Fatou Bensouda, the International Criminal Courtâs Chief Prosecutor, said in a statement regarding âalleged crimesâ committed in the occupied Palestinian territories that âall the statutory criteria under the Rome Statute for the opening of an investigation have been met.â 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 âmost moral army in the world,â 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 ânon-member observer state,â affording it the ability to accede to international treaties like the Rome Statute, and indeed it didnât 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.
âSpecifically, I have sought confirmation that the âterritoryâ over which the court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank and Gaza,â Bensouda said.
She went on to say that she recognizes that âPalestine does not have full control over the Occupied Palestinian Territory and its borders are disputed.â 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 âThe Palestinian Authority does not govern Gaza.â 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.â
Bensouda says that although she is of the view that âthe Court may exercise its jurisdiction notwithstanding these matters,â she is aware of contrary views, and therefore ârequests that a Pre-Trial Chamber I (âthe Chamberâ) rule on the scope of the Courtâs territorial jurisdiction in the situation in Palestine.â
Specifically, Bensouda affirmed, she is seeking confirmation that the âterritoryâ over which the ICC may exercise jurisdiction comprises the âOccupied Palestinian Territory, that is the West Bank and the Gaza Strip.â
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 ârule expeditiouslyâ and to allow potential victims to participate in proceedings.
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 Netanyahuâs response to Bensoudaâs decision was that it is âbaseless and outrageous.â As expected, he said that âthe court has no jurisdictionâ because only sovereign states can petition the court, and âthere has never been a sovereign Palestinian state.â He added that the ICCâs 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 prosecutorâs 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 âtorn down.â 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 Israelâs Blue and White party, tweeted, âThe 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.â Despite the evidence, this is a claim often repeated by Israeli politicians.
Blue and White chairman Benny Gantz also attacked the courtâs 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 âserving as the IDFâs 20th Chief of Staff.â He stated that âthe IDF is one of the most moral armies in the world,â and asserted that âThe IDF and the State of Israel do not commit war crimes.â Gantz oversaw more than one Israeli assault on the besieged Gaza strip, assaults that saw scores of civilian casualties.
Israel has good reason to fear the International Criminal Courtâs 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 prosecutorâs office announced its intention to arrest and question her regarding her alleged involvement in Operation Cast Lead, Israelâs bloody 22-day military assault on the Gaza Strip in 2008. Livini decided to cancel her trip to Belgium.
Matan Kahana is a member of the Israeli âNew Rightâ party. Kahana is a retired colonel in the IDF who served both as a soldier in Israelâs notorious murder squad âSayeret Matkalâ and as a fighter pilot and officer in the Israeli Airforce. He participated in countless âoperationsâ 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 ICCâs announcement that âif only people knew how careful the IDF soldiers try not to harm âuninvolved persons.â
Yet these âeffortsâ 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 doesnât 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 âuse by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018.â The demonstrations the ICC is referring to are the protests known as âThe Great Return March.â This means that the enormous efforts Israel makes to justify its attacks on Palestinians â and to claim that they are carried out in self-defense only â may finally be beginning to fail.
Miko Peled is an author and human rights activist born in Jerusalem. He is the author of âThe Generalâs Son; Journey of an Israeli in Palestine,â and âInjustice, the Story of the Holy Land Foundation Five.â
Photo: Palestine News Network
Edited for IMEMC: Ali Salam