ICC rules it has jurisdiction to investigate Israeli war crimes

Empowering Weak & Oppressed

Crescent International

Jumada' al-Akhirah 24, 1442 2021-02-06

Daily News Analysis

by Crescent International

The three-member panel of judges of the International Criminal Court (ICC) ruled yesterday that the court has jurisdiction over war crimes and atrocities committed by Israel in the occupied Palestinian territories.

The February 5 ruling sent Israeli rulers and their supporters into a frenzy of grief.

The judgement paves way for the court to open a criminal investigation into Israeli war crimes.

Not surprisingly, the tribe has launched broad assault on the court, denouncing its verdict as “political” rather than legal.

The Palestinians have welcomed the ruling.

The Palestinian Islamic resistance movement, Hamas welcomed the ICC ruling.

“Any international decision that leads to supporting the rights of Palestinians, defends their freedom, provides them with justice and prosecutes war criminals is in conformity with human values and international human rights,” said Raafat Marra, head of the Hamas media department, in a press release on Friday.

Palestinian Authority Prime Minister Mohammad Shtayyeh described the court’s verdict as a victory for justice and humanity.

The Palestinian news agency Wafa quoted him as saying: “This decision [of the ICC] is a victory for justice and humanity, for the values of truth, fairness and freedom, and for the blood of the victims and their families.”

Israeli Prime Minister Benjamin Netanyahu, not surprisingly, rejected the court’s jurisdiction and said Tel Aviv will “protect all of our citizens and soldiers” from prosecutionfrom what he called a “political body”.

It is worth noting that Netanyahu did not say Israeli soldiers did not commit war crimes during the war on Gaza in 2014 or have not committed crimes in the West Bank or East Jerusalem.

Instead, he has attempted to question the court’s jurisdiction since, as he put it, Israel is not a member of the ICC and has not, therefore, ratified the Rome Statute.

But the “State of Palestine”, as the Palestinian Authority calls itself, is a member of the ICC.

Its request to join the court was accepted by the UN Secretary General in 2015.

The ICC ruling came after its chief prosecutor, Fetou Bensouda requested the court to reach a conclusion on whether it had the right to exercise jurisdiction in the matter.

In December 2019, Bensouda determined at the end of her own five-year probe into the “situation in Palestine,” that there was “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem regions.

She named both the Israeli army and members of Hamas, as well as other “Palestinian armed groups” for such crimes, being extra careful not to appear to be siding with anyone.

It was clear that that the Israeli army had committed egregious crimes including blowing up apartment buildings with civilian occupants inside and wilfully killing children playing on the beach.

While Bensouda said she believed the court had jurisdiction under the terms of the Rome Statute which established the ICC, to investigate possible war crimes in the area, she wanted a definitive rule.

Member states and independent experts were invited to weigh in on the matter as well.

Israel, rejecting the court’s jurisdiction in the matter, chose not to do so. It, therefore, has no right to appeal the court’s ruling.

In February 2020, the “State of Palestine” and seven other countries, as well as 33 international organizations and independent scholars of international law, submitted amicus curiae (friend of the court) documents, offering their views on whether Palestine is a state that can transfer criminal jurisdiction over its territory to The Hague.

Aware that Israel would question whether Palestine is a state, the court in its February 5 ruling addressed this question.

In the 60-page, two-to-one decision, the court ruled that “Palestine qualifies as ‘the State on the territory of which the conduct in question occurred’,” and that “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 Chamber,” it continued, was “not persuaded by the argument that ‘[r]ulings on territorial jurisdiction necessarily impair a suspect/accused’s right to challenge’ jurisdiction under” the Rome Statute.

The three-member panel of judges comprised Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin who represented the majority opinion of the pretrial chamber.

The third judge, Péter Kovács of Hungary, wrote the dissenting opinion.

Responding to those countries that objected to Palestine transferring its jurisdiction to the Hague, the pretrial chamber noted that none of them raised an objection when the Palestinians applied for membership at the ICC or anytime after.

“Regardless of Palestine’s status under general international law, its accession to the [Rome] Statute followed the correct and ordinary procedure,” the chamber ruled.

It, therefore, had the legal right to do so.

The case now returns to Bensouda, to decide whether she will move forward with a criminal investigation.

Based on her 2019 ruling, she is expected to do so.

However, her term as prosecutor is set to expire in June.

Some Israeli officials believe that her as yet unelected successor could be “persuaded” to take a different path.

“There is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza” by the Israeli forces, for launching disproportionate attacks and “wilful killing and wilfully causing serious injury to body or health… and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions,” she stated in 2019.

She also found a “reasonable basis to believe that members of Hamas and Palestinian armed groups” had targeted civilians.

Bensouda further said Israel’s settlement policy in the West Bank could also constitute a war crime, as could its response to weekly protests along Gaza’s border with Israel held since March 2018.

While the court demarcated the ‘State of Palestine’ to include those three exact areas, it ruled that it was “neither adjudicating a border dispute under international law nor prejudging the question of any future borders.”

Despite its carefully-worded ruling, the Zionists are not amused.

“The court in its decision impairs the right of democratic countries to defend themselves,” Netanyahu thundered.

His ludicrous assertion is based on the dubious assumption that countries that claim to be “democratic” do not commit crimes.

Facing charges of corruption and misappropriation of funds at home that he is trying to wriggle out of, his angst at any legal ruling must be seen in this light.

It is Important to note, however, that the court prosecutes individuals not states.

Thus, Israeli military and political leaders, if convicted by the court, would face the prospect of arrest if they were to travel to countries that are members of the ICC and have ratified the Rome Statute.

It is highly unlikely that any country would send its forces to capture these war criminals in Occupied Palestine and bring them to justice in the Hague.

However, the latest ruling is an important step in shining light on the criminal conduct of Israeli military and political leaders.

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