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Friday, March 05, 2021

Explained: ICC ruling says it has jurisdiction in Palestinian Territories. Here’s what it means

According to the ruling, the ICC would have jurisdiction to investigate potential war crimes commited in Palestinian territories. Why is it being welcomed by Palestinians and criticized by Israel? What is India's stance?

By: Explained Desk | Kolkata |
February 16, 2021 1:19:04 pm
In this Feb. 7, 2017 file photo, Palestinian laborers work at a construction site in the Israeli settlement of Maale Adumim, near Jerusalem. Israel's half-century campaign of building settlements on occupied lands appears to be especially vulnerable to prosecution. (AP Photo/Oded Balilty, File)

The International Criminal Court said on February 5 that the court has jurisdiction over war crimes committed in the Palestinian territories, a ruling that was welcomed by Palestinians and criticized by Israel.

What is the judgment about?

According to this ruling, the ICC would have jurisdiction to investigate potential war crimes commited in Palestinian territories. A statement by the UN Human Rights Council attributed to Michael Lynk, the Special Rapporteur for the situation of human rights in the Palestinian territory, said: “This is a significant step forward in the quest for justice and accountability involving the unaccountable 53-year-old occupation of the West Bank, including East Jerusalem, and Gaza.”

According to a Reuters report, the ruling was delivered by a pre-trial chamber of three ICC judges, provisions of which could lead to criminal investigations of Israel and Palestinian militant groups including Hamas. The report added that no probe was expected in the near future.

This means that despite the ruling, there would be no immediate investigations even for those cases that had been brought to the attention of the international community.

How did this happen?

This ruling was really a result of the Palestinian Authority gaining formal membership of international criminal court in 2015. Israel is not a member of the ICC. At that time, the Palestinian Authority had not immediately started pressing complaints, in a move that observers had believed was an attempt to avoid direct conflict with the US Congress, which was authorised to freeze US aid to the Palestinian Authority if pursued its own legal cases.

This time however, Reuters reported the ICC judges saying that their decision was based on the fact the Palestine Authority had referred the situation to the court. But the judges said the jurisdiction does not “imply any attempt to determine Palestinian statehood, which is uncertain, or national borders.”

“The Court’s territorial jurisdiction in the Situation in Palestine… extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem,” Reuters reported the court saying.

What was the response to the ruling?

Israel’s Prime Minister Benjamin Netanyahu denounced the ruling saying that the ICC was investigating Israel for “fake war crimes”, calling it “pure anti-Semitism”. He added that a court that was established to investigate atrocities like the Holocaust commited by Nazis, was now “targeting” a state for the Jewish people and was unwilling to investigate Iran and Syria who were committing “atrocities almost daily”.

The United States also objected to the ICC’s decision, which was welcomed by the Palestinian Authority. According to a Reuters report, Palestinian Foreign Affairs Minister Riyad al-Maliki said it was an “historic day” and that Israel had previously been treated “above the law.”

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What happens next?

ICC prosecutor Fatou Bensouda told Reuters that her office was studying the decision and would decide the next steps “guided strictly by its independent and impartial mandate” to prosecute war crimes and atrocities. In December 2019, Bensouda had said that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.”

Prosecutor Fatou Bensouda at the International Criminal Court (ICC) in The Hague, Netherlands. (Bas Czerwinski/Pool file via AP, File)

During the Trump presidency, the US had imposed sanctions on Bensouda and two other ICC officials for investigating war crimes committed by the US in the Middle East and had openly opposed and rejected the ICC’s jurisdiction. After Biden took office, the White House had said it would be reviewing these sanctions. Despite that, it still rejected the ICC’s latest ruling concerning the Palestinian Territories.

According to this new ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, deemed terrorist organizations by the West, that have been accused of targeting Palestinian civilians, including using them as human shields.

But on February 12, Reuters reported that British barrister Karim Khan would be replacing Bensouda as the new prosecutor for a nine-year term starting on June 16, following his election by parties to the ICC. Khan is known for heading the United Nations’ special investigative team looking into Islamic State crimes in Iraq and has also worked for major international criminal tribunals in roles in prosecution, defence and as counsel for victims, the report said.

Following his appointment, the decision to press ahead with a full investigation into whether war crimes have been commited in the Palestinian Territories might be one of the first few cases that Khan is likely to handle.

According to a report by The Jerusalem Post, there was some speculation that the US and Israel were both hoping for Khan’s selection because of his nationality as a citizen of the United Kingdom “a country more closely allied with both the US and Israel than either Argentina or Gambia, where the past two prosecutors came from.”

The report added that a significant part of Khan’s career was spent as a defense lawyer which could make him more likely to be in favour of defendants, in this case Israel. The report added that in the past, Khan has criticized the “ICC prosecutor’s office for relying on shaky or weaker evidence” on occasion, which may play in the favour of parties like the US that wish to close investigations into its role in committing war crimes in Afghanistan and Israel’s war crimes in Gaza.

What is India’s stance?

The Indian Express reported how Israel has been pushing its “good friend” India to take a stand against the ICC ruling, but Delhi is reluctant to do so given its own geopolitical interests. Delhi has not responded to Netanyahu’s communication in this regard, but the report said a message was conveyed through diplomatic channels that since India is not a member of the Rome Statute, the founding treaty of the ICC, “it would not want to comment or take a position on any of the court’s decisions or rulings.”

India’s stance may be unwelcome to Israel that considers the country to be an important partner and a ‘like-minded nation”.

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