International Criminal Court investigation in Palestine

In 2009, the Palestine Authority lodged an ad hoc declaration to the ICC accepting the jurisdiction of the Court for crimes committed since 2002. Almost three years later, the Office of the Prosecutor decided not to open an investigation on the situation in Palestine until the Assembly of States parties of the Court or the United Nations gave clarification on the statehood issue of Palestine.[2]

On 29 November 2012,UN General Assembly resolution 67/19 passed, upgrading Palestine to "non-member observer state" status in the United Nations.[3] The change in status was described as "de facto recognition of the sovereign state of Palestine".[4]

In a 2014 opinion piece, the Prosecutor said that, as a result of this new status, Palestine could now join the Rome Statute.[5] A preliminary investigation had been ongoing since 2015.[6] Israel is not a member of ICC, but the State of Palestine was allowed to join in 2015.[1][7] Israel has argued that the court has no jurisdiction because Palestine is not a sovereign state, as Israeli attorney general Avichai Mandelblit argued in a brief released hours before Bensouda's announcement.[7] On three previous occasions, Bensouda has refused to open investigations against Israel related to the 2010 Gaza flotilla raid.[8]

According to Bensouda, the criteria for a full investigation had all been met, but jurisdiction had not been established.[6] Bensouda stated, "I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip".[7]

According to Bensouda's report, the Israeli judicial system already makes provision for punishing those accused of war crimes—meaning that the ICC may not have jurisdiction over alleged Israeli violations; Bensouda wrote that she will have to keep reviewing the “scope and genuineness of relevant domestic proceedings” that remain ongoing. Bensouda also found "a reasonable basis to believe that members of Hamas and Palestinian armed groups" are guilty of war crimes, but these groups have no mechanism for punishing such violations.[1]

Israel is accused of illegally establishing West Bank settlements and violating the laws of war during the 2014 Gaza War, including claims of targeting Red Cross installations. Armed Palestinian organizations, including Hamas, are accused of deliberately attacking Israeli civilians and using Palestinians as human shields.[6][7][1]

Israeli prime minister Benjamin Netanyahu condemned the investigation as "a black day for truth and justice"[7] and "pure antisemitism", while Israeli newspaper Yedioth Ahronoth denounced "The Hague's hypocrisy" in a headline.[1] In an interview with Times of Israel Bensouda described the charge of antisemitism as "a particularly regrettable accusation that is without merit" and emphasized that the court strives to be fair and impartial.[9]

United States Secretary of State Mike Pompeo stated, "We firmly oppose this and any other action that seeks to target Israel unfairly."[6] Australia argued that the issues should be resolved by negotiation, while Germany stated that it trusts the court and wants to avoid politicising the case.[10] Hungary announced that it agrees with Israel's arguments about jurisdiction.[11]

The Palestinian Authority issued a statement declaring that "Palestine welcomes this step as a long overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination".[6] On 16 March 2020, following the submission of amicus curiae briefs, [12] Bensouda requested another month to weigh the question of Palestinian statehood and jurisdiction over the West Bank, Gaza and East Jerusalem.[13] About 50 countries and NGOs have filed such briefs for consideration and on April 29, 2020, over 180 Palestinian and international organizations, and individuals filed an open letter in support of Palestine.[14][15]

On 30 April, 2020, Bensouda stood by her initial finding, writing "The Prosecution has carefully considered the observations of the participants and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory,"[16][17]

• Adem, Seada Hussein (2019). Palestine and the International Criminal Court. Springer. ISBN 978-94-6265-291-0.CS1 maint: ref=harv (link)

• ICC - Preliminary examination State of Palestine

• B'tselem reaction to Mandelblit position paper