War crime inquiry into 2014 Israel-Palestinian conflict grows more likely

ICC prosecutor details activities around Gaza war in document for three judges to rule on

International Criminal Court (ICC) chief prosecutor Fatou Bensouda: has set in train one of the ICC’s most controversial investigations. Photograph:  Cellou Binanicellou Binani/AFP/Getty

International Criminal Court (ICC) chief prosecutor Fatou Bensouda: has set in train one of the ICC’s most controversial investigations. Photograph: Cellou Binanicellou Binani/AFP/Getty

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The embattled International Criminal Court (ICC) has moved a significant step closer to opening a war crimes investigation into the Israel-Palestinian conflict in East Jerusalem, the West Bank and Gaza, some of the Middle East’s most dangerous and enduring flash points.

Having warned last December that she believed crimes had been committed by Israel and by Palestinian armed groups, including Hamas, in and around the Gaza war in 2014, ICC prosecutor Fatou Bensouda has published a 60-page document supporting that view in forensic detail.

Unusually, because of the particular sensitivity of the case, Ms Bensouda had also asked the court for a definitive ruling by judges on the appropriateness of the investigation once her full report was completed, and invited member states and independent legal experts to contribute to the debate.

Ms Bensouda’s assessment was handed on Friday to the three judges who will make the final ruling within 120 days – either to support the prosecutor’s decision to launch the investigation or to back away from a bitterly entrenched struggle that polarises international opinion.

Sovereign state

Ironically, if Ms Bensouda sets in train perhaps the most controversial investigation of the ICC’s 18-year history, which is likely to take a number of years to complete, she will actually preside over very little of the fact-finding work since her nine-year term of office ends in June 2021.

Israel says the ICC has no jurisdiction in the conflict because Palestine does not exist as a sovereign state. However, Ms Bensouda decided that because the “State of Palestine” is a signatory to the Rome Statute which set up the ICC, it is entitled to “convey criminal jurisdiction” to the court.

“The prosecution has carefully considered other submissions and remains of the view that the court has jurisdiction over the Occupied Palestinian Territory,” she wrote, in a decision certain to make her even less popular with Israeli prime minister Binyamin Netanyahu, and with the Trump White House.

Netanyahu and Trump

Mr Netanyahu had already decried Ms Bensouda’s bid to investigate Israel as “a baseless and scandalous decision”, while US president Donald Trump has imposed travel sanctions on the prosecutor for her decision to open an investigation in Afghanistan that will include US troops and the CIA.

Mr Netanyahu’s view was echoed on Friday by Israeli minister Yuval Steinitz, who said the decision reflected Ms Bensouda’s “typical anti-Israel stance” and her determination to “harm the state of Israel and tarnish its name”.

The Palestinian Liberation Organisation, on the other hand, welcomed the decision, commenting: “We trust that the facts of this issue will prevail and that the long-awaited investigation into war crimes committed in the state of Palestine will soon be launched.”

The 2014 war left 2,251 Palestinians dead. Seventy-four Israelis died.