Chief ICC Prosecutor Asserts Power to Investigate War Crimes in OPT

The Chief Prosecutor for the International Criminal Court (ICC), Fatou Bensouda, reiterated on Thursday, April 30, her position that Palestine is a state for the purposes of transferring criminal jurisdiction over its territory to The Hague.

Chief Prosecutor of the International Criminal Court, Fatou Bensouda, during the opening of the court's judicial year at The Hague, January 23, 2020

Chief Prosecutor of the International Criminal Court, Fatou Bensouda, during the opening of the court’s judicial year at The Hague, January 23, 2020 (Photo: ICC)

Bensouda’s position, laid out in great detail in a 60-page report, could pave the way for the investigation of war crimes committed in the occupied West Bank and East Jerusalem and the Gaza Strip. “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 [OPT],” she wrote.

It is now up to a pre-trial chamber to rule on the matter. The three judges of that chamber — Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin — have no set deadline to hand down their decision but are expected to do so within 120 days.

In the document she published Thursday, Bensouda reiterated that her position is not about the question of Palestinian statehood per se, but rather about whether the State of Palestine, which is a member of the ICC, can convey criminal jurisdiction to the court. In her view, Palestine indeed fulfills all required criteria to do so.

On December 20, 2019, following the conclusion of a five-year preliminary examination of the situation in Palestine, Bensouda said she had “reasonable basis to believe that war crimes were committed” in those regions by both the Israel Military and Hamas and other Palestinian armed groups.” At the time, she said that she herself believes the court indeed has jurisdiction to investigate possible war crimes in the regions, but, due to the controversial nature of the case, asked for a definitive ruling on the matter from a pre-trial chamber. Member states and independent experts were invited to weigh in on the matter as well.

The far-right Israeli government denounced Bensouda’s decision at the time. “I am forced to conclude that the prosecutor’s latest position continues to espouse her typical anti-Israel stance, as influenced by the Organization of Islamic Cooperation and the global BDS movement,” said acting Energy Minister Yuval Steinitz, who leads the cabinet’s handling of the ICC file. Israel has long argued that the ICC has no jurisdiction over the case not least because there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.

In February, the State of Palestine and 7 other countries, as well as 33 international organizations and independent scholars of international law, submitted so-called amicus curiae (friend of the court) documents, offering their views on whether Palestine is a state that can transfer criminal jurisdiction over its territory to The Hague. “Such a wide variety of perspectives will afford considerable legitimacy to the Court’s ultimate decision,” Bensouda wrote.

This led to the submission of 43 amicus curiae briefs, comprising eight submissions from state parties, including the State of Palestine, and a further two from intergovernmental organizations. Of these, the League of Arab States, representing 22 states, and the Organization of Islamic Cooperation, representing some 57 states, all of which recognize the State of Palestine and its exclusive sovereignty, expressed support of the Prosecutor’s findings. These states represent only a fraction of the 137 States that bilaterally recognize the State of Palestine. Also, academics, bar associations, including the Palestinian Bar Association, and non-governmental organizations filed compelling amicus curiae submissions in support of the prosecutor’s findings.

On Friday, May 1, the Palestine Liberation Organization (PLO) welcomed the position of the International Criminal Court’s chief prosecutor that the court has jurisdiction in the occupied Palestinian territories. “The Prosecutor’s conclusion reaffirming her position that the Court has jurisdiction is a positive development. We trust that the facts on this issue will prevail and that the long-awaited investigation into war crimes committed in the territory of the State of Palestine will soon be launched,” a PLO spokesperson said.

On Wednesday, April 29, over 180 Palestinian, regional and international human rights coalitions, organizations, and individuals called on Bensouda to investigate Israeli crimes in Palestine. In a joint open letter to the ICC Prosecutor, the Palestinian, regional, and international coalitions, organizations, and individuals, led by and including Palestinian coalitions representing over 200 Palestinian civil society organizations, said they overwhelmingly support the Prosecutor’s findings submitted to the pre-trial chamber.

“We urge that in light of the pervasive climate of impunity, which has prevailed for over five decades in the occupied Palestinian territory, that perpetrators of war crimes and crimes against humanity committed in Palestine must be held accountable at the International Criminal Court,” they said in the letter.

Palestinian human rights organizations Al-Haq, the Al-Dammeer Association for Human Rights, the Palestinian Center for Human Rights (PCHR), and the Al-Mezan Center for Human Rights, have meanwhile urged an immediate and comprehensive criminal investigation to bring an end to the pervasive climate of impunity enjoyed by Israeli perpetrators of war crimes and crimes against humanity, and that an investigation by the International Criminal Court encompass all parts of the occupied Palestinian territory.

“While the above described amici filings demonstrate concrete and emphatic support for the Prosecutor’s findings, we are cognizant of the fact that there is even broader and more widespread support from within Palestine, regionally, and internationally for an investigation by the International Criminal Court into war crimes and crimes against humanity committed in the occupied Palestinian territory, including crimes committed against civilian health workers, journalists, and children,” said the letter. For the Palestinian people, they said, “the International Criminal Court is truly a ‘court of last resort.’ It is time for justice. It is time for an investigation.”

Download the complete report issued by the Chief ICC Prosecutor, April 30, 2020 (PDF, 60 pages, English)