JERUSALEM (AP) – The International Criminal Court said on Friday that its jurisdiction extends to the territories occupied by Israel in the 1967 Middle East war, paving the way for its chief prosecutor to open a war crimes investigation into military actions Israelis.
The decision was well received by the Palestinians and condemned by the Israeli prime minister, who accused the court of “legal harassment”.
The ICC’s chief prosecutor, Fatou Bensouda, said in 2019 that there was a “reasonable basis” for opening a war crimes investigation into Israeli military actions in the Gaza Strip, as well as about Israeli settlement activities in the occupied West Bank. But she asked the court to determine whether she has territorial jurisdiction before proceeding.
Palestinians, who joined the court in 2015, pushed for an investigation. Israel, which is not a member of the ICC, said the court has no jurisdiction because the Palestinians do not have a state and because the borders of any future state will be decided in peace negotiations.
The Palestinians asked the court to examine Israeli actions during the 2014 war against Palestinian militants in the Gaza Strip, as well as Israel’s construction of settlements in the occupied West Bank and annexed East Jerusalem.
The international community widely considers settlements illegal under international law, but has done little to pressure Israel to freeze or reverse its growth.
The international court must serve as a court of last resort when the judicial systems of the countries themselves are unable or unwilling to investigate and prosecute war crimes.
Israel’s military has mechanisms to investigate alleged irregularities by its troops, and despite criticism that the system is insufficient, experts say it has a good chance of defending itself from the ICC’s investigations into its war practices.
When it comes to settlements, however, experts say Israel may have a hard time defending its actions. International law prohibits the transfer of a civilian population to occupied territory.
Israel captured the West Bank, Gaza and East Jerusalem in the 1967 war, territories that Palestinians want for their future state. About 700,000 Israelis live in settlements in the West Bank and East Jerusalem. Palestinians and much of the international community consider settlements to be illegal and an obstacle to peace.
Israel says East Jerusalem is an indivisible part of its capital and the West Bank is a “disputed” territory whose fate must be resolved in negotiations.
Although the court finds it difficult to prosecute Israelis, it can issue arrest warrants that would make it difficult for Israeli officials to travel abroad. A case at the ICC would also be deeply embarrassing for the government. Israeli Prime Minister Benjamin Netanyahu led the 2014 war in Gaza, while Israeli Defense Minister Benny Gantz was the chief of the military staff at the time.
Netanyahu said the decision “proves once again that the court is a political body and not a legal institution”.
He said the decision “violates the right of democratic countries to defend themselves in the face of terror” and added: “We will continue to use all means to defend our citizens and soldiers in the face of legal persecution”.
Nabil Shaath, a senior adviser to Palestinian President Mahmoud Abbas, welcomed the decision and said he proved that the Palestinians were right to go to the ICC. “This is good news and the next step is to launch an official investigation into Israel’s crimes against our people,” he said.
The ICC can also potentially investigate crimes committed by Palestinian militants. Bensouda said his investigation would investigate the actions of Hamas, which fired rockets indiscriminately at Israel during the 2014 war.
In Washington, US State Department spokesman Ned Price told reporters that the Biden government was “closely examining” the decision.
“However, we have serious concerns about the ICC’s attempts to exercise jurisdiction over Israeli personnel,” said Price. “We have always taken the position that the court’s jurisdiction should be reserved for those who consent to or are referred by the UN Security Council.”
The decision, detailed in a 60-page legal summary, was released on Friday after Israel closed for the weekly Jewish Saturday.
Human Rights Watch welcomed the decision, saying that “it finally offers victims of serious crimes some real hope of justice after half a century of impunity.”
“It is high time that the perpetrators of the most serious abuses in Israel and Palestine – war crimes committed during hostilities or the expansion of illegal settlements – face justice,” said Balkees Jarrah, associate director of international justice for the group with headquarters in New York.
The pre-trial chamber of three judges decided that Palestine is a state party to the Rome Statute, which establishes the ICC. With the dissent of a judge, he decided that Palestine qualifies as the state in the territory in which the “conduct in question” occurred and that the jurisdiction of the court extends to East Jerusalem, the West Bank and Gaza.
Last year, the Trump administration imposed sanctions against ICC officials, after revoking Bensouda’s entry visa, in response to the court’s attempts to sue American troops for actions in Afghanistan.
The United States, like Israel, does not recognize the jurisdiction of the court. At the time, then Secretary of State Mike Pompeo said the measures were retribution for investigations in the United States and its allies, a reference to Israel.
The Biden government has said it will review these sanctions.
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Associated Press writers Joseph Krauss in Jerusalem and Matthew Lee in Washington contributed to this report.