After five years of examination (and despite joint Israeli/US pressure), Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC) in The Hague, confirmed the criteria for opening a comprehensive investigation into “possible” Israeli “war crimes” in the Palestinian West Bank, including East Jerusalem, and in the Gaza Strip. As expected, the subsequent Israeli media campaign aimed to discredit Bensouda and accuse her of siding with the Palestinians has begun. She is being accused of surrendering to “anti-Israel” forces.
The ICC operates according to the principle of personal responsibility for crimes. It does not refer to conflicts between countries and does not file cases against countries. Although the investigation will include a list of crimes that have been carried out by all parties on top of which is the Israeli army, but it will also include the Palestinian resistance factions.
Yet, Avichai Mandelblit, the Israeli government’s judicial adviser attacked Bensouda’s decision and considered that “the West Bank and Gaza” are not within the jurisdiction of the court. He based his argument on the claim that “Israel has the legal right in the areas where the Palestinians ask the court to receive the authority to hold investigation there, the Oslo agreement and other agreements confirm that resolving the differences between the Palestinians and Israelis come within the framework of bilateral negotiations, and therefore the Palestinians violate these agreements signed between the two sides.”
It is important for the Palestinian Authority to expand and activate the Palestinian human rights team with Arab and international expertise to start preparing criminal files against the occupation
Move to thwart investigation
It is expected that Israel, and behind it the United States, will be working hard to thwart the investigation through additional pressures exerted on the prosecutor and the Court and possibly influential countries, to discourage the Palestinian leadership and the court from pursuing the probe.
For Israel, the matter is very dangerous, and this is evident in the Israeli reaction in various quarters, as the trial can reach current and former Israeli and colony leaders and all who have committed crimes against the Palestinians.
Indeed, according to the Israeli media: “The door is open for every Palestinian citizen to prosecute Israel retroactively from 2014 and Benjamin Netanyahu could be interrogated because of colony expansion, and Benny Gantz about his role in the 2014 Gaza war. The interrogation will include both current and former ministers, including current “Defence” Minister Naftali Bennett, former ministers-Avigdor Lieberman and Moshe Ya’alon”.
The court may also include for questioning current and former housing ministers about their role in construction and expansion, in colonies. Current and former military and security officials will not survive the investigation.
Crimes against Palestinians
According to the official Hebrew radio: “Israeli officials, both soldiers and politicians, are at risk of arrest if they travel to 100 countries because of the crimes they committed against the Palestinian people.” Indeed, Israeli fears intensified recently, when Tel Aviv expressed its fear that the International Criminal Court could issue secret international arrest warrants against Israeli officials suspected of war crimes against the Palestinians.
It was also revealed that a meeting of the security and political mini-cabinet was held in mid-January, in which “very difficult scenarios” were presented, in the event the Court decided to open an investigation against Israeli officials, and to issue secret arrest warrants for the arrest of those it suspects of war crimes and against humanity.
There is still a long way to go to see the day when the Palestinian people will make an achievement in their endeavour to bring Zionist war criminals to international tribunals. Today, what is required from the Palestinians to complete this step is unifying their efforts to ensure the completion of judicial reports against the occupation.
The unified Israeli/American position means that the work will not be easy, and the Palestinians must submit the reports to the ICC without waiting for the Israeli position.
It is important for the Palestinian Authority to expand and activate the Palestinian human rights team with Arab and international expertise to start preparing criminal cases against the occupation. This is because the pressures of time are strong, as the court’s primary room has 90 days, which can be extended for 60 days, and the time limit is up to six months as a maximum, during which the court will decide on what the prosecutor has provided.
In order not to lose the opportunity provided by the ICC, they need to recall several opportunities they missed, foremost of which is the abortion of following up and activating the decision of the International Court of Justice regarding the Apartheid wall in 2004, and the aborting of the Goldstone Report in 2009. What the ICC Prosecutor began after a long wait is an important opportunity to bring multiple Israeli leadership levels to face the responsibility of crimes where it has taken so long.
—Professor As’ad Abdul Rahman is the Chairman of the Palestinian Encyclopedia.