- The decision by the International Criminal Court (ICC) on Friday to include the Palestinian territories within its jurisdiction has caused shockwaves in Israel and in other parts of the world.
- The decision paves the way for the ICC to investigate claims by Palestine alleging war crimes by officers of the Israeli military and government. .
- On Friday, Pre-Trial Chamber I of the ICC decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends t …
The decision by the International Criminal Court (ICC) on Friday to include the Palestinian territories within its jurisdiction has caused shockwaves in Israel and in other parts of the world.
The decision paves the way for the ICC to investigate claims by Palestine alleging war crimes by officers of the Israeli military and government. It also paves the way for the investigation of Palestinians, and militant groups such as Hamas for war crimes.
Israel’s strongest ally, the United States, has opposed the court’s decision.
“As we made clear when the Palestinians purported to join the Rome Statute in 2015, we do not believe the Palestinians qualify as a sovereign state, and therefore are not qualified to obtain membership as a state, or participate as a state in international organizations, entities, or conferences, including the ICC.” Ned Price, spokesman for the U.S. State Department said Friday.
“We have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”
The U.S. is not a Member of the ICC, having pulled out in 2002 when the court was founded, in a decision by the George W. Bush administration. The U.S. not only withdrew but sought guarantees that U.S. citizens be immune to the court, and thwarted other states from acceding to the statute without taking U.S. concerns into account. The U.S. vigorously pressed states to conclude “Article 98 agreements,” bilateral immunity agreements (BIAs) with the U.S. that would guarantee its citizens immunity from the court’s jurisdiction, threatening to cut off aid to states that refused to agree.
Hanan Ashrawi, a former member of the Palestine Liberation Organization’s executive committee, told Arab News that the ICC decision meant Israel will be “held to account.”
The ruling also showed that the court had refused to bow to intimidation by the Donald Trump administration, she said.
“Under Trump, they attacked the court and when that failed, they went after the prosecutors personally. They have been obsessive in their attempts to pressure and blackmail anyone who holds Israel to account. They targeted individual ICC prosecutors by freezing their bank accounts and putting them on a visa blacklist.”
The ICC “has withstood the pressure and now the accounting for war crimes should begin,” she told Arab News.
“They tried to interfere with the international legal system just to protect Israel, but the genie is finally out and you can’t put it back.”
Ashrawi said that any country should think twice before committing war crimes. “This is a clear signal that they don’t enjoy immunity.”
Israeli human rights group B’Tselem welcomed the ruling as a “landmark ICC decision,” saying it will have “restraining effect on Israeli action” and bring about an “end to impunity.”
Ahmad Deek, director-general of the office of the Palestinian foreign minister, told Arab News that the ICC decision “is a victory for victims and for international justice.”
“The ruling will provide an avenue for justice finally to be served,” he said.
Daniel Seidmann, an Israeli lawyer, peace activist and expert on the status of East Jerusalem, described the ICC decision as an “earthquake” for both Israel and U.S. efforts.
“ICC rejects Israel’s sovereign claims (and U.S. recognition),” he said in a tweet.
Seidmann said that Israel’s judiciary, police and lands authority would come under scrutiny along with its armed forces.
“An unprecedented challenge,” he said.
Riyad Mansour, permanent Palestinian representative at the UN, told Arab News that the ICC decision is the fruit of years of fighting in the international arena.
“For a long time, people were skeptical about the importance of these international efforts, but if it wasn’t for Palestine becoming a nonmember state of the UN, and qualifying for the Rome Statute and joining the ICC, we wouldn’t have had this ruling,” he said.
The ICC ruling has caused widespread disbelief and anger in Israel, with Prime Minister Benjamin Netanyahu calling it anti-semitic.
“Today, the International Criminal Court has proven once more that it is a political body and not a judicial institution,” Netanyahu said on Friday. “This is refined antisemitism.”
“This court was created to prevent horrors like the Nazi Holocaust against the Jewish nation, and now it is attacking the only country of the Jewish nation.”
Mr Netanyahu’s rival for the prime ministership Naftali Bennett was equally blunt. “Let me be clear, the ICC has no right to investigate, no right to indict, no right to try and no right to convict any Israeli whatsoever,” the Yemina Party leader said Sunday. “The International Criminal Court is a sham.”
“Israel is not a member of this fake court,” Bennett added.
Another prime ministerial candidate Gideon Sa’ar joined the chorus of Israeli leaders denouncing the ICC decision.
“It is yet another example of how the Palestinian Authority is working to hijack international institutions to attack Israel,” the New Hope Party leader said Sunday. “Shame on the ICC, for allowing sponsors of terror to abuse the cause of justice.”
“Israel is the most attacked country in the world, with the most moral army in the world,” Sa’ar said. “And this is the country that the ICC chooses to undermine its right to self-defense?”
“Israel will take all measures to combat this injustice.I will not allow Israel to be attacked in this way,” Sa’ar added. “I will work closely with our greatest ally, the United States and other countries to fight such hypocrisy and double standards.”
Israeli media have also attacked the ICC legal ruling.
“Israel will need to fight this decision and take steps to protect its soldiers, officers and members of government who could be associated with the settlement enterprise. It will need to work closely with the United States and allies in Europe to alienate the court and show that its ridiculous ruling will not prevail,” the widely-respected The Jerusalem Post said in an editorial published on Sunday. “Israel will need to make legal arguments about jurisdiction and the definition of war crimes but countries around the world need to know that what starts with Israel usually doesn’t stop here. It will continue.”
On Friday, Pre-Trial Chamber I of the ICC decided, by majority, that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
On 20 December 2019, the ICC Prosecutor announced the conclusion of the preliminary examination of the Situation in Palestine. The Prosecutor determined that all the statutory criteria under the Rome Statute for the opening of an investigation have been met. A decision on opening the investigation up to the ICC Prosecutor. On 22 January last year, the Prosecutor requested a ruling from the Chamber only on the scope of the Court’s territorial jurisdiction.
In Friday’s decision, Pre-Trial Chamber I recalled that the ICC is not constitutionally competent to determine matters of statehood that would bind the international community. By ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders. The Chamber’s ruling is for the sole purpose of defining the Court’s territorial jurisdiction, the ICC said in a statement published on Friday.
Pre-Trial Chamber I examined the Prosecutor’s request as well as the submissions of other States, organisations and scholars, and groups of victims. The Chamber held that, in accordance with the ordinary meaning given to its terms in their context and in the light of the object and purpose of the Statute, the reference to ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Rome Statute. The Chamber found that, regardless of its status under general international law, Palestine’s accession to the Statute followed the correct and ordinary procedure and that the Chamber has no authority to challenge and review the outcome of the accession procedure conducted by the Assembly of States Parties. Palestine has thus agreed to subject itself to the terms of the ICC Rome Statute and has the right to be treated as any other State Party for the matters related to the implementation of the Statute.
Pre-Trial Chamber I noted that, among similarly worded resolutions, the General Assembly of the United Nations in Resolution 67/19 “[reaffirmed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.” On this basis, the majority, composed of Judge Reine Adlade Sophie Alapini-Gansou and Judge Marc Perrin de Brichambaut, found that 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.
In addition, the Chamber found, by majority, that the arguments regarding the Oslo Agreements, and its clauses limiting the scope of Palestinian jurisdiction, are not pertinent to the resolution of the issue of the Court’s territorial jurisdiction in Palestine. Such matters and other further questions on jurisdiction may be examined when and if the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear, the ICC statement said.
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