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ICC Opens ‘War Crimes’ Investigation in West Bank And Gaza

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A Palestinian child gestures while holding a Palestinian flag at a protest against Israel in the Gaza Strip (2 July 2020)
The ICC ruled last month that it could exercise its criminal jurisdiction over the Palestinian territories

The International Criminal Court’s chief prosecutor has opened a formal investigation into alleged war crimes in the Palestinian territories.

Fatou Bensouda said the probe would cover events in the Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 2014.

Last month, the Hague-based court ruled that it could exercise its criminal jurisdiction over the territories.

Israel rejected Ms Bensouda’s decision, while Palestinian officials praised it.

The ICC has the authority to prosecute those accused of genocide, crimes against humanity and war crimes on the territory of states party to the Rome Statute, its founding treaty.

Israel has never ratified the Rome Statute, but the court ruled that it had jurisdiction because the United Nations secretary general accepted the Palestinians’ accession to the treaty in 2015.

Israel occupied the West Bank, Gaza and East Jerusalem in the 1967 Middle East war. Palestinians claim the territories for a future independent state.

What prompted the prosecutor’s decision?

In a statement issued on Wednesday, Ms Bensouda explained that her office was obliged to act “where a state party has referred a situation” to it and “it is determined that a reasonable basis exists to commence an investigation”.

Ms Bensouda said she had carried out a “painstaking preliminary examination” that lasted close to five years and promised that the investigation would be conducted independently, impartially and objectively, without fear or favour.

Public Prosecutor Fatou Bensouda attends a trial in the Hague, the Netherlands
Fatou Bensouda said the “central concern must be for the victims of crimes”

“We have no agenda other than to meet our statutory duties under the Rome Statute with professional integrity,” she said, noting that she had declined to investigate the 2010 killing by Israeli troops of 10 Turkish activists on the Gaza-bound ship Mavi Marmara.

“In the current situation, however, there is a reasonable basis to proceed and there are admissible potential cases,” she added.

Ms Bensouda also stressed that the “central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence and insecurity that has caused deep suffering and despair on all sides”.

What has been the reaction?

Israeli Prime Minister Benjamin Netanyahu said the ICC’s decision was “the essence of anti-Semitism and the essence of hypocrisy.”

“It found that our brave and moral soldiers, who are fighting the most brutal terrorists on earth, are, of all people, war criminals.”

“The court, which was established to prevent a recurrence of the horrors perpetrated by the Nazis against the Jewish people, is now turning against the state of the Jewish people,” he asserted.

An Israeli police office removes the remains of a rocket fired from Gaza at Gan Yavne, Israel (22 August 2014)
Ms Bensouda has said Palestinian militants could face prosecution for intentionally attacking Israeli civilians

Palestinian Authority Foreign Minister Riyad al-Maliki said: “The crimes committed by the leaders of the Israeli occupation against the Palestinian people – which are ongoing, systematic and widespread – make this investigation necessary and urgent.”

The militant Hamas movement, which controls Gaza, welcomed the decision as “step forward on the path of achieving justice”, while also defending its actions as “legitimate resistance”.

Campaign group Human Rights Watch said the opening of an investigation would move “Israeli and Palestinian victims of serious crimes one step closer to obtaining a measure of justice that has for too long eluded them”.

What alleged crimes are being investigated?

Ms Bensouda’s preliminary examination is believed to have focused on issues such as Israeli military operations in Gaza and the construction of Jewish settlements in the West Bank – which most of the international community consider illegal under international law, though Israel disputes this.

Palestinians sit on the remains of their destroyed homes in Beit Hanoun, Gaza (5 August 2014)
The ICC investigation will include the 50-day conflict between Israel and militants in Gaza in 2014

That is one month before a war erupted between Israel and Palestinian militants in Gaza. In the fighting, 2,251 Palestinians, including 1,462 civilians, were killed while on the Israeli side 67 soldiers and six civilians were killed.

Following the preliminary examination, Ms Bensouda said there was a reasonable basis to believe that war crimes were committed in the context of the war, and that charges could be filed against Israel Defense Forces (IDF) personnel and members of Hamas and other Palestinian armed groups.

The prosecutor also concluded that there was a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, members of the Israeli authorities had committed war crimes.

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