The prosecutor, Fatou Bensouda, will be able to investigate crimes committed in the Palestinian territories occupied by Israel since 1967, ruled the judges of the International Criminal Court (ICC) on Friday (February 5th). At the end of 2019, she announced the imminence of an investigation, but wondered about her territorial jurisdiction and referred the question to the judges. One way, too, to share the weight of one of the Court’s most sensitive issues. Legally, the ICC can therefore now prosecute perpetrators of crimes committed in the West Bank, including Gaza and East Jerusalem.
This decision has been described by Prime Minister Benjamin Netanyahu as“Judicial harassment” “The tribunal has once again proved that it is a political body and not a judicial institution”, he added. Following his re-election in May 2020, the Israeli prime minister placed the Court’s investigation as a “Strategic threat” for Israel.
Like Washington, Tel Aviv has not joined the Court, created by treaty in 1998, and therefore believes that it “Has no jurisdiction over Israel”. This is what the Attorney General Avichai Mandelblit had defended, in a legal opinion given to the prosecutor, ruling that “Any Palestinian action before the Court is invalid” and that Palestine not being a State, it could not therefore seize it.
In spring 2020, around 40 professors, lawyers, diplomats and NGOs had provided opinions to the Court. Some worried that she might make decisions about the future. “By ruling on the territorial extent of its jurisdiction, the Court does not rule on a frontier dispute in international law nor does it prejudge the question of possible future borders”, write the judges, assuring that “The creation of a new state in accordance with international law (…) is a political process of great complexity far removed from the mission of this Court ”.
Recognized in 2012 as an Observer State by the United Nations General Assembly, the Palestinian Authority was able, on this basis, to join the Court in early 2015, following the failure of negotiations aimed at obtaining the United Nations a timetable for the Israeli withdrawal from the occupied West Bank territories. President Mahmoud Abbas had previously obtained the agreement of all Palestinian factions.
Then in May 2018, the Palestinian Minister of Foreign Affairs, Riad Al-Maliki, seized the prosecutor on war crimes and crimes against humanity including apartheid, committed “By the government of Israel or its agents”. At the time, Israeli soldiers fired live ammunition at protesters in Gaza, causing deaths and injuries.
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