The prosecutor at the International Criminal Court said on Wednesday that she has launched an investigation into alleged crimes in the Palestinian territories and has thrown the court in the middle of one of the most contentious conflicts in the last half century.
Fatou Bensouda said in a statement that the probe will investigate “crimes within the court’s jurisdiction allegedly committed” since June 13, 2014 and that the investigation will be conducted “independently, impartially and objectively, without fear or favor.”
Israel quickly condemned the decision.
Foreign Minister Gabi Ashkenazi called it “an act of moral and legal bankruptcy” and said that Israel “will take all necessary steps to protect its citizens and soldiers from legal persecution.”
Bensouda said there was a “reasonable basis” to open a war crimes investigation into Israeli military operations in the Gaza Strip and Israeli settlement activity in the occupied West Bank.
Following this assessment, she asked the judge to decide on the scope of the court’s jurisdiction in the troubled region. They did so last month, saying the court’s jurisdiction extends to territories occupied by Israel during the 1967 Mideast War.
The Palestinian Authority welcomed Wednesday’s move.
“This long-awaited step serves Palestine’s vigorous efforts to achieve justice and accountability as indispensable bases for peace,” the Palestinian Ministry of Foreign Affairs said. It called for an immediate end to the investigation because “the crimes committed by the leaders of the occupation against the Palestinian people are permanent, systematic and far-reaching.”
The Palestinians joined the court in 2015 and have long pushed for an investigation into Israel, which is not a member of the court. The Palestinians asked the court to try Israeli measures during its 2014 war against Palestinian militants in the Gaza Strip, as well as Israel’s construction of settlements in the occupied West Bank and annexed East Jerusalem.
Prosecutor: “Reasonable grounds” to proceed
Earlier, Israeli officials accused the court of crossing its borders, saying the Palestinians were not an independent sovereign state. Officials say Israel has been unfairly singled out and deny the allegations. They say that military action in Gaza was self-defense and that the status of the West Bank is disputed and must be resolved through negotiations.
However, Bensouda said there is a “reasonable basis to proceed and there are potential cases allowed.” At the same time, she said that the inquiry will “enable a continuous assessment of the measures taken at domestic level in accordance with the principle of complementarity.”
Eugene Kontorovich, director of international law at the Kohelet Policy Forum, a conservative Israeli think tank, said the court’s investigation “is completely unjustified – and predictable, given its long-standing lawless prejudice against the Jewish state.”
Israel has also claimed that its military justice system is independent and can investigate itself. The ICC was set up to deal with crime in countries where authorities cannot or do not want to initiate meaningful prosecutions.
Palestinians and human rights groups say Israel’s military justice system is biased and routinely whitewashes abuses by soldiers.
The investigation is also likely to investigate alleged crimes committed by Palestinian militants. Bensouda has said that her probe would investigate the actions of Hamas, which fired rockets indiscriminately at Israel during the 2014 war.
Israel blames Hamas and other militant groups for Palestinian war accidents and says the militants use residential areas as protection to fire rockets, leaving the military with no choice but to strike back.
Hamas welcomed the start of the investigation and urged Bensouda to “resist all pressure” that could spread the process.
“This is a step forward in carrying out justice, punishing the occupation and doing justice to the Palestinian people,” Hamas spokesman Hazem Qassem told the Associated Press.
Asked if the investigation could also cover rocket attacks from his group, he said that Hamas “is absolutely certain that its opposition to the occupation is legitimate” under international law.
Bensouda’s successor to take over the investigation
Bensouda said the priorities of the investigation will be “determined in good time” based on constraints including the coronavirus pandemic, limited resources and the prosecutors’ existing heavy workload.
“Such challenges, however frightening and complex as they are, cannot distract us from finally fulfilling the responsibilities that the Rome Statute imposes on the Agency,” she said, referring to the Court’s Treaty.
Israel conquered the West Bank, East Jerusalem and the Gaza Strip in the Mideast War in 1967. The Palestinians claim all three territories for a future independent state, a position that has gained widespread international support.
Israel annexed East Jerusalem, home to the city’s most important religious sites, after the 1967 war and considers it part of the capital. It says the West Bank is disputed, not occupied and withdrew from Gaza in 2005. Hamas’ militant group took control of Gaza two years later from the internationally recognized Palestinian Authority.
Human Rights Watch welcomed the court’s move as a step towards justice for Israeli and Palestinian victims.
“The court’s cramped dock should not deter the prosecution from violently prosecuting cases against anyone credibly involved in such crimes,” said Balkees Jarrah, deputy director of international justice at Human Rights Watch.
“All eyes will also be on the next prosecutor, Karim Khan, to pick up the baton and move forward quickly while demonstrating a firm independence in trying to hold even the most powerful,” Jarrah added. “ICC member states should be ready to violently protect the work of the Court from political pressure.”