International Criminal Court opens investigation into Palestinian situation as U.S. kicks against move

The International Criminal Court (ICC) has opened an investigation into the “Situation in Palestine,” Prosecutor Fatou Bensouda announced earlier today. The investigation “will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation since 13 June 2014”; this is the date referenced in the case’s referral to the Office of the Prosecutor. It is not yet clear how this investigation will be carried out.

The Office of the Prosecutor is charged with investigating and prosecuting individuals “most responsible for” the crimes concerned. According to Ms. Bensouda, the Office is “obligated to act” when “a State Party has referred a situation” and “reasonable basis exists to commence an investigation”. In fact, there are three entities that can “trigger” the ICC’s jurisdiction: any State Party to the Rome Statute, the UN Security Council (UNSC), and the Prosecutor after authorization from the judges. In some cases, States, “may accept jurisdiction on an ad hoc basis” under article 12(3) of the Rome Statute.

Ms. Bensouda said that after “a painstaking preliminary examination…that lasted close to five years,” her Office requested, in January 2020, that the judges clarify “the territorial scope of the Court’s jurisdiction in the Situation in Palestine”. Weeks later, the judges determined that the Court had jurisdiction, and that it “extend[ed] to Gaza and the West Bank, including East Jerusalem,” implying that it considered the Palestinian Authority as party to the Rome Statute.

The judges, or “Chamber”, didn’t make any decision or reference to alleged criminal activity, only that the Court had jurisdiction to launch an investigation. Previously, Ms. Bensouda had declined to open an investigation in the Mavi Marmara case – which occurred in 2010 – that involved “Israeli Defense Forces” after determining there wasn’t “a reasonable basis to proceed”; unlike now where after a years-long review, she determined there was sufficient basis.

The United States vehemently opposed the ICC’s decision to open an investigation into the Palestinian situation. It argues the ICC has no jurisdiction since Israel “has not consented to the Court’s jurisdiction.” In its view, the Palestinian Authority doesn’t “qualify as a sovereign state” and therefore has no standing in the ICC. Neither the U.S. nor Israel is a member of the ICC since neither has ratified the Rome Statute. Regarding the February 2020 Chamber ruling, the U.S. argues the Chamber lacked sufficient basis to make such a decision. 

The U.S. also claimed that “unilateral judicial actions that exacerbate tensions” would undermine efforts at securing peace “for the people of the Middle East” and achieving a two-state solution between Israel and the Palestinian Authority. It restated its commitment to Israeli security.

Unlike the previous U.S. administration, the Biden administration supports a two-state solution in part because it views a separate Palestinian state as crucial to Israeli sovereignty and security. It also recognizes Palestinians’ right to their own state.

“Our central concern must be for the victims of crimes, both Palestinian and Israeli, arising from the long cycle of violence that has caused deep suffering and despair on all sides….The pursuit of peace and justice should be seen as mutually reinforcing imperatives,” said Ms. Bensouda, acknowledging her mandate as well as the security situation in the region.

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