The pre-trial chamber of the International Criminal Court (ICC) announced on Friday it has jurisdiction over Palestine, giving clearance for its chief prosecutor to investigate alleged atrocities of the Israeli military in the occupied territories.
In a 2-1 decision, judges determined that Palestine qualifies as the state on the territory in which the “conduct in question” occurred and that the court’s jurisdiction extends to east Jerusalem, the West Bank and Gaza.
Fatou Bensouda, the ICC chief prosecutor, has previously announced she intends to open a formal inquiry into alleged war crimes in the occupied West Bank, East Jerusalem and the Gaza Strip.
However, due to Palestine’s status as an occupied territory rather than a sovereign country, she had waited for judges to “confirm” if the court had the authority.
Israeli Prime Minister Benjamin Netanyahu said the decision “proves once again the court is a political body and not a legal institution.”
“The decision hurts the right of democratic countries to defend themselves in the face of terror. We will continue to use all means to defend our citizens and soldiers in the face of legal persecution,” he said.
Palestine used its UN observer state status, gained in 2012, to join the ICC and call for an investigation in Israeli actions.
Israel, which is not a member of the ICC, has said the court has no jurisdiction because the Palestinians do not have statehood and because the borders of any future state are to be decided in peace talks.
Bensouda has said she would investigate both the Israeli military as well as Palestinian armed groups, including the Gaza-based Hamas faction, which has been accused of “intentionally directing attacks against civilians”, according to her office.
Nabil Shaath, a senior aide to Palestinian President Mahmoud Abbas, welcomed the decision and said it proved the Palestinians were right to go to the ICC. “This is good news, and the next step is to launch an official investigation into Israel’s crimes against our people,” he said.
Human Rights Watch welcomed the decision, saying it “finally offers victims of serious crimes some real hope for justice after a half century of impunity.”
“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,” said Balkees Jarrah, associate international justice director at the New York-based group.
The international community widely considers the Israeli settlements to be illegal under international law but has done little to pressure Israel to freeze or reverse their growth.
The international tribunal is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes.
Israel’s military has mechanisms to investigate alleged wrongdoing by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of fending off ICC investigation into its wartime practices.
When it comes to settlements, however, experts say Israel could have a difficult time defending its actions. International law forbids the transfer of a civilian population into occupied territory.
Israel captured the West Bank, Gaza and east Jerusalem in the 1967 war, territories the Palestinians want for their future state.
Some 700,000 Israelis live in settlements in the West Bank and east Jerusalem. The Palestinians and much of the international community view the settlements as illegal and an obstacle to peace.
While the court would have a hard time prosecuting Israelis, it could issue arrest warrants that would make it difficult for Israeli officials to travel abroad.
A case in the ICC would also be deeply embarrassing to the Israeli government. (Source: CNA)