In the wake of the ‘Israeli Cast Lead Aggressive Operation’ on the Gaza Strip that began in Dec. 2008 and ended in Jan. 2009, the International Criminal Court – ICC’s Prosecutor, Luis Moreno-Ocampo examined over about the three years, the Palestinian’s demand to open an investigation concerning war crimes committed by Israel in Palestine. In April 2012, Ocampo ruled that under the Rome Statute ‘the source of jurisdiction over the Court’s events’, merely States can have such jurisdiction.
The 3-year passed without noticing that those bets on negotiations with Israel in the first term of former US President Barack Obama were still there, and it didn’t look nice to counter his Administration despite the fact that it opposed the Palestinians joining the Rome Statue, consequently denying their right to seek the court’s protection of the occupation’s crimes and violations.
Thus, indirect channel for negotiations was established between Israel and the Palestinians, while debate among the Palestinian leadership to bypass the American’s obstacles rose to join the court. As the Palestinians noticed that the negotiation channels were absurd, they headed to the United Nations, and in Nov. 2012, the UNs’ General Assembly recognized Palestine as an observer-State under resolution n. 67/19.
The resolution was a step forward to signing the Rome Statute, and thus joining the member States that already signed it. However, the American knot on the one hand, and the bet on the negotiations that were led by John Kerry, was behind the slowdown in joining the Club of the member States that signed the Rome Statute.
As for the ‘Israeli Protective Edge Operation’ in 2014 against Gaza that continued for more than 50 days, during which Israel committed brutal crimes, and killed 2,322 Palestinians, including 578 children, 489 women, and 102 elderly people, and wounded around 11,000 of whom 3303 are permanently disabled and 2,000 orphans.
Though, bets on the negotiation’s track have totally become absurd. Under these developments and events, Palestine went to the International Criminal Court – ICC and submitted a declaration on Jan. 1st, 2015 in accordance with Article (12) item (3), under which the Fatou Bensouda, the International Criminal Court’s chief prosecutor was granted the right to consider the crimes committed on the State of Palestine since June 13th, 2014, then referred the case in the Occupied Palestinian Territory on May 22nd, 2018, according to Articles (13) item (A) and 14 of the Rome Statute to the Prosecutor to speed up the opening of the investigation, especially, as Palestine has joined the Rome Statute that established the court in Dec. 2014, and entered into effect as of April 2015.
Accordingly, at the end of 2019, the Court’s Prosecutor announced that the preliminary study on Palestine ended, and she confirmed that all the legal conditions for opening the investigation had been met and that she requested the Pre-Trial Chamber I to issue a resolution to decide on its territorial jurisdiction in Palestine in a way for holding the rulers of Israel accountable for their criminal behavior in the territories of the State of Palestine under occupation, as defined by the United Nations General Assembly Resolution no. 67/19 of 2012. At that time, Bensouda said, she respectfully requested the Pre-Trial Chamber I to confirm that the territories over which the court may exercise its jurisdiction under Article 12 ‘2’ (A) includes the West Bank, including East Jerusalem and the Gaza Strip, which means that she clearly requested the Pre-Trial Chamber I to issue a ruling on the geographical jurisdiction of the Palestinian Territory.
Bensouda’s stance was well-prepared as she is convinced that Israel is committing war crimes, and therefore she asked for the legal opinion, and knew how to protect this file by a judicial resolution. Judges of the Pre-Trial Chamber I issued a decision to the Court on the Bensouda’s request regarding territorial jurisdiction over Palestine, and decided by majority under Article (53) item (1) that the territorial jurisdiction of the court in Palestine includes the lands occupied by Israel in 1967 i.e. Gaza Strip and the West Bank, including East Jerusale, considering that Palestine is a member at the Rome Statute of the International Criminal Court.
Thus, it took more than 5-year to take the decision, during which Israel committed more crimes, and violated the international norms and laws against the Palestinians. Consequently, Bensouda, announced that she would approve the opening of an investigation regarding the situation in Palestine after the Protective Edge Operation. In their decision, Judges of the Pre-Trial Chamber I overlooked the different classifications of the Palestinian territories ‘A – B – C’, and emphasized that the entire Palestinian Territory are still under the Israeli military occupation in accordance to the international law. Consequently, the ICC has the full powers to initiate investigations into crimes committed by the Israelis against the Palestinians, which are as follows: ‘War crimes, crimes against humanity, genocide and crimes of aggression’ as stipulated in Article (29) of Rome Statute of 1998.
The Israeli hysterical reaction on that was very wide, as Netanyahu and other occupation leaders said, “The Israeli army is the most moral army in the world. The State of Israel knows how to protect the army.
We stand behind our officers and soldiers. This is anti-Semitism. Israel is under attack. The Prosecutor is motivated by hatred of Israel. This is a hypocritical decision that has no legal basis.” This was accompanied by American rejection of the decision and demanded to nullify the Court’s power on that. Moreover, the Israeli and American leaders described the resolution as ‘anti-Semitic”.
It is known that former US President Donald Trump tried to pressure the ICC through the signing of a decree in June 2020, to impose penalties on senior officials of the court and prevent them and their family members from entering the USA in an attempt to abort the Pre-Trial Chamber I’s resolution before seeing the light. So, it is clear that Israel and the American administration will continue to contempt the court, reject its powers, and refrain from cooperating with it. This won’t help them, as the potential harm behind such behavior won’t merely be legal, but also political as the scope of the judiciary expands to reach a long list of war criminals, and this in itself is ‘internationalizing the conflict’ through the Hague Court, and then to the United Nations and international forums. Therefore, the reckoning won’t stop at the official legal persons, military and civilian, but will extend to touch leaders of the settlements and Jewish terror organizations.
When Commander of the Central Region, General Tamir meets with the ‘hills Youth’ the inhabitants of the settlement outpost for understanding and calm down, this reflects the extent of the concern that the army has over those who used to provide protection for their crimes. He knows that he is negotiating with terrorists who are no longer be young men or boys, but will be adults, and they held responsible for their crimes, and participation in unjustified orgies and threw stones at Palestinians, they are accused of murdering and threatening the lives of Palestinians at the main roads, homes and farms due to their extremist background.
Thus, the Palestinians file lawsuit to the ICC on all that. It wide known that the Israeli Army can control, but plays a mediator role between the settlers and the government, and between them and the law. The army is the only authority in the occupied territories. It has chosen under government directives and orders to work behind the scene to protect the Hilltops Youth, the rabbis, and the Yesha Settlements Council. The ICC is the last resort for the victims because it is the only court in the world that can acknowledge and carry out punishment, especially as its rule of law is at the level of the rule of law in any country.
Israel, the occupying power, is aware that Palestine has submitted 3 files to the court related to war crimes that are the ‘Israeli Colonial Regime’, the ‘Aggression on Gaza, the siege and starvation of its inhabitants’, and the Prisoners File, including the use of detention as a means of suppressing the civilian population in a systematic way. Israel also know that the next step after the issuance of the Pre-Trial Chamber I’s resolution is to launch a formal criminal investigation into war crimes, where scores of Israeli political and military officials and even Israeli soldiers will be on the list of prosecution.
Lastly but not the least, it should be noted that Israeli President, Reuven Rivlin, accompanied by IOF Chief of Staff, Aviv Kochavi, began a tour that includes Federal Germany, Austria and France in an attempt to hinder the investigation that ICC decided to start in the territories of the State of Palestine under occupation.
This tour reflects the extent of the concern experienced by the ruling circles in Israel about the resolution, and they feel that the policy of impunity, accountability and punishment is nearing its end, which dictates that the Prosecutor of the Court, Fatou Bensouda, continue to act responsibly and make the decision to start a judicial investigation into Israeli war crimes based on the files submitted to the court, and not to transfer these files to its successor, Karim Khan, who will assume the position of the court’s public prosecutor next June.
Tayseer Khaled is PLO Executive Committee Member DFLP Political Bureau Member