ICC: Israel is accountable for its war crimes
CRIMES against humanity are regarded as the worst criminal offence under international crimenal law.
The International Criminal Court’s chief prosecutor (the outgoing prosecutor) has opened a formal investigation into alleged war crimes in the Palestinian territories.
Fatou Bensouda said the probe would cover events in the Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 2014.
Last month, the Hague-based court ruled that it could exercise its criminal jurisdiction over the territories.
We have no agenda other than to meet our statutory duties under the Rome Statute with professional integrity,” she said, The US State Department spokesman, Ned Price, criticised the decision.
“We firmly oppose and are disappointed by the ICC prosecutor’s announcement of an investigation into the Palestinian situation,” he said, adding the US “will continue to uphold our strong commitment to Israel and its security including by opposing actions that seek to target Israel unfairly”.
Palestinian Authority Foreign Minister Riyad al-Maliki said: “The crimes committed by the leaders of the Israeli occupation against the Palestinian people – which are ongoing, systematic and widespread – make this investigation necessary and urgent.
“The court’s defiance of American wishes could “enhance the reputation of the court as a genuinely independent body,” said William Schabas, a former Chairman of the U.N. Gaza Commission and a well-known expert on international law and Professor at Middlesex University in London.
The ICC ruled in February it had jurisdiction over the situation in the occupied Palestinian territories that Israel captured during the 1967 Middle East war.
Judges said their decision was based on jurisdictional rules in The Hague-based court’s founding documents, and it does not imply any attempt to determine statehood or legal borders. The Palestinians, who joined the court in 2015, have pushed for the case.
It was one of the deadliest conflicts between the two sides in decades. On the Palestinian side, more than 2,100 people — including civilians – were killed during 50 days of fighting. On the Israeli side, 67 Israeli soldiers and five civilians were killed.
If this conflict was different from previous wars, however, it was in the immediate recognition by some Israeli officials that there was a serious risk of investigation by the ICC that could ultimately lead to Israeli soldiers and politicians in the chain of command being investigated for war crimes.
That realisation prompted the Israeli military to quickly launch investigations by its military advocate’s department into some of the most controversial incidents in the conflict — a move that some critics suggested was designed to show that Israel had in effect investigated allegations even though it is not party to the international court.
Israel, which has not ratified the Rome Statue has long argued that the court has no jurisdiction.
It says there is no sovereign Palestinian State that could delegate to the court criminal jurisdiction over its territory and nationals.
But the ICC could still issue arrest warrants that would make it difficult for Israeli officials to travel abroad.
The international community widely considers the settlements to be illegal under international law.
Israel captured the West Bank, Gaza and east Jerusalem in the 1967 war, territories the Palestinians want for their future state.
The decision dealt an embarrassing blow to the Israeli government, which had conducted an aggressive public relations and behind-the-scene diplomatic campaign to block the investigation.
It also raised the possibility of arrest warrants being issued against Israeli officials suspected of war crimes, making it potentially risky to travel abroad.
“The State of Israel is under attack this evening,” Prime Minister Benjamin Netanyahu said in a videotaped statement.
“The biased international court in The Hague made a decision that is the essence of anti-Semitism and hypocrisy.
” The decision by Fatou Bensouda, the court’s outgoing prosecutor, had been expected since the court determined last month that she had jurisdiction over the case.
A preliminary probe by Bensouda in 2019 had found a “reasonable basis” to open a war crimes case.The Office of the Prosecutor is now expected to open a formal investigation.
It said it was analyzing the judges’ decision and would then decide next steps guided by its mandate and obligations under the ICC Treaty.
“This pivotal ruling opens the door for an investigation that may lead to those most responsible for serious crimes one day answering for their actions at a fair trial,” said Balkees Jarrah, Associate International Justice Director at Human Rights Watch.
“ It’s high time that Israeli and Palestinian perpetrators of the gravest abuses – whether war crimes committed during hostilities or the expansion of unlawful settlements – face justice.”
Bensouda said that priorities in the investigation will be “determined in due time” based on constraints including the coronavirus pandemic, limited resources and prosecutors’ existing heavy workload.
“Such challenges, however, as daunting and complex as they are, cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the Office,” she said, referring to the court’s founding treaty.
Israel captured the West Bank, East Jerusalem and the Gaza Strip in the 1967 Mideast War.
The Palestinians claim all three areas for a future independent state, a position that has widespread international support Subscribe Israel annexed East Jerusalem, home to the city’s most important religious sites, after the 1967 War and considers it part of its capital. It says the West Bank is disputed, not occupied, and withdrew from Gaza in 2005.
The Hamas militant group seized control of Gaza two years later from the internationally recognized Palestinian Authority.
Human Rights Watch welcomed the court’s move as a step toward justice for Israeli and Palestinian victims.
“The court’s crowded docket shouldn’t deter the prosecutor’s office from doggedly pursuing cases against anyone credibly implicated in such crimes,” said Balkees Jarrah, Associate International Justice Director at Human Rights Watch.
A new prosecutor, Karim Khan, a British lawyer, will take over in June when Ms Bensouda’s term ends. Mr. Khan is not necessarily bound by Ms Bensouda’s decision.
Lawyers familiar with the court and colleagues of Mr. Khan said they did not know Mr. Khan’s position on the case.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.