is not a member of the ICC and neither is the US. The Palestinians joined the court in 2015.
The ICC is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes. Israel’s military has mechanisms to investigate alleged wrongdoing by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of fending off an ICC investigation into its wartime practices.
When it comes to settlements, however, some experts say Israel could have a difficult time contesting international law forbidding the transfer of a civilian population into occupied territory.
Palestinian Authority Prime Minister Mohammed Shtayyeh on Friday praised the decision, calling it “a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families,” according to the official Wafa news agency.
The move is a “message to perpetrators” who “will not go unpunished,” Shtayyeh added.
If Israel and/or Hamas are ultimately convicted of war crimes, and if senior officials are named in such a verdict, they could be subject to international arrest warrants upon travel abroad.
The three-judge panel was ordered to reach a conclusion on the ICC’s right to exercise jurisdiction in December 2019, after Bensouda determined at the end of her own five-year probe into the “situation in Palestine,” that there was “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions by both the IDF and terrorist group Hamas, as well as other “Palestinian armed groups.”
At the time, Bensouda said that she believed the court indeed has jurisdiction, under the terms of the Rome Statute which established the ICC, to investigate possible war crimes in the area. But due to the controversial nature of the case, she asked for a definitive ruling from the pre-trial chamber. Member states and independent experts were invited to weigh in on the matter as well. Israel, rejecting the court’s jurisdiction in the matter, chose not to do so.
The case now returns to Bensouda, to decide whether she will move forward with a criminal investigation. Based on her 2019 ruling, she is expected to do so. Still, her term as prosecutor is set to expire in June and some Israeli officials believe that her as yet unelected successor could take a different path.
Israeli officials will meet in the coming days to discuss strategy moving forward, including the possibility of a shift away from the current path of refusing to cooperate with the ICC, Foreign Ministry officials said.