Palestinians Decry Delay of Israel War Crimes Investigation
Prosecutor Fatou Bensouda of the International Criminal Court.
Prosecutor Fatou Bensouda of the International Criminal Court. (Bas
Czerwinski / AP)
This story was originally published on Truthout.
In a significant development for Israeli accountability, Fatou Bensouda,
chief prosecutor of the International Criminal Court (ICC), seeks to launch
an investigation into war crimes committed in Palestine. But she has
established an unnecessary and politically suspect condition to slow down
the process.
Following a five-year preliminary examination, Bensouda found a reasonable
basis to mount an investigation of "the situation in Palestine." She is
"satisfied that (i) war crimes have been or are being committed in the West
Bank, including East Jerusalem and the Gaza Strip . . . (ii) potential cases
arising from the situation would be admissible; and (iii) there are no
substantial reasons to believe that an investigation would not serve the
interests of justice."
Bensouda began the preliminary examination six months after Israel's July
2014 "Operation Protective Edge," during which Israeli military forces
killed 2,200 Palestinians, nearly one-quarter of them children and more than
80 percent civilians.
In a preliminary examination, the Office of the Prosecutor decides whether:
the crimes fall within the jurisdiction of the ICC; there are genuine
national proceedings; and beginning an investigation would further the
interests of justice and the victims.
In an investigation, the prosecutor develops evidence, identifies suspects,
and applies for arrest warrants and summons to appear before the Court.
Bensouda Asks Court to Decide Whether It Has Jurisdiction
Bensouda filed a 112-page document with the Court's Pre-Trial Chamber. She
found a reasonable basis to believe that Israeli forces committed the war
crimes of willful killing, willfully causing serious injury to body or
health, disproportionate use of force, transfer of Israeli civilians into
the Palestinian territory of the West Bank, and the killing of over 200
Palestinians during demonstrations at the Israel-Gaza fence. She also cited
a reasonable basis to investigate possible war crimes by Palestinians,
including intentional attacks against civilians, using civilians as human
shields, and the commission of torture and willful killing.
The prosecutor could have commenced the investigation without asking the
Court's permission. Bensouda determined "that the Court does indeed have the
necessary jurisdiction in this situation." But given the "unique and highly
contested legal and factual issues," particularly the issue of "the
territory within which the investigation may be conducted," she asked the
Pre-trial Chamber for a ruling on "the scope of the territorial
jurisdiction" of the ICC under the Rome Statute. Bensouda wants confirmation
that the "territory" subject to investigation "comprises the West Bank,
including East Jerusalem, and Gaza." She recommends that the jurisdictional
issue be "resolved without undue delay."
Israel is not a party to the Rome Statute. The ICC, however, can exercise
jurisdiction over nationals of a non-party if they commit crimes in the
"territory" of a state party. In 2012, Palestine was recognized as a
non-member observer State to the United Nations under General Assembly
Resolution 67/19. Palestine acceded to the Rome Statute and became a member
of the States Parties of the International Criminal Court.
The State of Palestine, which welcomed Bensouda's decision to start an
investigation, noted that the ICC prosecutor "has jurisdiction over the
occupied territory of the State of Palestine, given that Palestine is a
State Party to the Rome Statute and that the State of Palestine granted the
Prosecutor jurisdiction to look into crimes committed in its territory."
The prosecutor could have commenced the investigation without asking the
Court's permission.
Israel contends that "a sovereign Palestinian State does not exist, and that
the precondition to the Court's jurisdiction thus cannot be fulfilled. This
is because sovereignty over the West Bank and the Gaza Strip remains in
abeyance, and the Palestinian entity manifestly fails to meet the criteria
for statehood under general international law." In his legal opinion,
Israeli Attorney General Avichai Mandelblit wrote, "the Palestinian
Authority lacks effective control over the territory concerned (and in
claiming that the territory is occupied by Israel, essentially concedes that
that is so)." He claims that because there is no sovereign Palestinian
state, there is no "territory" over which the Court can exercise
jurisdiction.
However, Israel is occupying the Palestinian territories, which does not
give Israel sovereignty over them. Al-Haq, Al-Mezan Center for Human Rights
(Al-Mezan) and the Palestinian Center for Human Rights (PCHR) issued a joint
statement saying, "Israel does not have sovereign authority, but de facto
administrative authority premised on actual and potential effective control
in terms of military presence and substitution of authority." Moreover,
".Israel, the Occupying Power, exercises extra-territorial jurisdiction in
the occupied Palestinian territory for purposes related to the protection of
the occupied population due to the fact that the area is under its temporary
control and military occupation. This does not in any way give Israel
sovereign rights over the territory," they wrote.
Why Did Bensouda Delay the Investigation?
The issue of territorial jurisdiction is "a redundant and moot point" that
amounts "to an unnecessary delay in the progression of the situation to full
investigation," the Palestinian organizations noted. Since jurisdictional
issues are usually decided during the preliminary examination, the groups
asked why "the question of territorial jurisdiction has only now come to the
fore?"
After Bensouda indicated she wished to open an investigation, she was
lambasted by the Israeli press, which branded her "public enemy number one."
Bensouda may fear additional repercussions if she proceeds with the
investigation without a jurisdictional ruling from the Court. In April 2019,
after she asked the Court to open an investigation into war crimes committed
by Afghan and U.S. forces in Afghanistan, the United States revoked her
visa. The Court then denied Bensouda's request to launch the investigation,
citing the "interests of justice." Secretary of State Mike Pompeo threatened
to take further action against investigators who participate in an ICC
investigation.
Although Bill Clinton signed the Rome Statute, the United States never
ratified it. In fact, George W. Bush withdrew the U.S.'s signature from the
statute in 2002. Congress then enacted the American Service-Members'
Protection Act to prevent prosecution of U.S. armed forces in the ICC. One
provision, called the "Hague Invasion Act," authorized the use of force to
extricate any U.S. or allied national detained by the ICC. The Bush
administration blackmailed 100 countries that were parties to the statute by
forcing them to sign bilateral immunity agreements pledging not to turn over
U.S. persons to the ICC or the U.S. government would withhold foreign aid to
them.
Bensouda's term will expire in 2021 and the Court's consideration of the
jurisdictional issue could extend beyond her service. That may lessen any
negative consequences she might suffer.
Israeli Prime Minister Benjamin Netanyahu blasted Bensouda for her intention
to initiate an investigation, charging her with denying "the truth when she
says that the very act of Jews living in their ancestral homeland, the land
of the Bible, that this is a war crime." Likewise, Netanyahu's political
rival Benny Gantz said that "the Israeli army is one of the most moral
militaries in the world" and "the Israeli army and State of Israel do not
commit war crimes."
In fact, there is overwhelming evidence of Israel's commission of war
crimes, including willful killing; willfully causing great suffering or
serious injury to body or health; unlawful and wanton, extensive destruction
and appropriation of property not justified by military necessity; and
intentionally directing attacks against the civilian population.
Moreover, by the end of 2018, Israel had unlawfully transferred 628,000
Israeli settlers to settlements in the occupied West Bank, including East
Jerusalem. The Rome Statute lists as a war crime, "The transfer, directly or
indirectly, by the Occupying Power of parts of its own civilian population
into the territory it occupies."
"After 71 years of continuing Nakba and 52 years of military occupation, the
time has come to end impunity for Israel's war crimes and crimes against
humanity committed in the furtherance of its aggressive colonization of
Palestinian territory," the Palestinian human rights organizations declared.
Nakba, which is Arabic for "catastrophe," refers to the ethnic cleansing of
Palestine, as 750,00 Palestinians fled or were evicted from their homes from
1947 to 1949 during the creation of Israel. In 1967, after the Six-Day War,
Israel militarily occupied the Palestinian territories.
Accountability for Israeli war crimes is long overdue. The ICC should
immediately ratify Bensouda's investigation.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a
former president of the National Lawyers Guild. She wrote "Cowboy Republic:
Six Ways the Bush Gang Has Defied the Law," co-authored .
Marjorie Cohn
