The International Criminal Court’s chief prosecutor said on Friday that there was a “basis” for proceeding with an investigation into crimes allegedly committed in the Palestinian territories. The decision came five years after the ICC first opened a preliminary examination at the request of the Palestinians.
“I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine,” prosecutor Fatou Bensouda said.
She added that “there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza” by the Israel Defense Forces for allegedly launching disproportionate attacks and “wilful killing and wilfully causing serious injury to body or health… and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions.”
She said there was also “reasonable basis to believe that members of Hamas and Palestinian armed groups committed… war crimes” by targeting civilians and torturing individuals.
Bensouda said Israel’s settlement policy in the West Bank could also constitute a war crime, as could its response to weekly protests along Gaza’s border with Israel held since March 2018.
She added that before opening the probe she would ask the Hague-based tribunal to rule on the territory over which it has jurisdiction, as Israel is not a member of the court.
Her statement indicates that a full investigation could be launched, which could include charges against Israelis and Palestinians.
Israeli officials anticipated the move and made public an attorney general report earlier Friday arguing that the court has no jurisdiction for an investigation. “We have information that the prosecutor is about to issue the results of the preliminary examination in the near future, without taking into consideration Israel’s legal opinion,” said Foreign Ministry spokesperson Lior Haiat on Friday afternoon during a hastily arranged phone briefing for diplomatic reporters.
In a last-ditch effort prior to the prosecutor’s announcement to persuade her of this argument, Israeli Attorney General Avichai Mandelblit published a 34-page-long legal opinion detailing his reasoning.
“The principled legal position of the State of Israel, which is not a party to the ICC, is that the Court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the Court are legally invalid,” Mandelblit wrote in the report, which is available on the Foreign Ministry website.
He laid out several points in a statement issued by the Government Press Office. First, he said, only sovereign states can delegate criminal jurisdiction to the court and the Palestinian Authority did not meet the criteria for statehood under international law and the Court’s founding statute.
The move by the Palestinians in 2015 to join the Rome Statute, the 1998 treaty that established the ICC, “does not meet, nor can it replace, the substantive test requiring criminal jurisdiction to have been delegated to the court by a sovereign state with a defined territory.”
Second, Israel has “valid legal claims over the same territory,” and “Israel and the Palestinians agreed, with the support of the international community, to resolve their dispute over the future status of this territory in the framework of negotiations.”
Third, said Mandelblit, by turning to the ICC, the Palestinians “are seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings.”
The ICC was not established for such purposes, nor does it have the authority or capacity to determine such matters, especially in the absence of the consent of the parties, Mandeblit said in a statement.
The preliminary examination by the ICC was launched in 2015 after the PA signed the Rome Statute and formally accepted the court’s jurisdiction over its territory. It probes Israeli construction beyond the Green Line, the 2014 Gaza War and the so-called March of Return Gaza border protests that began in March 2018.
In response to the attorney general’s statement, the assistant minister for multilateral affairs at the Palestinian Authority Foreign Ministry, Ammar Hijazi, called the AG’s decision “irrelevant” and said the Palestinians have jurisdiction over the territory.
“The State of Palestine is the only sovereign of the occupied territory of #Palestine & the colonizers have no say over this land. Palestine granted jurisdiction to the ICC to investigate crimes committed over its land. The opinion of the Israeli occupation’s AG is irrelevant,” Hijazi tweeted.
During the press briefing Friday, several Israeli officials said they were not certain when Bensouda would issue her opinion and what exactly it would say, but insisted it was in Israel’s best interest to make public its arguments now.
The Foreign Ministry’s legal advisor, Tal Becker, argued that only sovereign states can delegate to The Hague criminal jurisdiction over their territory, but that “Palestine” cannot be considered a sovereign state, because, among other reasons, it does not control the territory it claims.
“If the prosecutor decides to indeed open an investigation, it will prove that her office is driven by political motivations and not purely legal ones,” Becker said.
“At the end of the day, the ICC was established as a court of last resort, and the effort to drag the Israeli-Palestinian conflict into the court would reveal the politicized nature of the court,” he went on.
“There is a Palestinian effort to criminalize the conflict, where only the Israelis have legal obligations and only the Palestinians have rights. But as history has shown, that will only drive the two sides further apart,” Becker said. “Law is relevant to some extent in peacemaking but criminalizing the relationship [between Israel and the Palestinians] is sure to polarize.”
Added Becker: “In our view, the legal situation regarding jurisdiction is not complicated. There is no sovereign state of Palestine. There is no need for legal expertise. What’s needed is legal integrity.”
Bensouda has in the past indicated that the question of whether the court has jurisdiction was a complicated one, which is why the attorney general last year decided to issue a paper explaining Israel’s point of view, said Roy Schöndorf, the deputy attorney general for international law at the Justice Ministry.
“Since then, a group of the best lawyers and legal experts at the Justice Ministry, the National Security Council and the Foreign Ministry having been working on the report, which in my view is very convincing,” he added.
Mandelblit had announced last year that he considered publishing Israel’s reasoning in rejecting the court’s jurisdiction. In light of the prosecutor indicating earlier this month that she intends to reach a decision on the matter soon, he issued his opinion at the present time, he said.
The attorney general’s report only deals with the ICC’s supposed lack of jurisdiction. Mandelblit did not address other matters the prosecutor has to take into account as she weighs whether to open an investigation, such as whether the alleged crimes committed in “Palestine” are grave enough to merit the court’s involvement, or whether local courts can be relied on to investigate these alleged crimes.
In the ICC’s Report on Preliminary Examination Activities, which was published on December 5, the Prosecutor’s Office noted that the Israel-Palestine conflict had been under preliminary examination for almost five years, during which the office’s “understanding and assessment of the situation” have been deepened. Therefore, Bensouda believes “that it is time to take the necessary steps to bring the preliminary examination to a conclusion,” the report stated.
This year’s report, like previous ones, highlighted that the question of jurisdiction presents a “unique challenge” to the court.
“In particular, the Office has considered the scope of the Court’s jurisdiction as well as possible challenges thereto,” the document stated. “During the reporting period, the Office has sought to finalize its position on the preconditions to the exercise of the Court’s jurisdiction.”
The report had made headlines in Israel for stating that Bensouda “followed with concern proposals advanced during the recent electoral process, to be tabled to the Knesset, for Israel to annex the Jordan Valley in the West Bank.”
Netanyahu has repeatedly promised to quickly apply Israeli sovereignty over the Jordan Valley — a quarter of the West Bank — if he is able to put together a new government amid the ongoing political gridlock. His Likud party has even claimed that the premier is only interested in staying in office for an additional six months — a unity coalition negotiation demand — in order to see the promise through.
The Palestinians, too, were unhappy about this year’s report, as it highlighted the Palestinian Authority police’s alleged torture of civilian detainees and the PA’s financial compensation of those involved in carrying out terror attacks against Israelis.
AFP contributed to this report