By Robert Johnson

THE HAGUE, The Netherlands (IDN) – The International Criminal Court (ICC) Prosecutor Fatou Bensouda has announced plans to open a formal investigation into alleged war crimes in Palestine, subsequent to a “thorough, independent and objective assessment”. At the same time, she said that she has asked the Court for a further ruling over territorial jurisdiction.

The ICC Prosecutor said on December 20: “The preliminary examination into the Situation in Palestine has concluded with the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met… I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine.”

While stressing that “war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”, she said she believes that “potential cases arising from the situation would be admissible” and that there were “no substantial reasons to believe that an investigation would not serve justice”.

Ms. Bensouda explained that she would not seek the Pre-Trial Chamber's authorization before opening an investigation as Palestine itself had made the referral.

But considering the “unique and highly contested legal and factual issues” attached to the situation, namely, “the territory within which the investigation may be conducted”, she deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.

The UN General Assembly voted in favour of giving Palestine non-member observer status in 2012.

Reacting on Twitter, the Israel Foreign Ministry said: “we utterly reject the Prosecutor’s decision and urge other countries to do so”.

Earlier in the day, she requested from Pre-Trial Chamber I, “a jurisdictional ruling” to confirm that the Court may exercise its jurisdiction over the West Bank, including East Jerusalem, and Gaza.

“Such determination, the ICC Prosecutor explained, is made strictly for the purposes of determining the Court's ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute”.

This “foundational question”, she added, should be decided as swiftly as possible “in the interests of victims and affected communities; potential witnesses and their related protection needs and obligations” and to provide clarity for the States concerned.

Ms. Bensouda invited the Chamber to “rule expeditiously, while also permitting victims, relevant States, and others to participate in these proceedings, as appropriate”. By obtaining a ruling in an open and transparent manner, she hoped that the process would “assist the Chamber in its determination” and also endow its decision “with greater clarity and reinforced legitimacy”.

The ICC Prosecutor added: “It is necessary for this specific matter before the Chamber to be resolved without undue delay so that my Office can take the appropriate next steps accordingly.”

While not a United Nations organization, the Court has a cooperation agreement with the UN. When a situation is not within the Court’s jurisdiction, the United Nations Security Council can refer the situation to the ICC granting it jurisdiction.

The ICC is participating in a global fight to end impunity, and through international criminal justice, it aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court. [IDN-InDepthNews – 20 December 2019]

Photo: International Criminal Court Chief Prosecutor Fatou Bensouda. Credit: ICC

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