In a significant development for Israeli accountability, Fatou Bensouda, chief prosecutor of the International Criminal Court (ICC), seeks to launch an investigation into war crimes committed in Palestine. But she has established an unnecessary and politically suspect condition to slow down the process.
Following a five-year preliminary examination, Bensouda found a reasonable basis to mount an investigation of "the situation in Palestine." She is "satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip ... (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice."
Bensouda began the preliminary examination six months after Israel's July 2014 "Operation Protective Edge," during which Israeli military forces killed 2,200 Palestinians, nearly one-quarter of them children and more than 80 percent civilians.
In a preliminary examination, the Office of the Prosecutor decides whether: the crimes fall within the jurisdiction of the ICC; there are genuine national proceedings; and beginning an investigation would further the interests of justice and the victims.
In an investigation, the prosecutor develops evidence, identifies suspects, and applies for arrest warrants and summons to appear before the Court.Bensouda Asks Court to Decide Whether It Has Jurisdiction
Bensouda filed a 112-page document with the Court's Pre-Trial Chamber. She found a reasonable basis to believe that Israeli forces committed the war crimes of willful killing, willfully causing serious injury to body or health, disproportionate use of force, transfer of Israeli civilians into the Palestinian territory of the West Bank, and the killing of over 200 Palestinians during demonstrations at the Israel-Gaza fence. She also cited a reasonable basis to investigate possible war crimes by Palestinians, including intentional attacks against civilians, using civilians as human shields, and the commission of torture and willful killing.
The prosecutor could have commenced the investigation without asking the Court's permission. Bensouda determined "that the Court does indeed have the necessary jurisdiction in this situation." But given the "unique and highly contested legal and factual issues," particularly the issue of "the territory within which the investigation may be conducted," she asked the Pre-trial Chamber for a ruling on "the scope of the territorial jurisdiction" of the ICC under the Rome Statute. Bensouda wants confirmation that the "territory" subject to investigation "comprises the West Bank, including East Jerusalem, and Gaza." She recommends that the jurisdictional issue be "resolved without undue delay."
Israel is not a party to the Rome Statute. The ICC, however, can exercise jurisdiction over nationals of a non-party if they commit crimes in the "territory" of a state party. In 2012, Palestine was recognized as a non-member observer State to the United Nations under General Assembly Resolution 67/19. Palestine acceded to the Rome Statute and became a member of the States Parties of the International Criminal Court.
The State of Palestine, which welcomed Bensouda's decision to start an investigation, noted that the ICC prosecutor "has jurisdiction over the occupied territory of the State of Palestine, given that Palestine is a State Party to the Rome Statute and that the State of Palestine granted the Prosecutor jurisdiction to look into crimes committed in its territory."
Israel contends that "a sovereign Palestinian State does not exist, and that the precondition to the Court's jurisdiction thus cannot be fulfilled. This is because sovereignty over the West Bank and the Gaza Strip remains in abeyance, and the Palestinian entity manifestly fails to meet the criteria for statehood under general international law." In his legal opinion, Israeli Attorney General Avichai Mandelblit wrote, "the Palestinian Authority lacks effective control over the territory concerned (and in claiming that the territory is occupied by Israel, essentially concedes that that is so)." He claims that because there is no sovereign Palestinian state, there is no "territory" over which the Court can exercise jurisdiction.
However, Israel is occupying the Palestinian territories, which does not give Israel sovereignty over them. Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan) and the Palestinian Center for Human Rights (PCHR) issued a joint statement saying, "Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority..." Moreover, "...Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation. This does not in any way give Israel sovereign rights over the territory," they wrote.Why Did Bensouda Delay the Investigation?
The issue of territorial jurisdiction is "a redundant and moot point" that amounts "to an unnecessary delay in the progression of the situation to full investigation," the Palestinian organizations noted. Since jurisdictional issues are usually decided during the preliminary examination, the groups asked why "the question of territorial jurisdiction has only now come to the fore?"
After Bensouda indicated she wished to open an investigation, she was lambasted by the Israeli press, which branded her "public enemy number one."
Bensouda may fear additional repercussions if she proceeds with the investigation without a jurisdictional ruling from the Court. In April 2019, after she asked the Court to open an investigation into war crimes committed by Afghan and U.S. forces in Afghanistan, the United States revoked her visa. The Court then denied Bensouda's request to launch the investigation, citing the "interests of justice." Secretary of State Mike Pompeo threatened to take further action against investigators who participate in an ICC investigation.