The Israeli prime minister accused the International Criminal Court of serving as “a political tool to delegitimize the State of Israel” and “completely ignoring legal arguments.”
Edited By: Fern Sidman
Late last Friday, the International Criminal Court’s chief prosecutor announced that a “basis” exists to probe whether Israel committed crimes during the 2014 war with Gaza, known in Israel as “Operation Protective Edge,” when Hamas launched rockets into the Jewish state and Israel responded defensively.
Fatou Bensouda stated that “following a thorough, independent and objective assessment of all reliable information available to my Office,” she has concluded that a preliminary examination was warranted “into the situation in Palestine” which started in early 2015. Her office found that there is a “reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza.”
Friday’s announcement follows a five-year preliminary examination, launched at a Palestinian request. A decision to launch an investigation of this kind could lead to international arrest warrants against Israeli officials and potentially U.S. sanctions against the international court, according to an Axios.com report.
JNS reported that while Israel is not a member of the ICC, nor does it recognize the court’s jurisdiction, the Palestinians are members. The latter requested the investigation five years ago.
“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,” said Bensouda, according to the JNS report. Israeli leadership blasted the announcement.
The Times of Israel reported that Bensouda acknowledged that The Hague may not have the jurisdiction to legally handle matters pertaining to Israel/Palestine. She subsequently asked for a ruling by three judges who are currently on the ICC in order that they may make a determination of the scope of the court’s territorial jurisdiction.
While Bensouda countenanced the “unique and highly contested legal and factual issues” regarding the question of Palestinian statehood, she requested that the ICC’s so-called pretrial chamber “rule expeditiously” on where, if anywhere at all, the court has jurisdiction, as was reported by the Times of Israel.
“The resolution of this foundational issue is necessary now for several reasons,” she wrote, as was reported by the TOI.
“First, it will allow judicial consideration of an essential question before embarking on a course of action which might be contentious… Second, an early ruling will facilitate the practical conduct of the Prosecutor’s investigation by both demarcating the proper scope of her duties and powers with respect to the situation and preempting a potential dispute regarding the legality of her requests for cooperation.”
TOI reported that the prosecutor herself believes “Palestine,” which acceded to the Rome Statute, the court’s foundational document, in early 2015, is enough of a state for the purposes of transferring criminal jurisdiction over its territory to the court. Thusly, the ICC will have within its purview the ability to investigate crimes that were allegedly perpetrated anywhere in the liberated territories of Judea and Samaria including East Jerusalem, and the Gaza Strip, according to her view.
Bensouda compiled a 112-page report which was distributed on Friday, as was reported by TOI. In it the ICC prosecutor said that she is of the belief that the Israel Defense Forces (IDF), along with the Hamas terrorist organization that doubles as an Iranian proxy that rules with an iron hand in Gaza and other “Palestinian armed groups” all played a role in committing war crimes.
First, in the framework of 2014’s Operation Protective Edge, the 50-day war waged against Gaza terrorists, Israel is accused of:
- intentionally launching at least three disproportionate attacks
- willful killing and willfully causing serious injuries
- intentionally attacking Red Cross personnel or institutions.
Hamas and other armed groups are accused of:
- intentionally attacking Israeli civilians
- using Palestinian civilians as human shields
- willfully depriving civilians of the rights to a fair trial
- willful killing
- torture or inhuman treatment
- “outrages upon personal dignity,” which refers to humiliating and degrading treatment.
Ynet News reported on Monday that Bensouda, 58, was born in the African country of Gambia. In 1987 was appointed as state counsel and deputy director of public prosecutions by former Gambian Prime Minister Dawda Jawara.
In 1994, a military coup drove Jawara into exile and a military junior officer Yayah Jammeh took control of the country. The new leader was nothing short of a despotic ruler, as he was living a lavish and decadent lifestyle, crushing opposition, suppressing the country’s LGBT community, and effectively eliminating women’s rights, according to the Ynet news report.
Ynet reported that Jammeh, nevertheless, chose Bensouda as his solicitor general and legal adviser in 1994, a position which she held for two years. In August 1998 she became Gambia’s justice minister, before being dismissed in March 2000.
Her time under Jammeh’s rule has earned Bensouda a fair share of criticism, with many accusing her of turning a blind eye to the atrocities committed by the Gambian dictator, as was reported by Ynet. Additionally, there are those who claim that Bensouda’s work under Jammeh should not have allowed her to be considered for such a prestigious position in the Hague.
In terms of the discussion of Operation Protective Edge, TOI reported that Bensouda noted that the IDF has launched investigations into alleged wrongdoing by its soldiers and “the existence of pending proceedings in relation to other allegations.”
Given that the ICC can only open proceedings if a country’s government fails to properly investigate such allegations, Bensouda wrote that she will have to keep reviewing the “scope and genuineness of relevant domestic proceedings” that remain ongoing, as was reported by TOI.
She did state that the crimes allegedly committed by Palestinian groups in Gaza are not being investigated and are thus fair game for the ICC, according to the TOI report.
Second, Israel may have committed war crimes by promoting the settlement movement. TOI reported that according to paragraph 8(2)(b)(viii) of the Rome Statute, the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is considered a war crime.
JNS reported that Israeli Prime Minister Benjamin Netanyahu said the International Criminal Court had been transformed into a political tool to delegitimize the State of Israel. “The prosecutor has completely ignored the legal arguments we presented to her.”
Israel’s Attorney General Avichai Mandelblit said in a legal opinion, “By approaching the ICC, the Palestinians are seeking to breach the framework agreed to by the parties and to push the court to determine political issues that should be resolved by negotiations and not by criminal proceedings.”
According to the JNS report, Israeli Ambassador to the United Nations Danny Danon said “the prosecutor’s decision in the International Criminal Court reflects the anti-Israeli tendency rooted in The Hague; the institution is becoming nothing more than another partisan political tool to wield against the Jewish state.”
He continued, “This decision exposes the ICC’s desire to follow political considerations, not legal ones; Israel has legal and historical rights in the Land of Israel, which no court can change. This only serves to reward the Palestinian campaign to curry international favor instead of negotiating directly with Israel. It will not advance the cause of peace, but instead undermines the very institutions that are designed to promote international peace and security.”
“Clearly, Bensouda cannot tell the difference between war crimes and Palestinian propaganda,” said B’nai B’rith in a statement. “It is the Palestinians who have for decades subjected Israel to the high crimes of unrelenting, indiscriminate terrorism . . . and an open campaign of national extermination. By contrast, despite singularly difficult circumstances, Israel, the Middle East’s only actual democracy, has carried out its pursuit of security with a degree of restraint and care rarely if ever seen in the history of military conflict.”
Ha’Aretz reported that Likud MK Ayelet Shaked tweeted immediately after the release of Bensouda’s announcement on Friday that “the decision of the prosecutor of the ICC in The Hague to open an investigation against Israel is a political decision, hypocritical and expected, regrettably. She has no authority to do so and Israel must battle it with all the means at its disposal. Shabbat Shalom!”
Israeli Foreign Minister Yisrael Katz tweeted that it cannot be “that the prosecutor is taking on herself and the court judicial authority against the law.”
“It is unacceptable for the Prosecutor to bend international law in order to fit it to Palestinian propaganda and political agenda,” tweeted Katz, as was reported by Ha’Aretz. As mentioned, she did not take the authority for herself but sent the matter to the court for clarification.
Pastor John Hagee, the founder of Christian United for Israel (CUFI), released a statement on Monday, calling the International Criminal Court’s (ICC) decision to launch an investigation of Israel “absurd.”
“The Court is preparing to launch an investigation at the behest of a state that does not exist, into a state over which they have no jurisdiction,” Hagee said in a statement.
“If the ICC applies one set of rules to the rest of the world and one set to the Jewish state, that is — plain and simple — rank antisemitism.” For years, the Palestinians have undermined the foundations of international institutions in an effort to demonize Israel,” he continued.
“This exercise by the ICC will achieve the same result and serve only to show that the Court is amenable to applying a double standard to the Jewish state,” Hagee added.
“The Court has no jurisdiction over Israel or the disputed territories,” added Sandra Parker, Chairwoman of the CUFI Action Fund. “Where does it end? Who is next? Are we to expect that one day American Special Forces will be hauled in before the court for killing terrorists on foreign soil?,” she further mentioned in statements condemning the ICC.
The Times of Israel reported that the headline of this past Sunday’s Yedioth Ahronoth, “The Hague’s hypocrisy,” in larger than normal font, arguing that the ICC was targeting Israel but does pursue the launching of probes of other purported perpetrators of war crimes.
