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ICC rules it has jurisdiction over Palestinian Territories, paving way for probe of Israeli alleged war crimes

26th Feb 2021

Elham Asaad Buaras

The International Criminal Court (ICC) ruled on February 5 that it has jurisdiction over war crimes and atrocities committed in the Palestinian territories, paving the way for a criminal investigation.

Judges said their decision does not imply any attempt to determine statehood or legal borders but was based on jurisdictional rules in its founding documents.

Israel, which is not a member of the court, has rejected its jurisdiction.

The ICC’s Chief Prosecutor, Fatou Bensouda, said in 2019 that there was a “reasonable basis” to open war crimes probe into Israeli military actions in the Gaza Strip as well as Israeli settlement activity in the West Bank. However, she asked the court to determine whether she has territorial jurisdiction before proceeding with the case.

She named both the Israeli Defence Forces and armed Palestinian groups such as Hamas as possible perpetrators.
Israel has never ratified the Rome Statute, but the UN Secretary-General accepted the accession of the Palestinians in 2015.

In their decision, the ICC said it had decided by majority that the court’s jurisdiction “extends to the territories occupied by Israel since 1967, namely, Gaza and the West Bank, including East Jerusalem”.

The court said the decision was based on rules in the court’s founding documents and does not imply any attempt to determine statehood or legal borders.

The Palestinians have long pushed for the case and asked the court to look into Israeli actions 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.

The Palestinian foreign ministry said it was ready to cooperate with the ICC’s prosecutor in the event of an investigation.

Nabil Shaath, a senior aide to Palestinian leader Mahmoud Abbas, welcomed the decision and said it proved that Palestinians were right to go to the ICC. “This is good news, and the next step is to launch an official investigation into Israel’s crimes against our people,” he said

Hussein al-Sheikh, civil affairs minister of the Palestinian Authority said, “The International Criminal Court’s decision to consider Palestine as a member state according to the Treaty of Rome, and that it has jurisdiction to consider issues related to the Palestinian territories and complaints raised by the, is a victory for rights, justice, freedom and moral values in the world.”

Israeli Prime Minister. Benjamin Netanyahu called the ruling “pure antisemitism” it “proves once again the court is a political body and not a legal institution.” He added that Israel would “protect all of our citizens and soldiers” from prosecution.

International human rights groups welcomed the ruling, with the Human Rights Watch (HRW) calling it “pivotal”. Balkees Jarrah, HRW’s senior counsel on international justice, said the ruling “finally offers victims of serious crimes some real hope for justice after a half-century of impunity. Its high time that Israeli and Palestinian perpetrators of the gravest abuses—whether war crimes committed during hostilities or the expansion of unlawful settlements—face justice,” she said.

The US, however, voiced “serious concerns” over the ruling. State Department spokesman Ned Price said, “We have serious concerns about the ICC’s attempts to exercise jurisdiction over Israeli personnel. We have always taken the position that the court’s jurisdiction should be reserved for countries that consent to it or are referred by the UN Security Council.”

The international community widely considers Israeli settlements in the West Bank to be illegal under international law but has done little to pressure Israel to freeze or reverse its growth.

The ICC is meant to serve as a court of last resort when countries’ judicial systems are unable or unwilling to investigate and prosecute war crimes.

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