Fatou Bensouda, the International Criminal Court’s Chief Prosecutor, said in a statement regarding “alleged crimes” committed in the occupied Palestinian territories that “all the statutory criteria under the Rome Statute for the opening of an investigation have been met.” The territories in question include the West Bank, East Jerusalem, and the Gaza Strip. These territories constitute the state of Palestine, as it is recognized by the United Nations.
The decision flies in the face of anyone who still believes the Israeli claim that the Israeli Defense Forces (IDF) is the “most moral army in the world,” or that Israel does not commit war crimes.
Issues of Jurisdiction
Under the Rome Statute, the founding document that established the International Criminal Court, it is determined that cases can be heard by the court only if one of the affected parties is a signatory. The state of Palestine has been a signatory since 2015.
Israel, which like the United States never signed the Rome Statute, claims that Palestine is not a sovereign state and therefore the International Criminal Court has no jurisdiction to investigate issues related to it. Yet according to UN General Assembly resolution 67/19, adopted on November 29, 2012, Palestine assumed the status of a UN “non-member observer state,” affording it the ability to accede to international treaties like the Rome Statute, and indeed it didn’t take long for Palestine to become the 123rd state party to the statute giving the ICC the legal right to exercise jurisdiction on its territory.
Clearly anticipating that the ICC jurisdiction over Palestine would be called into questions by Israel, Prosecutor Bensouda said in her statement, the full version of which can be found on the ICC website, that she had filed a request for a jurisdictional ruling on the issue.
“Specifically, I have sought confirmation that the ‘territory’ over which the court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza,” Bensouda said.
She went on to say that she recognizes that “Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed.” The West Bank and the Gaza Strip are heavily controlled by the Israeli government and East Jerusalem has been effectively annexed by Israel.
Bensouda quite oddly adds that “The Palestinian Authority does not govern Gaza.” Hamas, however, is the party that currently governs Gaza, in as much as Israeli permits it to do so, as it is the party that won the 2006 Palestinian Authority parliamentary elections.”
Bensouda says that although she is of the view that “the Court may exercise its jurisdiction notwithstanding these matters,” she is aware of contrary views, and therefore “requests that a Pre-Trial Chamber I (“the Chamber”) rule on the scope of the Court’s territorial jurisdiction in the situation in Palestine.”
Specifically, Bensouda affirmed, she is seeking confirmation that the “territory” over which the ICC may exercise jurisdiction comprises the “Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and the Gaza Strip.”
She also made it clear that she wants the issue determined before she begins an investigation instead of being settled later by judges after her investigations are completed. It is not clear when a decision will be made on this, but Bensouda said she had asked the court to “rule expeditiously” and to allow potential victims to participate in proceedings.
Israel Responds
Notwithstanding the legal challenges, the decision of the prosecutor is encouraging. In Israel, the reactions to her decision were predictably fast, and not surprisingly, fierce. Israeli Prime Minister Benjamin Netanyahu’s response to Bensouda’s decision was that it is “baseless and outrageous.” As expected, he said that “the court has no jurisdiction” because only sovereign states can petition the court, and “there has never been a sovereign Palestinian state.” He added that the ICC’s decision means that Jews living in their historic homeland, the land of the Bible, is a war crime.
National Union chairman and Transportation Minister Bezalel Smotrich tweeted his response to the ICC prosecutor’s decision saying that that the Prime Minister should give the Palestinian Authority 48-hours to pull its petition to the ICC or else face being “torn down.” He added that this should have been done long ago when the Palestinians first petitioned the UN for statehood.
Yair Lapid, a co-founder of Israel’s Blue and White party, tweeted, “The ICC prosecutor has caved in to Palestinian lies and hatred. As a former member of the Security Cabinet and a member of the Knesset Foreign Affairs and Defense Committee, I can testify that the IDF does more than any army in history to prevent civilian casualties.” Despite the evidence, this is a claim often repeated by Israeli politicians.
Palestinians salvage what they can from the rubble of a home destroyed by an overnight Israeli airstrike in Gaza, July 8, 2014. Khalil Hamra | AP
Blue and White chairman Benny Gantz also attacked the court’s decision. Having served as the IDF Chief of Staff, he is likely to be a major target of any investigation into war crimes. In his response to the decision, he mentioned his decades of military service, including “serving as the IDF’s 20th Chief of Staff.” He stated that “the IDF is one of the most moral armies in the world,” and asserted that “The IDF and the State of Israel do not commit war crimes.” Gantz oversaw more than one Israeli assault on the besieged Gaza strip, assaults that saw scores of civilian casualties.
Israeli Fears
Israel has good reason to fear the International Criminal Court’s decision. Moving forward with an investigation into crimes committed in the Palestinian territories will expose both current and former government officials and military personnel to prosecution when they travel abroad. That fear is not entirely irrational and not without precedent.
In 2011, it was reported that retired Israeli General Danny Rothschild was forced to cut a scheduled visit to London short and cancel two planned lectures there. This after the Israeli Embassy warned him he was in danger of being arrested if he stayed in the country. The event came a day after Knesset member and former Defense Minister Amir Peretz was forced to cut short a London visit for the same reason.
Trial International, an NGO that fights impunity for international crimes and supports victims in their quest for justice, reports that on June 30, 2016, former Israeli Foreign Minister Tzipi Livni was in London for a conference and was summoned to the police regarding allegations of war crimes committed between 2008 and 2009. Livni was ultimately granted diplomatic immunity. Then, on January 23, 2017, Livni was invited to attend a conference at the European Parliament in Brussels when the Belgium prosecutor’s office announced its intention to arrest and question her regarding her alleged involvement in Operation Cast Lead, Israel’s bloody 22-day military assault on the Gaza Strip in 2008. Livini decided to cancel her trip to Belgium.
Demonstrators stand on top of London Bus during a protest near the Israeli embassy over its bombing of Gaza, July 11, 2014. Alastair Grant | AP
Matan Kahana is a member of the Israeli “New Right” party. Kahana is a retired colonel in the IDF who served both as a soldier in Israel’s notorious murder squad “Sayeret Matkal” and as a fighter pilot and officer in the Israeli Airforce. He participated in countless “operations” in which Palestinian civilians were killed. As an airforce pilot, he would have been directly involved in bombing and killing countless defenseless citizens in the Gaza Strip. Kahana made a statement on Twitter following the ICC’s announcement that “if only people knew how careful the IDF soldiers try not to harm “uninvolved persons.”
Yet these “efforts” Kahana and other Israeli officials speak of seem to fail time and time again. The number of civilian casualties from Israeli attacks is staggering and has reached the point where one must question the intent of the IDF and those who send it on these so-called missions. While a thorough investigation will no doubt precede any decision by the International Criminal Court, it doesn’t take a great legal scholar to understand that dropping tons of bombs from fighter jets on a defenseless civilian population constitutes a war crime.
The full report of the prosecutor states that the scope of any formal proceedings is also likely to include an investigation into the “use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018.” The demonstrations the ICC is referring to are the protests known as “The Great Return March.” This means that the enormous efforts Israel makes to justify its attacks on Palestinians — and to claim that they are carried out in self-defense only — may finally be beginning to fail.
Feature photo | Palestinian children look for their belongings after their homes were destroyed in Israeli strikes in Rafah, southern Gaza Strip. Israel sealed off the Rafah area and began shelling on Aug. 1, 2014. By the end of the next day, 190 Palestinians were dead. Hatem Ali | AP
Miko Peled is an author and human rights activist born in Jerusalem. He is the author of “The General’s Son. Journey of an Israeli in Palestine,” and “Injustice, the Story of the Holy Land Foundation Five.”
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