Associated Press
By JOSEF FEDERMAN
Feb. 5, 2021
JERUSALEM (AP) — The International Criminal Court said Friday that its
jurisdiction extends to territories occupied by Israel in the 1967
Mideast war, potentially clearing the way for its chief prosecutor to
open a war crimes probe into Israeli military actions.
The decision was welcomed by the Palestinians and decried by Israel’s
prime minister, who vowed to fight “this perversion of justice.” The
U.S., Israel’s closest ally, said it opposed the decision.
The ICC’s chief prosecutor, Fatou Bensouda, said in 2019 that there
was a “reasonable basis” to open a war crimes probe into Israeli
military actions in the Gaza Strip as well as Israeli settlement
activity in the occupied West Bank. But she asked the court to
determine whether she has territorial jurisdiction before proceeding.
In a statement on Twitter, Bensouda’s office welcomed the “judicial
clarity” of the ruling, but said it needed time before deciding how to
proceed.
“The Office is currently carefully analysing the decision & will then
decide its next step guided strictly by its independent & impartial
mandate,” it said.
The Palestinians, who joined the court in 2015, have pushed for an
investigation. Israel, which is not a member of the ICC, has said the
court has no jurisdiction because the Palestinians do not have
statehood and because the borders of any future state are to be
decided in peace talks. It also accuses the court of inappropriately
wading into political issues.
The Palestinians have asked the court to look into Israeli actions
during its 2014 war against Palestinian militants in the Gaza Strip,
as well as Israel’s construction of settlements in the occupied West
Bank and annexed east Jerusalem.
The international community widely considers the settlements to be
illegal under international law but has done little to pressure Israel
to freeze or reverse their growth.
The international tribunal 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, experts say Israel could have a
difficult time defending its actions. International law forbids the
transfer of a civilian population into occupied territory.
Israel captured the West Bank, Gaza and east Jerusalem in the 1967
war, territories the Palestinians want for their future state. Some
700,000 Israelis live in settlements in the West Bank and east
Jerusalem. The Palestinians and much of the international community
view the settlements as illegal and an obstacle to peace.
Israel says east Jerusalem is an indivisible part of its capital and
that the West Bank is “disputed” territory whose fate should be
resolved in negotiations.
While the court would have a hard time prosecuting Israelis, it could
issue arrest warrants that would make it difficult for Israeli
officials to travel abroad. A case in the ICC would also be deeply
embarrassing to the government. Israel’s prime minister, Benjamin
Netanyahu, led the 2014 war in Gaza, while Israeli Defense Minister
Benny Gantz was the military chief of staff at the time.
In a videotaped statement released after midnight, Netanyahu accused
the court of “pure anti-Semitism” and having a double standard.
“The ICC refuses to investigate brutal dictatorships like Iran and
Syria, who commit horrific atrocities almost daily,” he said. “We will
fight this perversion of justice with all our might!”
Nabil Shaath, a senior aide to Palestinian President Mahmoud Abbas,
welcomed the decision and said it proved the Palestinians were right
to go to the ICC. “This is good news, and the next step is to launch
an official investigation into Israel’s crimes against our people,” he
said.
The ICC could also potentially investigate crimes committed by
Palestinians militants. Bensouda has said her probe would look into
the actions of Hamas, which fired rockets indiscriminately into Israel
during the 2014 war.
In Washington, U.S. State Department spokesman Ned Price said the
Biden administration, which has said it intends to restore relations
with the Palestinians, opposed the decision and reiterated American
opposition to the Palestinians even being party to the Rome Statute
that created the court.
“As we made clear when the Palestinians purported to join the Rome
Statute in 2015, we do not believe the Palestinians qualify as a
sovereign state, and therefore are not qualified to obtain membership
as a state, or participate as a state in international organizations,
entities, or conferences, including the ICC,” Price said in a
statement.
“We have serious concerns about the ICC’s attempts to exercise its
jurisdiction over Israeli personnel,” he said. “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.”
The decision, detailed in a 60-page legal brief, was released late
Friday, after Israel had shut down for the weekly Jewish Sabbath.
Human Rights Watch welcomed the decision, saying it “finally offers
victims of serious crimes some real hope for justice after a half
century of impunity.”
“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,” said Balkees
Jarrah, associate international justice director at the New York-based
group.
The three-judge pretrial chamber ruled that Palestine is a state party
to the Rome Statute establishing the ICC. With one judge dissenting,
it ruled that Palestine qualifies as the state on the territory in
which the “conduct in question” occurred and that the court’s
jurisdiction extends to east Jerusalem, the West Bank and Gaza.
Last year, the Trump administration imposed sanctions against ICC
officials, after earlier revoking Bensouda’s entry visa, in response
to the court’s attempts to prosecute American troops for actions in
Afghanistan.
The U.S., like Israel, does not recognize the court’s jurisdiction. At
the time, then-Secretary of State Mike Pompeo said the steps 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.