It looks like the ICC will continue with investigating Israeli actions

Friday, December 20, 2019

It looks like the ICC will continue with investigating Israeli actions - but also Palestinian

Today, ICC Prosecutor Fatou Bensouda announced:

...Following a thorough, independent and objective assessment of all reliable information available to my Office, the preliminary examination into the Situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met.

I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute. In brief, I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip ("Gaza") (for specifics, see paras. 94-96); (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.

Israel released its own objections to why the ICC doesn't have jurisdiction, also today. I'm not sure which statement was released first. The ICC prosecutor did say that she wants to further clarify specifically whether the ICC has jurisdiction over the territories:

However, given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, I deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.

Earlier today, I therefore requested from Pre-Trial Chamber I a jurisdictional ruling on the scope of the territorial jurisdiction of the International Criminal Court ("ICC" or the "Court") under article 12(2)(a) of the Rome Statute in Palestine.

Specifically, I have sought confirmation that the "territory" over which the Court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza. Such determination is made strictly for the purposes of determining the Court's ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute.

Looking at the specific charges that the prosecutor believes are admissible as war crimes, besides the usual charges against Israel we see that there are quite a few against "Palestine as well:"

94. On the basis of the available information, there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza. In particular, there is a reasonable basis to believe that members of the Israel Defense Forces (“IDF”) committed the war crimes of: intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focussed on (article 8(2)(b)(iv)); wilful killing and wilfully causing serious injury to body or health (articles 8(2)(a)(i) and 8(2)(a)(iii), or article 8(2)(c)(i)); and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions (article 8(2)(b)(xxiv), or 8(2)(e)(ii)). In addition, there is a reasonable basis to believe that members of Hamas and Palestinian armed groups (“PAGs”) committed the war crimes of: intentionally directing attacks against civilians and civilian objects (articles 8(2)(b)(i)-(ii), or 8(2)(e)(i)); using protected persons as shields (article 8(2)(b)(xxiii)); wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv)) and wilful killing (articles 8(2)(a)(i), or 8(2)(c)(i)); and torture or inhuman treatment (article 8(2)(a)(ii), or 8(2)(c)(i)) and/or outrages upon personal dignity (articles 8(2)(b)(xxi), or 8(2)(c)(ii)). With respect to the admissibility of potential cases concerning crimes allegedly committed by members of the IDF, the Office notes that due to limited accessible information in relation to proceedings that have been undertaken and the existence of pending proceedings in relation to other allegations, the Office’s admissibility assessment in terms of the scope and genuineness of relevant domestic proceedings remains ongoing at this stage and will need to be kept under review in the context of an investigation. However, the Prosecution has concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs would currently be admissible pursuant to article 17(1)(a)-(d) of the Statute.

(Paragraphs 95 and 96 talk about prosecuting Israel for "transferring settlers" and for defending itself from Gaza border riots.)

The prosecutor seems to be saying that while she still needs to clarify the ICC's jurisdiction on filing war crimes charges against Israel, she does not need that for determining whether Hamas is guilty of war crimes.

Of course, Israel is not a party to the ICC because parts of the Rome Statute were written specifically against Israel. Still, it is bad for Israel to be subject to such an investigation.

But Hamas cannot celebrate this either.

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