The International Criminal Court (ICC) in the Hague, or, ruled in a vote of 15 to 1, that it has “territorial jurisdiction in the Situation in Palestine,” namely “in Gaza, the West Bank, including East Jerusalem.”
The move effectively grants ICC Chief Prosecutor Fatou Bensouda authority to conduct an investigation into war-crimes the Palestinian Authority has alleged Israel committed in these areas.
It is important to highlight that Bensouda previously reserved the legal-right under the Rome Statute to open an investigation into Israeli war crimes 20 December 2019, alleging that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.”
“Following a thorough, independent and objective assessment of all reliable information available to my office, the preliminary investigation into the situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met. I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine pursuant to article 53/1 of the statute. In brief, I am satisfied (1) that war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip. (2) That potential cases arising from the situation would be admissible and (3) that there are no substantial reasons to believe that an investigation would not serve the interest of justice,” said the ICC Chief Prosecutor in her latest statement.
Per Article 12, 2 (A) of the Rome Statute, the ICC may exercise its jurisdiction over alleged crimes only if “The State on the territory of which the conduct in question occurred” is a party to the treaty or has accepted the Court’s jurisdiction by a declaration.
She said then that she saw no reason not to open an investigation, but asked judges to first rule on whether the situation fell under the court’s jurisdiction.
After Bensouda sought a court ruling to resolve highly-contested legal and factual issues attached to the “territory within which the investigation may be conducted,” a 16 judge panel decided in 15 -1 vote on 5 February that the ICC had territorial jurisdiction over ‘Palestine,’ which it referred to as “a State party to the ICC Rome Statute,” including “territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
The ICC explained in a statement that while it “is not constitutionally competent to determine matters of statehood that would bind the international community,” the “reference to ‘[t]he State on the territory of which the conduct in question occurred’” in the Statute’s Article 12(2)(a) “must be interpreted as a reference to a State Party to the Rome Statute.”
The ICC concluded “Palestine has thus agreed to subject itself to the terms of the ICC Rome Statute and has the right to be treated as any other State Party for the matters related to the implementation of the Statute,” and further noted that United Nations Resolution 67/19, among similarly worded resolutions,” which repeatedly reaffirm “the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.”
ICC investigation will be guided by PA claims that Israeli construction in disputed territory is a “war crime,” in accordance with text of UN Security Council Resolution 2334, that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem has no legal validity and constitutes a flagrant violation under international law.” The resolution was adopted on 23 December 2016 after the Obama Administration abstained from the vote.
Another aspect of the probe pertains to alleged war-crimes committed by the IDF in self-defense against Islamist organizations in the Hamas-controlled Gaza Strip, from which thousands of rockets have been fired indiscriminately toward Israel’s civilian populated territories. And while Jerusalem demands its natural right to defend itself against terrorism; the Islamist Hamas emphasized that it regards indiscriminate rocket-fire toward Israel to be “consistent with international humanitarian law.”
Israeli officials vehemently rejected the Court’s jurisdiction since the country is not a signatory to the Rome Statute. The Palestinian Authority became a party to the treaty on January 7th 2015, even though it is not a state.
“The court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one State of the Jewish people. First, it outrageously claims that when Jews live in our homeland, this is a war crime. Second, it claims that when democratic Israel defends itself against terrorists who murder our children and rocket our cities – we are committing another war crime. Yet the ICC refuses to investigate brutal dictatorships like Iran and Syria, who commit horrific atrocities almost daily,” he charged.
“As Prime Minister of Israel, I can assure you this: We will fight this perversion of justice with all our might!” said Netanyahu in the video, shaking a fist.
Later remarks communicated by the Prime Minister’s Media Advisor stated that Israel’s Security Cabinet “completely rejects the scandalous decision of the court that could enable the investigation of Israel for false war crimes.”
The statement added: “The Cabinet determines that the court has no authority to make such a decision. Israel is not a member of the international court and the Palestinian Authority does not have the status of a state,” underscored that the ICC “is persecuting the state of the Jewish people,” which is “the only democracy in the Middle East that is committed to the rule of law.”
Saying it is “scandalous” to “claim that Jews living in their homeland and their capital of Jerusalem constitutes a war crime,” the Security Cabinet stressed that “is no less scandalous” to accuse the IDF, the world’s most ethical army, of “carrying out war crimes even as it protects us from terrorists that launch rockets at our cities.”
“The judges’ decision exposes the court as a political body aligned with international organizations that are motivated by antisemitism,” said the Security Cabinet, disclosing that it has ‘instructed’ the “relevant elements to take the necessary steps to protect the interests of the state and to defend its citizens and soldiers.”
Alternate Premier and Defense Minister Gantz in a letter to Israeli defense establishment following ICC ruling, “A poor and baseless decision designed to serve Israel’s detractors. The IDF and Israeli defense establishment will continue to protect our country and our citizens with determination and professionalism, while scrupulously upholding our values and international law.”
Minister Gantz maintained, “The ruling by the ICC’s judges is a poor one and lacks any basis in international law. The ICC lacks the authority to hold these proceedings, which are outrageous and designed simply to serve Israel’s detractors, who are looking for ways to do it damage by exploiting international institutions.”
“The ICC was never meant to undermine the efforts of democratic states fighting terrorism and protecting their people,” added Gantz, stressing that, “The State of Israel is forced to contend with complex security threats and complicated challenges, which aren’t going anywhere. The IDF and entire Israeli defense establishment, will continue to protect the country and its citizens, with determination and professionalism, while upholding both our moral standards as a country, and as a military, as well as international law. The State of Israel has a high-caliber, professional and independent justice system, which includes professional and effective mechanisms for inquiry, investigation and judicial proceedings, and they do their work well.”
The Defense Minister concluded, saying: “the State of Israel is prepared for any potential implication of this flawed, political and biased decision. The defense establishment, and all of Israel’s institutional bodies, will continue to resolutely prevent any harm to IDF commanders or soldiers or the defense establishment at large. This is a complicated and challenging time for Israeli security. I have full faith that the defense establishment will continue to stand firm against any threats, near or far. I offer my support and request that you pass this message along to all of the people under your command.”
The Israeli military also responded with the following statement:
“The IDF and the Chief of the General Staff regret the decision of the International Criminal Court (ICC). The State of Israel’s position is that this is a biased and prejudiced decision which steps beyond the ICC’s jurisdiction.
The IDF has determinedly defended, and will continue to defend, the security of Israel and its citizens, in the face of every threat, while adhering fully to the IDF Code of Ethics, the values of the IDF, and national and international law.
The IDF fully supports and will continue to support its soldiers in active and reserve service, who courageously and devotedly act to safeguard and protect the State of Israel and its citizens.
The IDF is ready to provide all and any support and assistance which may be required by its soldiers and commanders.”
Israeli Foreign Minister’s Policy Advisor Michael Freeman said, “It’s a shame that an international institution that we had so much hope for has capitulated to political pressure. There is no legal basis whatsoever in today’s decision and it damages the faith in the international legal system. Today’s decision won’t change the reality and won’t change history. There isn’t a Palestinian State and there never has existed a Palestinian State.”
It is important to explain Israel’s accusations of the International Criminal Court’s ruling ‘out of political considerations.’ It is derived from the fact that the Palestinian Authority’s accession to the Rome Statute as a “Member State” was accepted by the ‘Assembly of States Parties’, which is a largely political body that serves as the Court’s management oversight and legislative body and is composed of representatives of the States which have ratified or acceded to the Rome Statute; which does not including Israel nor the United States. Separately, claiming jurisdiction over disputed territories derived from U.N. resolutions that have classified the West Bank, among others, as “Occupied Palestinian land” raises into question the court’s objectivity.
Naturally, however, the Palestinian Authority greeted the Court’s ruling.
“Israel has always been treated above the law. There is no accountability when it comes to Israel. Now no one, including the United States of America could really provide protection to Israel. You know that always when we go to the Security Council, the United States of America is the one who really shields Israel from any criticism and prevents us from getting whatever sanctions are needed against Israel. Today, the United States of America cannot do anything to protect Israel and as a result Israel has to be treated as a war criminal,” proclaimed Palestinian Foreign Minister Riyad Al-Maliki.
The Palestinian Foreign Ministry said in a statement that it was an “historic day for the principle of accountability.”
Sami Abu Zuhri, an official with the Palestinian Hamas terror group which controls Gaza, described the decision as “an important development that contributes in protecting the Palestinian people.”
Hamas Spokesperson Hazem Qassem said the group “welcomes the International Criminal Court’s decision in its regional competence in the occupied Palestinian territories and it considers it as an important step towards achieving justice for the Palestinian people and prosecuting Israeli war criminals.” He added, “Hamas says clearly and with full confidence that its resistance and the resistance of the Palestinian people is legitimate, and it is consistent with international humanitarian law. Many international organizations recognize the legality of this right (to resistance), and therefore, legitimate resistance can’t be condemned under all circumstances.”
Human Rights Watch called the decision “pivotal” and said it “finally offers victims of serious crimes some real hope for justice after a half century of impunity,” said Balkees Jarrah, Associate International Justice Director. “It’s high time that Israeli and Palestinian perpetrators of the gravest abuses – whether war crimes committed during hostilities or the expansion of unlawful settlements – face justice,” he said.
Jamil Dakwar, the Director of the American Civil Liberties Union’s Human Rights Program, warned US President Joe Biden not to take any action that would undermine the ICC’s independence. “It’s important to remember that the ICC investigation would also target Palestinian perpetrators of war crimes in the context of hostilities between Israel and Palestinian armed groups, especially in the Gaza Strip,” he wrote on Twitter.
The United States, reacted in defense of its strongest ally, Israel. State Department spokesman Ned Price wrote on Twitter: “The United States objects to today’s @IntlCrimCourt decision regarding the Palestinian situation.”
“We will continue to uphold President Biden’s strong commitment to Israel and its security, including opposing actions that seek to target Israel unfairly,” Price added, saying that Washington is “reviewing” the ruling.