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On 20 December 2019, the chief prosecutor of the International Criminal Court (ICC) issued a statement saying that she intends to investigate the ‘situation in Palestine’.
Fatou Bensouda concluded that all the statutory criteria under the Rome Statute, the legal mechanism governing The Hague-based tribunal, had been met and that the court has jurisdiction over events in Palestine.
The issue of jurisdiction arises in this case as Palestine’s status as a sovereign state has been denied by major global players. This is despite a United Nations (UN) vote on 29 November 2012 that saw 138 votes in favour of the de facto recognition of a sovereign Palestinian state in the UN’s 193-member General Assembly.
Aside from a state party referring a case, the only other avenues to an ICC investigation is via an UN Security Council referral or if a party to the Rome Statute committed the crimes. Israel is not a party to the Rome Statute.
While Bensouda concluded that Palestine is a state, a party to the Rome Statute and, therefore, can request the court to investigate alleged war crimes, she asked the Pre-trial Chamber (PTC) to authorize her decision to open the investigation due to “the unique and highly contested legal and factual issues attaching to this situation”.
She also asked the court to confirm it can exercise jurisdiction over the West Bank, East Jerusalem and Gaza. She provided her arguments for Palestine to be considered a state as well as alternative arguments, should her initial arguments not convince the chamber, including the loosening of criteria in situations where a recognized right to self-determination in a territory is denied due to acts considered illegal under international law.
Pre-emptively, Israeli Attorney General Avichai Mandelblit released a memorandum saying the ICC lacks jurisdiction to investigate alleged war crimes in Palestine.
Bensouda said there is a reasonable basis to believe that war crimes had been committed by both sides during the 2014 military operation Protective Edge. At the same time, she said Hamas and other Palestinian armed groups may have also committed war crimes and that the issue of settlement expansion and the disproportionate use of force against demonstrators in Gaza since 2018 should be investigated.
Her decision has received both praise and criticism, but any conviction will have to grapple with procedural questions, realpolitik and time.
‘Palestine welcomes this step as a long-overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination,’ said a statement from the Palestinian Foreign Ministry.
Israeli Prime Minister Benjamin Netanyahu issued his own statement, saying, ‘The court has no jurisdiction in this case. The ICC only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state. The ICC prosecutor’s decision has turned the International Criminal Court into a political tool to delegitimize the State of Israel.’
He went on to ask states party to the Rome Statute to impose sanctions on the court..
US Secretary of State Mike Pompeo said the United States does not believe Palestine qualifies as a sovereign state, adding that it opposes the ICC’s decision “and any other action that seeks to target Israel unfairly”.
Omer Shatz, an international lawyer who practised law in Israel prior to 2014, told Fanack that he is critical of Bensouda’s decision.
“It was unnecessary to ask permission from the court, procedurally speaking, in terms of jurisdiction,” he said.
Having already reached a conclusion that Palestine is a state, to ask if she is right or wrong shows a lack of self-assurance in her own understanding of the law as well as courage to bear the political criticism of her conclusion, Shatz said. So, in his view, she attempted to externalize that decision-making.
This is not the first time the ICC has probed Israel for alleged war crimes. In the 2010 case of an Israeli raid on a flotilla carrying aid to Gaza that resulted in the deaths of nine Turkish citizens, Bensouda refused to press charges, concluding, “There is no potential case arising from this situation that is sufficiently grave.”
Palestine also previously attempted to invoke an ICC investigation in 2009 for acts committed since 1 July 2002. Luis Moreno Ocampo, Bensouda’s predecessor, dealt with the issue by outsourcing the question of statehood to the UN’s political organs.
Shatz noted, however, that the timeframe and context were different and that “statehood is something that evolves”. In the same way, while Bensouda could argue she is saving the ICC’s limited resources on an investigation if it is to be rejected on the grounds of jurisdiction later, Shatz said that if a trial is heard in the future, the circumstances may be more conducive to recognizing Palestinian statehood. Meanwhile, pursuing an investigation may have a cooling effect on Israeli activities.
“She could have [potentially] saved people’s lives, and she could have avoided the establishment of new settlements and annexations of territories in the West Bank and the potential war crimes that could be committed in the next round of military operations, just by the mere fact that it (Israel) will be under official investigation.”
The court has 120 days to return its verdict but has been delayed due to the prosecutor exceeding the page limit of her filing, making it necessary for her to file a new request. The verdict is likely to be published after the next Israeli elections on 2 March 2020.
The judges in the PTC could either rule that Palestine is a state, it is not a state or that only the zones in the West Bank designated as areas A and B are part of a Palestinian state and that area C does not come under the court’s jurisdiction because it is under full Israeli control. Likewise, Gaza is not under the control of the Palestinian Authority, which governs the West Bank, but Hamas, which is designated by many countries as a terrorist organization.
The other issue that arose in Bensouda’s statement was the principle of complementarity, which dictates that the court would not have jurisdiction if there are adequate domestic processes investigating alleged crimes, which Israel might argue is the case.
Bensouda has also asked for a “participatory process” to allow “a spectrum of parties’ relevant perspectives” to be assessed.
Should the PTC rule that the court does not have jurisdiction, Palestine can refer its case to the appeals chamber, which will then take several months to deliberate.
Israel would, in turn, not be able to appeal the ICC’s decision as it is not a member of the court. Whether a third party friendly with Israel and party to the Rome Statute could appeal on Israel’s behalf remains an open question.
If Bensouda’s investigation is able to commence, she will gather witness testimony to establish guilt beyond a reasonable doubt after which she can issue arrest warrants to conduct further interviews.
All of the 123 parties to the Rome Statute are, in theory, obliged to cooperate with an arrest warrant, which would hinder Israeli officials’ ability to travel internationally.
The path to convictions for grave crimes that may have been committed in the Palestinian territories is a long one and is likely to extend beyond Bensouda’s term as prosecutor, which is due to end in June 2021.