War crimes and Israel

Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), has, once and for all, settled the doubts on the Court’s jurisdiction to investigate war crimes committed in occupied Palestine.

On April 30, Bensouda released a 60-page document diligently laying down the legal bases for that decision, concluding that “the Prosecution has carefully considered the observations of the participants, and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory.”

Bensouda’s legal explanation was itself a preemptive decision, dating back to December 2019, as the ICC Prosecutor must have anticipated an Israeli-orchestrated pushback against the investigation of war crimes committed in the Occupied Territories.

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.

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.”

Naturally, Israel and its main Western ally, the United States, fumed. Israel has never been held accountable by the international community for war crimes and other human rights violations in Palestine. The ICC’s decision, especially if the investigation moves forward, would be an historic precedent.

But, what are Israel and the US to do when neither are state parties in the ICC, thus having no actual influence on the internal proceedings of the court? A solution had to be devised.

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.

On February 14, Germany filed a petition with the ICC requesting an “amicus curiae”, meaning “friend of the court”, status. By achieving that special status, Germany was able to submit objections, arguing against the ICC’s earlier decision on behalf of Israel.

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.

The ball is now in the court of the ICC pre-trial chamber. 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.

Excerpted from: 'What You Need to Know about the ICC Investigation of War Crimes in Occupied Palestine'.

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