JERUSALEM (PA) – The International Criminal Court said on Friday that its jurisdiction extended to Israeli-occupied territories in the 1967 Middle East war, paving the way for its chief prosecutor to open an investigation into war crimes in Israeli military actions.
The decision was welcomed by Palestinians and condemned by the Israeli prime minister, who accused the court of “legal persecution”.
The ICC’s chief prosecutor, Fatou Bensouda, said in 2019 that there was a “reasonable basis” to open an investigation into war crimes in Israeli military actions in the Gaza Strip, as well as in the Israeli settlement activity in the occupied West Bank. But she asked the court to determine whether she had territorial jurisdiction before proceeding.
The Palestinians, who joined the court in 2015, pressed an investigation. Israel, which is not a member of the ICC, said the court has no jurisdiction because the Palestinians have not stood and that the borders of any future state will be decided in peace negotiations.
The Palestinians asked the court to look into Israeli actions during its 2014 war against Palestinian militants in the Gaza Strip, as well as the construction of settlements by Israel in the occupied West Bank and the annexation of East Jerusalem.
The international community widely believes that settlements are illegal under international law, but has done little to pressure Israel to freeze or reverse their growth.
The international tribunal is intended to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes.
The Israeli military has mechanisms in place to investigate the alleged iniquities of its troops, and despite criticism that the system is inadequate, experts say it has a good chance of stopping the ICC’s investigation into its wartime practices.
However, when it comes to settlements, experts say it will be difficult for Israel to defend its actions. International law prohibits the transfer of a civilian population to the occupied territory.
Israel captured the West Bank, Gaza and East Jerusalem in the 1967 war, territories the Palestinians want for their future state. About 700,000 Israelis live in settlements in the West Bank and East Jerusalem. Palestinians and much of the international community see settlements as illegal and an obstacle to peace.
Israel says East Jerusalem is an indivisible part of its capital and that the West Bank is a “disputed” territory whose fate should be resolved in negotiations.
While the court would have difficulty pursuing Israelis, it could issue arrest warrants that would make it difficult for Israeli officials to travel abroad. A case in the ICC would also be deeply embarrassing for the government. Israeli Prime Minister Benjamin Netanyahu led the 2014 Gaza war, while Israeli Defense Minister Benny Gantz was the military chief of staff at the time.
Netanyahu said the decision “proves once again that the court is a political body and not a legal institution.”
He said the decision “affected the right of democratic countries to defend themselves against terror” and added: “We will continue to use all means to protect our citizens and soldiers from legal persecution.”
Nabil Shaath, a senior aide to Palestinian President Mahmoud Abbas, welcomed the decision and said he was proving that Palestinians were right to go to the ICC. “This is good news, and the next step is to launch an official investigation into Israeli crimes against our people,” he said.
The ICC could also investigate crimes committed by Palestinian militants. Bensouda said his investigation would look into the actions of Hamas, which fired non-discriminatory missiles at Israel during the 2014 war.
In Washington, US State Department spokesman Ned Price told reporters that the Biden administration was “taking a close look” at the decision.
“However, we have serious concerns about the ICC’s attempts to exercise jurisdiction over Israeli personnel,” Price said. “I have always taken the position that the jurisdiction of the court should be reserved for those who agree or are guided by the UN Security Council.”
The decision, detailed in a 60-page legal brief, was published late Friday after Israel was shut down for the weekly Jewish Sabbath.
Human Rights Watch welcomed the decision, saying it “finally gives victims of serious crime a real hope for justice after half a century of impunity.”
“It is time for Israeli and Palestinian perpetrators of the worst abuses – whether war crimes committed during hostilities or the expansion of illegal settlements – to face justice,” said Balkees Jarrah, the group’s New York-based international justice director.
The three-judge preliminary chamber ruled that Palestine is a state party to Rome’s Statute establishing the ICC. With a judge disagreeing, it ruled that Palestine qualifies as a state in the territory where the “conduct in question” took place and that the court’s jurisdiction extends to East Jerusalem, the West Bank and Gaza.
Last year, the Trump administration imposed sanctions on ICC officials after earlier revoking Bensouda’s entry visa in response to court attempts to prosecute U.S. troops for actions in Afghanistan.
The United States, like Israel, does not recognize the jurisdiction of the court. At the time, Secretary of State Mike Pompeo said the steps were intended as remuneration for investigations into the United States and its allies, a reference to Israel.
The Biden administration has said it will review these sanctions.
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Associated Press writers Joseph Krauss of Jerusalem and Matthew Lee of Washington contributed to this report.