ICC prosecutor opens war crimes probe in Palestinian territories

The chief prosecutor of the International Criminal Court Fatou Bensouda said on Wednesday that she launched a formal probe into war crimes in the occupied Palestinian territories.

📢 Statement of #ICC Prosecutor #FatouBensouda respecting an investigation of the Situation in #Palestine ⬇️ #justicemattershttps://t.co/G5Q5hvesJZ

— Int'l Criminal Court (@IntlCrimCourt) March 3, 2021

“Today, I confirm the initiation by the office of the prosecutor of the International Criminal Court of an investigation respecting the situation in Palestine,” the prosecutor said in a statement.

“The investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation since 13 June 2014, the date to which reference is made in the Referral of the Situation to my Office,” she added.

The prosecutor said that the Office will determine the “priorities concerning the investigation in due time, “in light of the operational challenges the office confronts from COVID-19, and the limited resources available to the office, and the current heavy workload.

“Such challenges, however, as daunting and complex as they are, cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the Office,” stated Bensouda.

The prosecutor stated that the first step will be notifying “all States Parties and those States which would normally exercise jurisdiction over the crimes concerned about its investigation.”

“This permits any such State to request the Office to defer to the State’s relevant investigation of its own nationals or others within its jurisdiction in relation to Rome Statute crimes referred to in the notification.”

“Any investigation undertaken by the Office will be conducted independently, impartially and objectively, without fear or favour. The Rome Statute obliges the Office, in order to establish the truth, to extend its investigation to cover all facts and evidence relevant to an assessment of whether there is individual criminal responsibility under the Statute and, in doing so, to investigate incriminating and exonerating circumstances equally,” Bensouda said.

She added, “The decision to open an investigation followed a painstaking preliminary examination undertaken by my Office that lasted close to five years.”

“During that period, and in accordance with our normal practice, the Office engaged with a wide array of stakeholders, including in regular and productive meetings with representatives of the Governments of Palestine and Israel, respectively.”

On 5 February 2021, the ICC decided that it may exercise its criminal jurisdiction in the Situation in Palestine, and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem.

“The Court’s territorial jurisdiction in the Situation in Palestine … extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,” the judges said.

The ICC’s chief prosecutor said in 2019 that there was a reasonable basis to open a war crimes probe into Israeli war crimes against native Palestinians in the Gaza Strip as well as Israeli settlement activity in the occupied West Bank.

But she asked the court to determine whether she has territorial jurisdiction before proceeding with the case.

‘Israel’ is not a member of the court and rejects its jurisdiction, a position backed by its close ally the United States and other countries who are members of the ICC.

Palestinians have welcomed the ruling as a chance for justice for victims of Israeli attacks.

Palestine has asked the court to look into Israeli war crimes during its 2014 war against the Gaza Strip, when the Israelis killed 2147 Palestinians including women and children, and wounded 10870 others, as well as Israel’s construction of settlements in the occupied West Bank and annexed east Jerusalem. Israeli settlements are illegal under international law.

“In the end, our central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides,” the prosecutor concluded.

“The Office is aware of the wider concern, respecting this Situation, for international peace and security. Through the creation of the ICC, States Parties recognised that atrocity crimes are “a threat to peace, security and wellbeing of the world”, and resolved “to guarantee lasting respect for and the enforcement of international justice.” The pursuit of peace and justice should be seen as mutually reinforcing imperatives.”

On Tuesday, Israeli Defence Minister Benny Gantz, however, told Reuters, “I was never afraid to go across enemy lines, I will continue to stand wherever I have to.”

He also called the ruling a “negative development” and added: “We have our own teams working in different (places) to try (and) influence (the ICC).”

Asked by Reuters how many Israelis, including himself, might expect to be subject to arrest should the probe lead to criminal investigations, Gantz said, “I guess several hundred, but we will take care of everybody.”

Gantz called that “an estimate”, declining to say if ‘Israel’ had drawn up a list of officials. ‘Israel’ will provide legal assistance to any implicated Israelis and will give them legal warnings regarding travel if necessary, Gantz said.

Asked if he himself might change his travel plans in light of the ICC probe, Gantz said: “So far, no.”