The ICC says it has jurisdiction

in the occupied territories


On 5 February 2021, the International Criminal Court (ICC) decided that it had jurisdiction in the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.


This is another step on a long road which began on 16 January 2015 when the ICC Prosecutor, Fatou Bensouda, opened a preliminary examination into the “situation in Palestine”.   Almost five years later, on 20 December 2019, the Prosecutor announced that this examination had determined that there was a reasonable basis to believe that war crimes had been committed in the occupied territories by


(a)   personnel acting on behalf of the Israeli state, and

(b)   by members of Hamas and other Palestinian groups.


(see here, paragraphs 94-100).


She therefore proposed to open a full investigation, which may eventually lead to the indictment of individuals suspected of war crimes committed in the occupied territories.  However, before she proceeded with this, she decided to seek confirmation from the Court that it would have jurisdiction to try them.  The Court has now confirmed that – and the way is open for the full investigation to proceed.



Pure antisemitism?    


Denouncing the Court’s decision, Prime Minister Netanyahu said:


“When the ICC investigates Israel for fake war crimes – this is pure antisemitism.”


That accusation might have some merit if the ICC’s preliminary investigation had confined itself to the examination of Israeli actions in the occupied territories.  In fact, the ICC has also examined the actions of Palestinian groups.


The Prime Minister went on to complain about the ICC ‘s readiness to investigate Israeli actions while it “refuses to investigate brutal dictatorships like Iran and Syria”, which, he claimed, “commit horrific atrocities almost daily”. 


Here, the Prime Minister is playing fast and loose with the truth.  He knows fine well that the ICC has never “refused” to investigate possible war crimes committed in Iran and Syria.  There is simply no question of the ICC doing so – it lacks the authority to do so, since both states have opted out of joining the ICC and accepting its jurisdiction.  The Prime Minister can hardly criticise Iran and Syria for doing that, since Israel itself has done the same.



Right not to be subjected to the Court’s jurisdiction


The Israeli Foreign Minister, Gabi Ashkenazi, condemned the Court’s decision, saying:


“We call upon all nations that value the international legal system … to respect the sovereign rights of states not to be subjected to the Court’s jurisdiction.”


This call to all nations by the Foreign Minister Ashkenazi is spurious.  Like every other state in this world, Israel already has the right “not to be subjected to the Court’s jurisdiction.  Not only that, Israel has already exercised that right by choosing not to join the ICC.  As a result, the ICC cannot acquire jurisdiction within Israel, that is, within its internationally recognised boundaries west of the Green Line.


The problem with this for Foreign Minister Ashkenazi and Israel is that the ban on the ICC acquiring jurisdiction does not extend to the territories occupied illegally by Israel since 1967, which the international community stubbornly refuses to recognise as Israeli territory.


And, unfortunately for Israel, the Palestinians have managed to get the ICC to accept jurisdiction over these territories and made it possible for Israeli actions there to be investigated and prosecuted by the Court.  The Palestinian Authority made its first attempt to do this in January 2009, with the objective of having Israelis prosecuted for actions against Gaza during Operation Cast Lead.  It took the ICC Prosecutor over three years (until April 2012) to decide that the Court couldn’t accept the jurisdiction offered because Palestine wasn’t a state. 


Prospects improved for ICC involvement when in November 2012 Palestine was granted observer rights at the UN as a "non-member” state.  This was achieved when the General Assembly passed resolution A/RES/67/19 by 138 votes to 9.  It reaffirmed “the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967” and accorded Palestine the status of “non-member” state at the UN.


On 2 January 2015, Palestine deposited with the UN Secretary General, Ban Ki-moon, documents necessary for Palestine to become a party to the Rome Statute and accept ICC jurisdiction.  On 6 January 2015, Ban Ki-moon, announced that the Rome Statute “will enter into force for the State of Palestine on April 1, 2015”, making Palestine the 123rd state party to the Rome Statute.



Population transfer is a war crime


Responding to the ICC’s decision, Prime Minister Netanyahu accused it of “outrageously claim[ing] that when Jews live in our homeland, this is a war crime”. 


There, he is referring to the Jews living in the settlements that successive Israeli governments have built in the occupied territories.  As the Prime Minister well knows, this colonisation of occupied territory is contrary to international law, in particular to Article 8(2)(b)(viii) of the Rome Statute, which defines


the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies”


to be a war crime. 


It was no surprise then that after completing her preliminary examination in December 2019, the Prosecutor, Fatou Bensouda, concluded that:


“There is a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014.” (see here, paragraphs 96).


In other words, there is a prima facie case that individuals responsible for Israel’s never ending settlement building project in the occupied territories are guilty of war crimes.  Since this project is authorised at the highest level in the Israeli state, senior political figures may be guilty.   And it may be that Americans and others who have provided funds for the project could be prosecuted for aiding and abetting war crimes. 



Other possible war crimes identified by the Prosecutor


In her preliminary examination, Fatou Bensouda identified other possible war crimes including (see here, paragraphs 94-100) :-


With respect to Operation Protective Edge, Israel’s military action against Gaza in July/August 2014, she concluded:


There is a reasonable basis to believe that members of the Israel Defense Forces committed the war crimes of:

·       intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focussed on

·       wilful killing and wilfully causing serious injury to body or health


On actions by Hamas and other Palestinian armed groups, she concluded:


There is a reasonable basis to believe that members of Hamas and Palestinian armed groups committed the war crimes of:

·       intentionally directing attacks against civilians and civilian objects

·       using protected persons as shields


On the Israeli killing of Palestinian demonstrators at the Gaza border fence since March 2018, she concluded:


The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others.


Finally, Fatou Bensouda made it clear that the possible crimes she had identified in her preliminary examination are “illustrative only” and that the full investigation “will not be limited only to the specific crimes that informed her assessment at the preliminary examination stage”.  She added: “The situation in Palestine is one in which crimes allegedly continue to be committed”.



David Morrison

10 February 2021