The ICC says it has jurisdiction
in the occupied territories
On 5 February 2021, the International Criminal Court (ICC) decided that it had
jurisdiction in the territories occupied by Israel since 1967, namely Gaza and
the West Bank, including East Jerusalem.
This is another step on a long road which began on 16 January 2015 when the ICC Prosecutor, Fatou Bensouda, opened a preliminary
examination into the “situation in Palestine”. Almost five years later, on 20 December 2019,
the Prosecutor announced that this examination had determined that there was a
reasonable basis to believe that war crimes had been committed in the occupied
territories by
(a)
personnel acting on behalf of the Israeli state, and
(b)
by members of Hamas and other Palestinian groups.
(see here, paragraphs 94-100).
She
therefore proposed to open a full investigation, which may eventually lead to
the indictment of individuals suspected of war crimes committed in the occupied
territories. However, before she proceeded
with this, she decided to seek confirmation from the Court that it would have jurisdiction
to try them. The Court has now confirmed
that – and the way is open for the full investigation to proceed.
Pure antisemitism?
Denouncing the Court’s decision, Prime Minister Netanyahu said:
“When the
ICC investigates Israel for fake war crimes – this is pure antisemitism.”
That accusation might have some merit if the ICC’s preliminary
investigation had confined itself to the examination of Israeli actions in the
occupied territories. In fact, the ICC has
also examined the actions of Palestinian groups.
The Prime Minister went on to complain about the ICC ‘s readiness to
investigate Israeli actions while it “refuses
to investigate brutal dictatorships like Iran and Syria”, which, he claimed, “commit
horrific atrocities almost daily”.
Here, the Prime Minister
is playing fast and loose with the truth.
He knows fine well that the ICC has never “refused” to investigate possible
war crimes committed in Iran and Syria.
There is simply no question of the ICC doing so – it lacks the authority
to do so, since both states have opted out of joining the ICC and accepting its
jurisdiction. The Prime Minister can
hardly criticise Iran and Syria for doing that, since Israel itself has done
the same.
Right not to be
subjected to the Court’s jurisdiction
The Israeli Foreign Minister, Gabi Ashkenazi,
condemned the Court’s decision, saying:
“We call upon all nations that value
the international legal system … to respect the sovereign rights of states not
to be subjected to the Court’s jurisdiction.”
This call to all nations by the Foreign Minister Ashkenazi is
spurious. Like every other state in this
world, Israel already has the right “not
to be subjected to the Court’s jurisdiction“.
Not only that, Israel has already exercised that right by choosing not
to join the ICC. As a result, the ICC cannot acquire jurisdiction within
Israel, that is, within its internationally recognised boundaries west of the
Green Line.
The problem with this
for Foreign Minister Ashkenazi and Israel
is that the ban on the ICC acquiring jurisdiction does not extend to the
territories occupied illegally by Israel since 1967, which the international
community stubbornly refuses to recognise as Israeli territory.
And, unfortunately for
Israel, the Palestinians have managed to get the ICC to accept jurisdiction
over these territories and made it possible for Israeli actions there to be
investigated and prosecuted by the Court.
The Palestinian Authority made its first attempt to do this in January
2009, with the objective of having Israelis
prosecuted for actions against Gaza during Operation Cast Lead. It took the ICC Prosecutor over three years
(until April 2012) to decide that the Court couldn’t accept the jurisdiction
offered because Palestine wasn’t a state.
Prospects
improved for ICC involvement when in November 2012 Palestine was granted observer rights at the UN
as a "non-member” state. This was
achieved when the General Assembly passed resolution A/RES/67/19
by 138 votes to 9. It
reaffirmed “the right of the Palestinian people to self-determination and to
independence in their State of Palestine on the Palestinian territory occupied
since 1967” and accorded Palestine the status of “non-member” state at the UN.
On 2 January 2015, Palestine deposited with
the UN Secretary General, Ban Ki-moon, documents necessary for Palestine to
become a party to the Rome Statute and accept ICC jurisdiction. On 6
January 2015, Ban Ki-moon, announced that the Rome Statute
“will enter into force for the State of Palestine on April 1, 2015”, making
Palestine the 123rd state party to the Rome Statute.
Population transfer is
a war crime
Responding to the ICC’s
decision, Prime Minister Netanyahu accused it of “outrageously claim[ing] that when Jews live in our homeland, this is a war
crime”.
There, he is referring
to the Jews living in the settlements that successive Israeli governments have
built in the occupied territories. As
the Prime Minister well knows, this colonisation of occupied territory is
contrary to international law, in particular to Article 8(2)(b)(viii) of the Rome Statute, which defines
“the transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian population into
the territory it occupies”
to be a war crime.
It was no surprise then
that after completing her preliminary examination in December 2019, the Prosecutor, Fatou Bensouda, concluded
that:
“There is a reasonable basis to
believe that in the context of Israel’s occupation of the West Bank, including
East Jerusalem, members of the Israeli authorities have committed war crimes
under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli
civilians into the West Bank since 13 June 2014.” (see here, paragraphs 96).
In other words, there is a prima facie
case that individuals responsible for Israel’s never
ending settlement building project in the occupied territories are guilty of war
crimes. Since this project is authorised at the highest level in the Israeli state,
senior political figures may be guilty. And it may be that Americans and others who have
provided funds for the project could be prosecuted for aiding and abetting war
crimes.
Other possible
war crimes identified by the Prosecutor
In her
preliminary examination, Fatou Bensouda identified other possible war crimes
including (see here, paragraphs 94-100)
:-
With respect to Operation
Protective Edge, Israel’s military action against Gaza in July/August 2014, she
concluded:
There is a reasonable basis to believe that
members of the Israel Defense Forces committed the
war crimes of:
· intentionally launching disproportionate
attacks in relation to at least three incidents which the Office has focussed
on
·
wilful killing
and wilfully causing serious injury to body or health
On actions by Hamas and other Palestinian
armed groups, she concluded:
There is a reasonable basis to believe that
members of Hamas and Palestinian armed groups committed the war crimes of:
· intentionally directing attacks against
civilians and civilian objects
· using protected persons as shields
On the Israeli killing of Palestinian demonstrators
at the Gaza border fence since March 2018, she concluded:
The Prosecution further considers that the
scope of the situation could encompass an investigation into crimes allegedly
committed in relation to the use by members of the IDF of non-lethal and lethal
means against persons participating in demonstrations beginning in March 2018
near the border fence between the Gaza Strip and Israel, which reportedly
resulted in the killing of over 200 individuals, including over 40 children,
and the wounding of thousands of others.
Finally, Fatou
Bensouda made it clear that the possible
crimes she had identified in her preliminary examination are “illustrative
only” and that the full investigation “will not be limited only to the specific
crimes that informed her assessment at the preliminary examination stage”. She added: “The situation in Palestine is one
in which crimes allegedly continue to be committed”.
David Morrison
10 February 2021