On Friday, February 5, the last hurdle in the way of an international investigation into war crimes committed in occupied Palestine has been removed, as the International Criminal Court in the Hague has finally approved the Prosecutor’s request to open legal proceedings regarding war crimes in the occupied Palestinian territories, including Gaza.
“Pre-Trial Chamber I of the International Criminal Court .. decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,” the ICC said in a press release that was made available to international media, including The Palestine Chronicle.
— The Palestine Chronicle (@PalestineChron) February 5, 2021
After years of haggling, the ICC had resolved in December 2019 that, “there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to Article 53(1) of the Statute.”
Article 53(1) merely describes the procedural steps that often lead, or do not lead, to an investigation by the Court.
That Article is satisfied when the amount of evidence provided to the Court is so convincing that it leaves the ICC with no other option but to move forward with an investigation.
— The Palestine Chronicle (@PalestineChron) February 6, 2021
Indeed, Bensouda had already declared late last year that she was,
“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.”
The decision, then, has angered Israel and its Western allies, who insisted that the ICC has no jurisdiction, since Palestine, they alleged, is not an independent state.
As soon as Bensouda made her decision, although, after much delay, the US administration swiftly moved to block the Court’s attempt at holding Israeli officials accountable. On June 11, US President Donald Trump signed an executive order slapping sanctions on members of the global judicial body, citing the ICC’s investigations of US war crimes in Afghanistan and Israeli war crimes in Palestine.
In an historic irony, Germany, which had to answer to numerous war crimes committed by the Nazi regime during World War II, stepped in to serve as the main defender of Israel at the ICC and to shield accused Israeli war criminals from legal and moral accountability.
Germany, among others, then argued that the ICC had no legal authority to discuss Israeli war crimes in the occupied territories. These efforts, however, eventually amounted to nil.
Dr. Triestino Mariniello, member of the legal team for Gaza victims at the ICC, told Palestine Chronicle TV:
“There are at least eight countries that are openly against an investigation of the Palestinian situation. Germany is one. Some of the others came as a surprise, to be honest, for at least four other countries, Uganda, Brazil, Czech Republic, and Hungary had explicitly recognized that Palestine is a State under international law, yet are now submitting statements before the ICC Pre-Trial Chamber saying that this is not true anymore.”
The Pre-Trial Chamber
Consequently, Bensouda referred the matter to the ICC Pre-Trial Chamber, requesting a “ruling on the scope of the Court’s territorial jurisdiction in the Situation in the State of Palestine”.
The pre-trial chamber consists of judges that authorize the opening of investigations. Customarily once the Prosecutor decides to consider an investigation, she has to inform the Pre-Trial Chamber of her decision.
According to the Rome Statute, Article 56(b),
“… the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.”
According to Dr. Mariniello:
“This request to the Pre-Trial Chamber was not necessary, for a simple reason: because the situation is being referred by the State of Palestine. So, when a State party refers a situation to the Prosecutor, the Prosecutor does not need authorization by the Pre-Trial Chamber.”
The Court’s Jurisdiction
The State of Palestine became a signatory of the Rome Statute in January 2015. By accepting the jurisdiction of the Court, Palestine became a State Party.
The Pre-Trial Chamber 1 reiterated that Palestine is a State Party, therefore the Court has jurisdiction over its territory. Dr. Mariniello told The Palestine Chronicle: “The Pre-trial Chamber did not only recognize that Palestine is a State, they also stated that the Court’s jurisdiction extends to the West Bank, including East Jerusalem, and Gaza. What we feared was a further fragmentation of the Palestinian territory” but, according to the ruling, this was not the case.
“It is a landmark decision since all the comments expressed by the legal team representing the Gaza victims have been approved. Therefore, they rejected all the arguments by civil society organizations or even states who were trying to persuade the Court that Palestine is not a State,” Dr. Mariniello added.
Professor Richard Falk, Former UN Special Rapporteur on Palestinian human rights, told Palestine Chronicle TV that the ICC investigation is a “breakthrough”.
“It’s a breakthrough even to consider the investigation, let alone the indictment and the prosecution of either Israelis or Americans that was put on the agenda of the ICC, which led to a pushback by these governments … Israel has denounced the Court as if it is improper to examine any State that claims the matter of geopolitical impunity. So you have a core denial of the rule of law.”
The Narrow Scope
Professor Falk elaborated,
“The scope of the investigation is something that is ill-defined, so it is a matter of political discretion,” Professor. Falk said, adding that “the Court takes a position that needs to be cautious about delimiting its jurisdiction and, therefore, it tries to narrow the scope of what it is prepared to investigate. I don’t agree with this view … but it does represent the fact that the ICC, like the UN itself, is subject to immense geopolitical pressure”.
The legal representatives of the ‘Palestinian Victims Residents of the Gaza Strip’ had expressed their concern on behalf of the victims regarding “the ostensibly narrow scope of the investigation into the crimes suffered by the Palestinian victims of this situation.”
The ‘narrow scope of the investigation’ has thus far excluded such serious crimes as Crimes Against Humanity. According to the Gaza legal team, the killing of hundreds and wounding of thousands of unarmed protesters participating in the ‘Great March of Return’ is a crime against humanity that must also be investigated.
The ICC’s jurisdiction, of course, goes beyond Bensouda’s decision to investigate ‘war crimes’ only.
Article 5 of the Rome Statute – the founding document of the ICC – extends the Court’s jurisdiction to investigate the following “serious crimes”:
(a) The Crime of Genocide
(b) Crimes Against Humanity
(c) War Crimes
(d) The Crime of Aggression
It should come as no surprise that Israel is qualified to be investigated on all four points and that the nature of Israeli crimes against Palestinians often tends to constitute a mixture of two or more of these points simultaneously.
That in mind, according to Mariniello,
“The scope of the investigation is not binding for the future. The Prosecutor can decide, at any moment, to include other crimes. We hope it will happen because, otherwise, many victims will never get justice.”
Mariniello told The Palestine Chronicle,
“Now, the hard work starts for the legal representatives of the ‘Palestinian Victims Residents of the Gaza Strip’, we cannot lower the guard. We need to work so that the ICC Prosecutor can identify the people responsible for international crimes and their criminal behavior as soon as possible.”
The decision that there were sufficient elements to investigate war crimes committed in the Occupied Palestinian Territories was taken by ICC Prosecutor, Fatou Bensouda, who is currently nearing the end of her term.
A new prosecutor should be elected soon.
(Managing Editor of The Palestine Chronicle, Romana Rubeo, composed this report)