In a move welcomed by human rights advocates, the chief prosecutor of the International Criminal Court on Wednesday confirmed her office will open an investigation into allegations of war crimes in the occupied Palestinian territories against both Israeli forces and Palestinian groups such as Hamas.
The announcement from Fatou Bensouda, the outgoing prosecutor who will be replaced by Karim Khan in mid-June, came after the ICC's pre-trial chamber I decided by majority in early February that the court's jurisdiction "extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem," which paved the way for probing the "situation in Palestine" (pdf).
Rights groups and Palestinian families had praised that ruling, with one airstrike survivor who lost over two dozen relatives telling Amnesty International that "the ICC represents our only hope to achieving long-denied accountability and justice." The reaction to Bensouda's latest statement was similar.
As Prosecutor Bensouda notes "positive & negative" reactions to #Palestine decision in careful, calibrated stmt, all must acknowledge tremendous pressure she & her office undr bc follows facts/law to investigate powerful countries (US, Isr, Rus) #Shame @potus MUST #RescindEO13928 https://t.co/2foCgX2Li5
— Katherine Gallagher (@katherga1) March 3, 2021
Adalah – The Legal Center for Arab Minority Rights in Israel said that "this decision confirms what Adalah has maintained for years: there is serious and grave suspicion that Israel is committing war crimes against the Palestinian people."
The probe will cover any relevant crimes committed by Israeli authorities as well as members of the Israel Defense Forces, Hamas, and Palestinian armed groups since June 13, 2014.
"In addition to continued construction of settlements in the occupied West Bank, the Israeli military acts in violation of the norms of international law and systematically violates the laws of war—especially when it indiscriminately harms civilians," Adalah said. "Israel's continued shielding of those responsible for these crimes, and its refusal to conduct genuine, effective, and independent investigations into the cases Adalah has brought before the Israeli legal system, have culminated in this pivotal moment."
#ICC #Palestine investigation must QUICKLY lead to cases against those senior Israeli civilian & military leaders who bear greatest responsibility for war crimes & crimes against humanity committed against civilians. The #cycleofimpunity - and reoccurrence - must be #broken.
— Katherine Gallagher (@katherga1) March 3, 2021
Balkees Jarrah, associate international justice director at Human Rights Watch, said that "the ICC prosecutor's decision to open a Palestine investigation moves Israeli and Palestinian victims of serious crimes one step closer to obtaining a measure of justice that has for too long eluded them."
Jarrah also addressed barriers to the case, some of which Bensouda had acknowledged.
The prosecutor said that "how the office will set priorities concerning the investigation will be determined in due time, in light of the operational challenges we confront from the pandemic, the limited resources we have available to us, and our current heavy workload. Such challenges, however, as daunting and complex as they are, cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the office."
As Jarrah put it: "The court's crowded docket shouldn't deter the prosecutor's office from doggedly pursuing cases against anyone credibly implicated in such crimes. All eyes will also be on the next prosecutor Karim Khan to pick up the baton and expeditiously move forward while demonstrating firm independence in seeking to hold even the most powerful to account. ICC member countries should stand ready to fiercely protect the court's work from any political pressure."
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Some of that political pressure is already on full display. Reuters reports Israeli Foreign Minister Gabi Ashkenazi said that "the decision to open an investigation against Israel is an exception to the mandate of the tribunal, and a waste of the international community's resources by a biased institution that has lost all legitimacy."
According to Barak Ravid, diplomatic correspondent at Walla News, Israeli Prime Minister Benjamin Netanyahu—who responded to the jurisdiction ruling with claims of anti-Semitism—declared that "Israel is under attack today," describing the ICC as "biased" and the probe decision as "hypocritical and anti-Semitic."
Weaponizing anti-Semitism to avoid accountability for war crimes will not work. Israel can stop ICC investigation if it:
* Ends unlawful acts and illegal settlements which have expanded since 2014
* Credibly investigate and prosecute war crimes which it has so far failed to do https://t.co/cppmz21i8r
— Jamil Dakwar (@jdakwar) March 3, 2021
By contrast, the Palestinian Authority foreign ministry said the probe is "a long-awaited step that serves Palestine's tireless pursuit of justice and accountability, which are indispensable pillars of the peace the Palestinian people seek and deserve."
Hamas spokesperson Hazem Qassem defended the Islamist militant group's actions, telling Reuters: "We welcome the ICC decision to investigate Israeli occupation war crimes against our people. It is a step forward on the path of achieving justice."
Bensouda vowed that "any investigation undertaken by the office will be conducted independently, impartially, and objectively, without fear or favor." She added:
To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes. In meeting this responsibility, the office focuses its attention on the most notorious alleged offenders or those alleged to be the most responsible for the commission of the crimes.
In the end, our central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides. The office is aware of the wider concern, respecting this situation, for international peace and security. Through the creation of the ICC, states parties recognized that atrocity crimes are "a threat to peace, security and well-being of the world," and resolved "to guarantee lasting respect for and the enforcement of international justice." The pursuit of peace and justice should be seen as mutually reinforcing imperatives.
Noting that last line, Jamil Dakwar, director of the ACLU's Human Rights Program, tweeted that "this particular sentence is clearly directed to the Biden administration, which has argued that seeking accountability before the ICC will undermine the 'peace process.'"