JERUSALEM (AP) – The International Criminal Court said on Friday that its jurisdiction extended to Israeli-occupied territories in the 1967 Middle East war, paving the way for its chief prosecutor to open a war crimes investigation on Israeli military actions.
The decision was received by the Palestinians and denied by the Israeli prime minister, who accused the court of “legal persecution.”
ICC 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 and Israeli settlement activity in the occupied West Bank. But he asked the court to determine whether it has territorial jurisdiction before proceeding.
The Palestinians, who joined the court in 2015, have launched an investigation. Israel, which is not a member of the ICC, has said the court has no jurisdiction because Palestinians do not have a state and because the borders of any future state must be decided in peace talks.
Palestinians have asked the court to look into Israeli actions during its 2014 war against Palestinian militants in the Gaza Strip, as well as the construction of Israeli settlements in the occupied West Bank and the annexation of East Jerusalem.
The international community widely considers settlements to be illegal under international law, but has done little to pressure Israel to freeze or reverse its growth.
The international tribunal must serve as a court of last resort when the judicial systems of the countries themselves cannot or do not want to investigate and prosecute war crimes.
The Israeli military has mechanisms in place to investigate alleged violations by its troops, and despite criticism that the system is inadequate, experts say it has many chances to defend the ICC’s investigation into its war practices.
However, when it comes to settlements, experts say Israel may have difficulty 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 the Palestinians want for their future state. Some 700,000 Israelis live in settlements in the West Bank and East Jerusalem. The Palestinians and much of the international community consider the settlements to be illegal and an obstacle to peace.
Israel says East Jerusalem is an indivisible part of its capital and that the West Bank is a “disputed” territory whose fate should be resolved in the negotiations.
Although the court would have difficulty prosecuting Israelis, it could 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 military chief of 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 “harms the right of democratic countries to defend themselves against terror” and added: “We will continue to use all means to defend our citizens and soldiers against legal persecution.”
Nabil Shaath, a senior aide to Palestinian President Mahmoud Abbas, welcomed the decision and said it showed the Palestinians were right to go to the ICC. “This is good news and the next step is to start an official investigation into Israel’s crimes against our people,” he said.
The ICC could also investigate crimes committed by Palestinian militants. Bensouda has said his investigation will examine the actions of Hamas, which fired rockets indiscriminately at Israel during the 2014 war.
In Washington, U.S. State Department spokesman Ned Price told reporters that the Biden administration was “watching closely” the decision.
“However, we have serious concerns about the ICC’s attempts to exercise jurisdiction over Israeli personnel,” Price said. “We have always taken the position that the jurisdiction of the tribunal should be reserved for those who agree with it or are referred to it by the UN Security Council.”
The decision, detailed in a 60-page legal brief, was announced late Friday, after Israel had closed Jewish Weekly on Saturday.
Human Rights Watch welcomed the decision, saying it “finally offers victims of serious crime some real hope for justice after half a century of impunity.”
“It is time for Israeli and Palestinian perpetrators of serious abuses (whether war crimes committed during hostilities or the expansion of illegal settlements) to face justice,” said Balkees Jarrah, international director of justice. associated with the New York-based group.
The preliminary chamber of three judges ruled that Palestine is a state party to the Rome Statute establishing the ICC. With a dissenting judge, he ruled that Palestine qualifies as the state of the territory in which the “conduct in question” occurred and that the court’s jurisdiction extends to East Jerusalem, the West Bank and Gaza.
Last year, the Trump administration imposed sanctions on ICC officials, after previously revoking Bensouda’s entry visa, in response to court attempts to prosecute U.S. troops for actions in Afghanistan.
The US, like Israel, does not recognize the jurisdiction of the court. At the time, then-Secretary of State Mike Pompeo said the steps were a reward for research on the United States and its allies, a reference to Israel.
The Biden administration 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.