In a major decision released Friday, a pretrial chamber of the International Criminal Court 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 Fatou 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.”
Foreign Minister Gabi Ashkenazi said the chamber’s decision “rewards Palestinian terrorism and the PA’s refusal to return to direct negotiations with Israel, effectively contributing to further polarization between the parties.”
“We call on all states that see the importance in the international legal system and oppose its political exploitation, to respect the sovereign right of states to choose not to agree to the jurisdiction of the tribunal,” he added.
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.
PA Civil Affairs Minister Hussein al-Sheikh called the decision “a victory for truth, justice, freedom and moral values in the world.”
In the US, State Department spokesman Ned Price said his office was still reviewing the decision. However, he clarified that the Biden administration has “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”
“We have always taken a position that the court’s jurisdiction should be reserved for countries that consent to or that are referred to by the UN Security Council,” Price added, hinting at US opposition to the decision, given that Israel is not a member of the ICC. The US is also not a member. 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 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.
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. This could lead to a situation where certain member states would recommend that officials specified in the ruling avoid visits in order to not risk being detained.
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.
In the 60-page, two-to-one decision released Friday, the court ruled that “Palestine qualifies as ‘the State on the territory of which the conduct in question occurred,'” and that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
“The Chamber,” it continued, was “not persuaded by the argument that ‘[r]ulings on territorial jurisdiction necessarily impair a suspect/accused’s right to challenge’ jurisdiction under” the Rome Statute.
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.
“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 stated in 2019.
She also found a “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.
Despite demarcating the State of Palestine to include those three exact areas, the chamber ruled that it was “neither adjudicating a border dispute under international law nor prejudging the question of any future borders.”
In Friday’s ruling, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin represented the majority opinion of the pretrial chamber, while Péter Kovács of Hungary wrote the dissenting opinion.
Israel had the option of submitting its position on the matter to the ICC but chose not to, “out of a fundamental view that the court has no authority to carry out the investigation,” a diplomatic official told Hebrew media last year.
As such, Israel cannot appeal this ruling.
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.
Israel has long argued that the ICC has no jurisdiction, as there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.
Attorney General Avichai Mandelblit published a 34-page-long legal opinion ahead of Bensouda’s statement in 2019, detailing why Israel did not believe the court had the right to intervene. “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.
Mandelblit noted that only sovereign states can delegate criminal jurisdiction to the court, claiming that the Palestinian Authority did not meet the criteria; asserted that Israel too had “valid legal claims” over the territory in question; and added that the sides had agreed in the past “to resolve their dispute over the future status of this territory in the framework of negotiations.”
He said that by turning to the ICC, the Palestinians were “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.”
But the Friday ruling stated that “in the view of the Chamber, Palestine acceded to the [Rome] Statute…[and] thus [has] the right to exercise its prerogatives under the Statute and be treated as any other State Party would.”
In February 2020, 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.
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.
Responding to those countries in its Friday ruling, the pretrial chamber noted that none of them raised an objection when the Palestinians applied for membership at the ICC or anytime after. “Regardless of Palestine’s status under general international law, its accession to the [Rome] Statute followed the correct and ordinary procedure,” the chamber ruled.
In the first part of their decision, the panel asked whether the issue at hand was merely political and therefore not something that they could adjudicate. To this, the chamber stated that it “shall only assess the question of the Court’s jurisdiction over the Situation in Palestine and its extent. Potential consequences that might arise from the present decision are outside the scope of the Chamber’s mandate.”
While most of the international community does not recognize Palestine as a state, it is still a member of the ICC, whose members are not determined based on whether they “fulfill the prerequisites of statehood under general international,” the chamber ruled.
Netanyahu has repeatedly denounced the ICC and last May declared thwarting a possible war crimes probe to be one of the government’s top priorities.
The Foreign Ministry’s legal advisor, Tal Becker, argued in 2019 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.
Avigdor Liberman, a former foreign minister who chairs the secular, right-wing Yisrael Beytenu party, tweeted his disappointment at Friday’s decision: “While the entire world is dealing with the coronavirus, the ICC has chosen to launch its own campaign aimed at trying to damage Israel’s right to defend itself against terrorism. This is a delusional and scandalous decision.”
Last year, the Trump administration imposed sanctions against ICC officials, including revoking Bensouda’s entry visa, in response to the court’s attempts to prosecute American troops for actions in Afghanistan.
The US, like Israel, does not recognize the court’s jurisdiction. At the time, then-secretary of state Mike Pompeo said the sanctions were meant as retribution for investigations into the United States and its allies, a reference to Israel. The Biden administration has said it will review those sanctions.
Tal Schneider and Agencies contributed to this report.