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Analysis

BICOM Briefing | The International Criminal Court and the Israeli-Palestinian Conflict

March 4, 2021 Update: 

The International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda announced yesterday that she will open a formal investigation into alleged war crimes in the Palestinian territories. In her statement, Bensouda said the probe will be conducted “independently, impartially and objectively, without fear or favour.”

The decision by Bensouda was met with broad condemnation in Israel. Foreign Minister Gabi Ashkenazi said the move is “an act of moral and legal bankruptcy. It is a political decision that turns the court into a tool in the hands of extremists who back terrorist organisations and antisemitic bodies.” He added: “The fact that the decision has been welcomed by Hamas, a murderous terrorist organisation, shows clear proof that it has no moral validity.” Attorney General Avichai Mandelblit said that ICC had no authority to launch an investigation and that Israel has an extensive system for reviewing allegations of alleged violations of international law and could independently look into charges of lawbreaking. In Israel, the Judge Advocate General’s Office acts as the legal advisor for policies beyond the 1967 Green Line and the Supreme Court has legal review over Israel’s actions in the territories.

US Secretary of State Antony Blinken echoed the Israeli stance in a statement in which he said the US “firmly opposes and is deeply disappointed by this decision. The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC”.

Senior Israeli officials say the Palestinian Authority’s strategy to criminalise the conflict at the ICC reduces the level of trust between the two sides, will lead to greater polarisation and further delay the dialogue required to resolve the conflict.

What comes next? 

ICC Prosecutor Bensouda will send a formal letter to Israel and the Palestinians in which she will itemise which specific incidents she wishes to investigate. It is expected that the prosecutor will look into three events: Operation Protective Edge in 2014 and the turn of events that preceded it, (Israel highlights the politically biased decision to begin the investigation the day after three Israeli teenagers were kidnapped and subsequently murdered), the Great March of Return protests that were held along the Gaza Strip border beginning on 30 March 2018; and settlements in the West Bank. The parties will then have a month to respond to the letter and inform the prosecutor whether they intend to investigate the incidents of alleged war crimes themselves. If Israel asks to conduct its own investigation that is approved by the ICC, it will freeze the investigation by the ICC. Alternatively, the ICC may conclude that Israel has sufficiently investigated the alleged crimes and close the case.

If the ICC does decide to launch an investigation, the first stage could involve taking testimonies from victims of the alleged crimes. If Israel refuses entry to ICC officials, testimonies will be taken in The Hague, where the court is based, or in other countries. The ICC could also take testimonies from former IDF soldiers, human rights organisations and regional experts. It’s unlikely that the ICC will look to prosecute low-level soldiers or officials, instead it will focus on government decision makers and senior army officers.

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BICOM has published a new paper about the Pre-Trial Chamber at the International Criminal Court deciding that the court has territorial jurisdiction in the West Bank, East Jerusalem and Gaza. The Pre-Trial Chamber’s review of the question of the court’s jurisdiction followed a five-year preliminary examination by ICC Chief Prosecutor Fatou Bensouda of Gambia. In December 2019, Bensouda announced that she had “reasonable basis to believe that war crimes were committed” by the Israel Defence Forces (IDF) and Hamas, as well as other “Palestinian armed groups”. In her statement, Bensouda asked the Pre-Trial chamber for a definitive ruling to determine the scope of the court’s territorial jurisdiction. Between January to mid-March 2020, the judges invited “Palestine, Israel, and victims in the Situation in the State of Palestine” as well as other states, organisations and/or persons to submit written observations via amicus curiae briefs (that offer information, expertise, or insight that has a bearing on the issues in the case).

This briefing looks at the historical context between the ICC and the Israeli-Palestinian conflict, lays out the arguments raised by the Palestinians – who have praised the decision – and by Israelis  – who have criticised it – and outlines what the next stage is for the ICC and how an investigation, if it were to be opened, might impact the prospects for peace between Israel and the Palestinians.

The Briefing is available as a PDF below.

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