With more than 52 years of impunity for alleged war crimes in the Palestinian territories of the West Bank, Gaza Strip and east Jerusalem, which Israel has illegally occupied, it is likely to come to an end in 2020. Preliminary investigations by the International Criminal Court (ICC) in The Hague into alleged crimes committed by the Israeli military and security forces, Hamas and other actors in the Gaza Strip could begin as early as the first half of next year. Before that, however, the competent chamber must decide to what extent the court has territorial jurisdiction over the three occupied territories. Chief prosecutor Fatou Bensouda assumes that this territorial jurisdiction is in any case given.
Requirements for the opening of proceedings are fulfilled
Last Friday, the chief prosecutor announced the outcome of her preliminary investigation, which was opened in January 2015 at the request of the “state of Palestine”. “All the conditions required by Article 53 of the ICC Statute for the opening of proceedings have been met,” Bensouda said. In the three areas, “war crimes have been committed “and"continue to be committed.” The opening of proceedings by the International Criminal Court on these crimes was “permissible” because local or state courts were “unwilling or unable” to carry out proceedings. Finally, “there are no substantial grounds for believing that the conduct of investigations is not in the interest of Justice”.
However, the chief prosecutor handed over the” highly controversial question “of whether the three occupied territories also fall under the territorial jurisdiction of the ICC to a three-member Pre-Trial Chamber of the court, calling for a"rapid investigation and decision without unnecessary delay”.
Israel and USA reject investigation
The first reactions of the governments of Israel and the United States to Bensouda’s declaration made it clear how controversial this question is. “The International criminal court only has a jurisdiction for petitions filed by sovereign States, but there has never been a sovereign Palestinian state,” said Israeli Prime Minister Benjamin Netanyahu.
US Secretary of State Mike Pompeo commented: “We strongly oppose this and any other measure that unfairly targets Israel. The Palestinians “do not have a sovereign state” and therefore cannot become a “full member” of institutions such as the International Criminal Court.
War criminals Israel and war criminals USA have not yet joined the International Criminal Court, which was founded in Rome in 1998, and reject any jurisdiction of the court for the prosecution of crimes committed by their citizens. On the other hand, at the beginning of January 2015, at the joint request of the Palestinian Authority in the West Bank and Hamas, which governs the Gaza Strip, the “state of Palestine” became a member of the International Criminal Court and thus explicitly submitted to its jurisdiction. Previously, at the end of November 2012, the UN General Assembly upgraded the long-standing “observer"status of Palestine to “non-member observer state"status. On this basis of international law, the “state of Palestine”, in addition to its accession to the International Criminal Court, has now also been included in a number of UN Sub-organisations and has joined numerous multilateral and bilateral agreements.
Territorial jurisdiction to clarify binding
In her 112-page brief to the pre-trial chamber, chief prosecutor Bensouda makes it clear that, based on this development in international law over the past seven years, she considers that the International Criminal Court has unlimited territorial jurisdiction over the three occupied Palestinian Territories. In the event that the trial chamber does not agree with this view, Bensouda refers, as a substitute, to the Geneva Conventions and decisions of the UN Security Council and the General Assembly since 1947, as well as to judgments of the International Court of justice on the Israeli-Palestinian conflict, which give rise to the territorial jurisdiction of the International Criminal Court.
A final and binding clarification of this question is necessary for all parties before the International Criminal Court actually opens investigations into alleged war crimes, the chief prosecutor emphasizes several times. This would lead to consequences with regard to the obligation of Israel, the Palestinians and other parties to cooperate with the court.