Palestine just passed another signpost on the long road to justice.
The court has jurisdiction to investigate war crimes perpetrated in the occupied West Bank, including East Jerusalem, and Gaza Strip, she added.
Bensouda recognized that “a finding that the court lacks jurisdiction would most likely foreclose any access to justice for victims” of crimes she identified during her preliminary examination of the situation in Palestine.
That years-long probe concluded in December when Bensouda recommended the court open a formal investigation. But she requested that a pre-trial panel of judges make a ruling on jurisdiction as a precondition to an investigation.
That decision is expected in the next few months.
Palestinian human rights groups that have pursued war crimes investigations at the ICC welcomed the prosecutor’s response last week to more than 50 submissions made to the court arguing for and against jurisdiction in the occupied territories.
Shawan Jabarin, the director of Al-Haq, one such human rights group, applauded Bensouda’s “extensive reliance on submissions made on behalf of Palestinian victims.”
The Palestinian people, whose right to self-determination has long been recognized while its exercise has been denied, are the rightful sovereigns of the West Bank and Gaza, Bensouda argued.
The last recognized sovereign of those territories was the Ottoman Empire, which renounced its rights and title in 1923.
Palestine was treated as an independent nation at the adoption of the Versailles Treaty in 1919 following the collapse of the Ottoman Empire. But in 1947 the United Nations recommended partitioning Palestine into two “independent Arab and Jewish states.”
British rule over Palestine in the interim had already paved the way for the Zionist colonization that culminated in the declaration of the State of Israel on 14 May 1948.
Then came the Israeli seizure of the West Bank and Gaza, administered by Jordan and Egypt, respectively, by force in 1967. It was followed by a belligerent military occupation of those territories – including the construction of Israeli colonies in them.
“Palestine’s viability as a state – and the exercise of the Palestinian people’s right to self-determination – has been obstructed by the expansion of settlements and the construction of the barrier and its associated regime in the West Bank,” Bensouda stated.
She has noted that contemporary international law recognizes the right to self-determination as both fundamental and universal, “giving rise to an obligation to the international community as a whole to permit and respect its exercise.”
Right to self-determination
This position was applauded by Palestinian rights groups.
“The prosecutor’s endorsement of the Palestinian people’s right to self-determination and permanent sovereignty is very welcome,” Al-Haq’s Jabarin said.
But Bensouda defended her request for a ruling on court jurisdiction before any actual criminal case, a move that was criticized by some Palestinian victims and their representatives.
She also rejected the argument advanced by Israel’s surrogates that recognizing court jurisdiction would improperly confer statehood onto Palestine, a status that she agrees does not result from accession to treaties like the Rome Statute.
She observed that no state party employed the mechanisms of that statute to challenge Palestine’s accession in 2015.
An inequitable “two-tiered” accession to the court would undermine “the protection and deterrence that accession” to the Rome Statute provides, she said.
“Simply put, any person who commits an international crime on the territory of a state party is liable to investigation and prosecution either by a state or at the court, irrespective of their citizenship,” Bensouda stated.
International crimes include genocide, war crimes and crimes against humanity.
In disagreement with some of the Israel-aligned observations submitted to the court, Bensouda said the Oslo accords signed by Israel and the Palestine Liberation Organization in the 1990s do not bar the court from exercising jurisdiction in the West Bank and Gaza.
Nor would a determination of court jurisdiction “entail resolution of territorial ‘disputes’ between Israel and Palestine, which is clearly not the court’s mandate,” she added.
“Undisputed territorial borders are not required for the court to exercise its jurisdiction, nor are they a prerequisite for statehood; indeed a state may exist despite conflicting claims over its territory,” Bensouda said.
Many of the crimes that Bensouda found in her preliminary examination are ongoing.
“As annexation of parts of the West Bank by the State of Israel appears imminent, with American support, it is more important now than ever that an investigation be conducted into Israeli war crimes and crimes against humanity,” Al-Haq stated.
The rights group expressed its disappointment over the prosecutor excluding waters off Gaza’s coast from her understanding of the court’s jurisdiction.
Palestinian groups “remain concerned about the ongoing commission of the crime of pillage at sea, the unlawful appropriation of Palestinian offshore natural resources, and the systematic attacking of Palestinian fishermen off the Gaza shore,” Al-Haq added.
That group said it “remains concerned that the prosecutor continues to resist taking action in the Mavi Marmara case.”
In 2015, the prosecutor decided to not open an investigation into the fatal wounding of 10 people when Israeli commandos stormed the Mavi Marmara, the largest ship in a humanitarian flotilla headed to Gaza.
ICC appeals judges have twice told Bensouda to reconsider, and the case is still being appealed by the victims’ lawyers.
When the panel of judges issues its decision on court jurisdiction per Bensouda’s request, that too will likely be appealed. Indictments of high-ranking Israeli officials, let alone war crimes trials, remain a long way off.
The court faces the wrath of the US and Israel, and will come under increasing pressure as it moves towards opening investigations that would make officials of both countries liable to prosecution.
Submissions made by signatories to the Rome Statute such as Germany arguing against court jurisdiction in Palestine, as well as a thinly veiled threat of defunding from Canada, undermine the court’s ability to exercise its independent mandate in the face of US-Israeli belligerence.
Meanwhile, the newly formed Israeli government plans to proceed with the annexation of large swathes of West Bank land in July.
“As the ICC constitutes the last hope for accountability for Palestinian victims, it is crucial that it takes steps to put an end to Israel’s impunity,” the Palestinian Center for Human Rights stated.