By Samia Majid. MA History
Chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has opened an investigation into Israeli war crimes. These crimes will be investigated in the Occupied Palestinian Territories. According to UN Resolutions, the West Bank, including East Jerusalem, and Gaza, have been illegally occupied by Israel since 1967. Bensouda’s announcement on December 20, 2019, was welcomed by the Palestinian leadership, who hope that justice will be restored for the Palestinian people. Israeli Prime Minister Benjamin Netanyahu condemned the investigation and accused the ICC of undermining the cause of the Jewish people and espousing anti-Semitism.
The news of a criminal probe into the West Bank and Gaza Strip are pending the confirmation of the ICC’s jurisdiction within Palestinian territory. Under the Rome Statute, which established the ICC, the court has the authority to investigate ‘serious crimes of international concern,’ involving genocide, crimes against humanity and war crimes in the territory of its member states. Although Palestine is a member state of the ICC, Israel is not. The ICC has jurisdiction to investigate states which are parties to the Statute or have accepted the jurisdiction of the Court. The Palestinian Authority has limited influence in the West Bank, and the Gaza Strip is controlled by its opposition, Hamas.
Netanyahu and other Israeli officials question the validity of the ICC’s jurisdiction inside the Palestinian Territories, which remains a matter of contention.
Bensouda’s statement followed a five-year-long preliminary review which opened in January 2015 after the Palestinian Authority requested the court’s intervention and officially recognised its jurisdiction. Netanyahu and other Israeli officials question the validity of the ICC’s jurisdiction inside the Palestinian Territories, which remains a matter of contention. Bensouda requested an ICC Pre-Trial Chamber to pass a ruling on the question of geographical jurisdiction within four months. If the Pre-Trial Chamber accepts the ICC’s jurisdiction inside the Occupied Palestinian Territories, the investigation will be authorised. If the Chamber denies the request because Palestine is not a sovereign state and therefore does not qualify as a member of the ICC, the investigation will be halted.
Bensouda’s report on the Pre-Trial Chamber focuses on the 2014 Israeli war against Hamas in Gaza, which involved a 50-day attack which claimed the lives of over 2,000 Palestinians. The UN Human Rights Council’s 2015 report stated that ‘the scale of the devastation was unprecedented.’ Bensouda’s report concludes that ‘there is a reasonable basis to believe that war crimes were committed by soldiers of the Israel Defense Forces (IDF). The IDF launched disproportionate attacks against civilians and used non-lethal and lethal force against demonstrators at the border of the Gaza Strip. 200 deaths and thousands more casualties were recorded as a result of these attacks. Members of Hamas and Palestinian militant groups will also be under investigation for the alleged war crimes of directing attacks against civilians and using them as human shields for protection.
The ICC currently has twelve open investigations of war crimes, including Myanmar, the Democratic Republic of Congo, Uganda, and Kenya, among others. ICC investigations are lengthy. Bensouda’s preliminary investigation lasted five years and pending authorisation, it is likely that an official examination will take even longer.