The chief prosecutor of the International Criminal Court in the Hague announced on Wednesday her intention to open an investigation into war crimes allegedly committed by Israelis and Palestinians since 2014.
The announcement was denounced by Israel but welcomed by the Palestinian Authority, which had requested the probe. It comes less than a month after the ICC ruled that it had jurisdiction to open an investigation.
“The investigation will cover crimes within the jurisdiction of the court that are alleged to have been committed in the situation since 13 June 2014, the date to which reference is made in the referral of the situation to my office,” said Chief Prosecutor Fatou Bensouda.
“Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favor.”
By choosing June 13, 2014 as the start date for the investigation, it will not look into the murder of three Israeli Jewish teenagers — Eyal Yifrach, Gilad Shaar and Naftali Frenkel — that happened the day before.
Israeli Prime Minister Benjamin Netanyahu called the ICC investigation “the epitome of anti-Semitism and hypocrisy.”
Similarly, Israel’s President Reuven Rivlin called the decision to investigate Israel “scandalous.”
“We will not accept claims against the exercise of our right and our obligation to defend our citizens.
“The State of Israel is a strong, Jewish and democratic state that knows how to defend itself and to investigate itself when necessary,” Rivlin said.
The PA praised the decision, saying that it would be ready to provide “any assistance required . . . to realize justice for the Palestinian people.”
The court dates its investigation to the period beginning the day after the kidnapping and murder of the three Israeli teens
“This long-awaited step serves Palestine’s tireless endeavor to achieve justice and accountability, which are indispensable foundations for the peace that the Palestinian people demand and deserve,” said the PA Foreign Ministry.
Hamas also welcomed the decision by the ICC. The Palestinian terror group is also directly implicated in war crimes the court is investigating. Hamas calls its acts “legitimate resistance.”
Orde Kittrie, senior fellow at the Foundation for Defense of Democracies, says that the decision is “politically driven.”
“It is contrary to international law, the ICC’s legal mandate, and the institutional interests of the International Criminal Court,” he said.
Kittrie argued that the ICC has no jurisdiction in this case and that it has been backed up by several countries around the world.
“Bensouda has claimed ICC jurisdiction over alleged Israeli war crimes because they occurred in the Palestinian Authority, which has purported to join the ICC as a state.
“However, Palestine’s status as a state for ICC purposes has been refuted by numerous submissions to the ICC, including by the Obama administration’s point person for ICC issues and by several European and other governments including those of Australia, Canada, the Czech Republic and Germany.”
While Israel and several world powers — the US, Russia, China and India — are not members of the ICC, any decisions by the court could make life difficult for Israeli officials and military leaders.
Although the ICC doesn’t try states, it can target individuals with international arrest warrants.
Israel is concerned that its officials and military officers could face arrest warrants, while also providing a boost to the BDS campaign against the Jewish state.
Prof. Eugene Kontorovich, director of international law at the Jerusalem-based Kohelet Policy Forum, says that the investigation highlights how the ICC has become a politicized tool to attack Israel.
“The decision has no basis in law or precedent; rather, the ICC has become just another anti-Israel international organization.
“But it is important to remember that the Palestinian Authority brought this about, in contradiction of all their commitments under Oslo.
“Israel cannot be expected by the Biden Administration to negotiate with the PA while under an investigation instigated by the PA.”
The ICC investigation may force the Biden administration to get more involved in the Israeli-Palestinian conflict at a time when it is dealing with more pressing foreign and domestic concerns.
Last year, the Trump administration imposed sanctions on top officials in the ICC, including Bensouda and Phakiso Mochochoko, head of the court’s jurisdiction, complementarity and cooperation division. These sanctions, imposed due to the court’s attempts to prosecute US soldiers in Afghanistan, included revoking visas of ICC officials.
Last month, the State Dept. said it had “serious concerns” over the ICC’s ruling on its jurisdiction to investigate Israel and that it represented a biased attack on the Jewish state.
More recently, a bipartisan group of senators urged Sec. of State Tony Blinken to denounce more strongly the ICC’s investigation.
The investigation comes as Bensouda’s term nears its end. In June, UK prosecutor Karim Khan will take over and could decide to end the probe.
“Bensouda’s aggressive move against Israel is also surprising from an institutional perspective,” said Kittre. “It comes just three weeks after Karim Khan, a respected British attorney, was elected to replace Bensouda when her term expires on June 15.
“Khan defeated Fergal Gaynor, an Irish attorney who has long been the leading outside advocate of the ICC investigations of the US and Israel. Bensouda appears to be trying to box in her successor.”
Kittrie said that it appears Bensouda — who has faced criticism from an independent investigation last year over her leadership of the ICC, including allegations of bullying and sexual harassment under her watch — may be trying to prevent herself from facing legal jeopardy.
“Bensouda appears to be taking these inappropriate steps on her way out the door in an effort to distract from her mismanagement of the ICC, and perhaps try to insulate herself from legal jeopardy, by appealing to anti-US sentiments,” he said.