International Criminal Court investigation in Palestine

On 20 December 2019, International Criminal Court chief prosecutor Fatou Bensouda announced an investigation into alleged war crimes committed during the Israeli-Palestinian conflict.[1]

Background

In 2009, the Palestine Authority lodged an ad hoc declaration to the ICC accepting the jurisdiction of the Court for crimes committed since 2002. Almost three years later, the Office of the Prosecutor decided not to open an investigation on the situation in Palestine until the Assembly of States parties of the Court or the United Nations gave clarification on the statehood issue of Palestine.[2]

On 29 November 2012,UN General Assembly resolution 67/19 passed, upgrading Palestine to "non-member observer state" status in the United Nations.[3] The change in status was described as "de facto recognition of the sovereign state of Palestine".[4]

In a 2014 opinion piece, the Prosecutor said that, as a result of this new status, Palestine could now join the Rome Statute.[5] A preliminary investigation had been ongoing since 2015.[6] Israel is not a member of ICC, but the State of Palestine was allowed to join in 2015.[1][7] Israel has argued that the court has no jurisdiction because Palestine is not a sovereign state, as Israeli attorney general Avichai Mandelblit argued in a brief released hours before Bensouda's announcement.[7] On three previous occasions, Bensouda has refused to open investigations against Israel related to the 2010 Gaza flotilla raid.[8]

Report

According to Bensouda, the criteria for a full investigation had all been met, but jurisdiction had not been established.[6] Bensouda stated, "I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip".[7]

According to Bensouda's report, the Israeli judicial system already makes provision for punishing those accused of war crimes—meaning that the ICC may not have jurisdiction over alleged Israeli violations; Bensouda wrote that she will have to keep reviewing the “scope and genuineness of relevant domestic proceedings” that remain ongoing. Bensouda also found "a reasonable basis to believe that members of Hamas and Palestinian armed groups" are guilty of war crimes, but these groups have no mechanism for punishing such violations.[1]

Israel is accused of illegally establishing West Bank settlements and violating the laws of war during the 2014 Gaza War, including claims of targeting Red Cross installations. Armed Palestinian organizations, including Hamas, are accused of deliberately attacking Israeli civilians and using Palestinians as human shields.[6][7][1]

Developments

Israeli prime minister Benjamin Netanyahu condemned the investigation as "a black day for truth and justice"[7] and "pure antisemitism", while Israeli newspaper Yedioth Ahronoth denounced "The Hague's hypocrisy" in a headline.[1] In an interview with Times of Israel Bensouda described the charge of antisemitism as "a particularly regrettable accusation that is without merit" and emphasized that the court strives to be fair and impartial.[9]

United States Secretary of State Mike Pompeo stated, "We firmly oppose this and any other action that seeks to target Israel unfairly."[6] Australia argued that the issues should be resolved by negotiation, while Germany stated that it trusts the court and wants to avoid politicising the case.[10] Hungary announced that it agrees with Israel's arguments about jurisdiction.[11]

The Palestinian Authority issued a statement declaring that "Palestine welcomes this step as a long overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination".[6] On 16 March 2020, following the submission of amicus curiae briefs, [12] Bensouda requested another month to weigh the question of Palestinian statehood and jurisdiction over the West Bank, Gaza and East Jerusalem.[13] About 50 countries and NGOs have filed such briefs for consideration and on April 29, 2020, over 180 Palestinian and international organizations, and individuals filed an open letter in support of Palestine.[14][15]

On 30 April, 2020, Bensouda stood by her initial finding, writing "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,"[16][17]

Further reading
  • Adem, Seada Hussein (2019). Palestine and the International Criminal Court. Springer. ISBN 978-94-6265-291-0.CS1 maint: ref=harv (link)
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References
  1. Ahren, Raphael (23 December 2019). "The Hague vs. Israel: Everything you need to know about the ICC Palestine probe". Times of Israel. Retrieved 25 December 2019.
  2. Adem 2019, p. 49.
  3. "Palestine: What is in a name (change)?". Aljazeera Inside Story. Aljazeera. 8 January 2013. Archived from the original on 9 January 2013. Retrieved 8 June 2014.
  4. "Israel defies UN after vote on Palestine with plans for 3,000 new homes in the West Bank". The Independent. 1 December 2012. Archived from the original on 18 October 2017. Retrieved 15 September 2017.
  5. "Fatou Bensouda: the truth about the ICC and Gaza". Guardian. August 29, 2014. Retrieved February 23, 2020.
  6. "ICC to probe alleged war crimes in Palestinian areas, pending jurisdiction". Reuters. 21 December 2019. Retrieved 25 December 2019.
  7. Beaumont, Peter (20 December 2019). "ICC to investigate alleged Israeli and Palestinian war crimes". The Guardian.
  8. "ICC Prosecutor gives Hague Court Israel's brief". The Jerusalem Post. Retrieved 25 December 2019.
  9. Ahren, Raphael. "ICC prosecutor: Netanyahu's anti-Semitism charge is 'particularly regrettable'". Times of Israel. Retrieved 14 January 2020.
  10. Ahren, Raphael. "Australia rejects ICC Palestine probe; Germany warns against politicization". Times of Israel. Retrieved 27 December 2019.
  11. "Backing Israel, Hungary says it opposes potential ICC probe of Jewish state". Times of Israel. 11 January 2020. Retrieved 12 January 2020.
  12. "In a letter to ICC Prosecutor: Time to investigate Israeli crimes in Palestine, time for justice". Jerusalem Post. April 29, 2020. Retrieved April 29, 2020.
  13. Ahren, Raphael (19 March 2020). "ICC prosecutor requests more time to weigh jurisdiction over Palestinian areas". Times of Israel. Retrieved 21 March 2020.
  14. "ICC Prosecutor to give final position on if Palestine is a state". Jerusalem Post. April 30, 2020. Retrieved April 30, 2020.
  15. "Joint Open Letter to the Office of the Prosecutor of the International Criminal Court: Time to Investigate Crimes in Palestine, Time for Justice". Al-Haq. April 29, 2020. Retrieved April 29, 2020.
  16. "Chief prosecutor insists ICC has jurisdiction to probe war crimes in 'Palestine'". Times of Israel. April 30, 2020. Retrieved April 30, 2020.
  17. Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States
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