The International Criminal Court’s decision to include “territories occupied by Israel” in the 1967 war as within its jurisdiction continued to draw praise and condemnation over the weekend, as reactions poured in from across the region and around the globe.
Israeli Prime Minister Binyamin Netanyahu, released a response video during the Jewish Sabbath, a rarity, calling the ruling “pure anti-Semitism” and insisting Jewish settlements could not be illegitimate since they are located in “our homeland.”
Palestinian Authority Prime Minister Mohammad Shtayyeh, meanwhile, labeled the ICC’s conclusions “a historic victory for justice and humanity,” adding that Jerusalem had until now been treated as “above the law.”
A statement released by the US State Department on Saturday expressed “serious concerns” over the international court’s ruling, reiterating Washington’s stance that “the Palestinians … do not qualify as a sovereign state, and therefore are not qualified to participate” in the ICC’s legal proceedings.
On Friday, a pre-trial chamber of The Hague-based ICC, in a two-to-one majority, authorized future investigations of international law violations in the territories in question; namely, the West Bank, the Gaza Strip and east Jerusalem, captured by Israel over 50 years ago.
While noting that it does not have the authority to determine the question of Palestinian statehood, the court did recognize the Palestinian Authority as party to the 1998 Rome Statute, upon which the international forum is based, and decreed the disputed territories to be under its jurisdiction.
Though Israel objected to the Rome treaty and is not a member of the ICC, Palestine’s accession to the statute now enables prosecutors to launch investigations of genocide, crimes against humanity, war crimes and crimes of aggression perpetrated in the territories in question by either Israeli or Palestinian forces.
“This is a very superficial and formalistic interpretation of the Rome treaty, and frankly just plain wrong,” Col. (res.) Adv. Pnina Sharvit Baruch, a senior research fellow at Tel Aviv University’s Institute for National Security Studies, told The Media Line.
“The majority opinion totally circumvents and ignores the core question of the territories, and if they are part of a Palestinian state that hasn’t been established yet by any international law measures,” Baruch, who headed the Israeli military’s International Law Department, explained.
The ruling states that since the PA was accepted by the United Nations as an observer state in 2012, the territories it claims, which are still in dispute, can be litigated in The Hague.
This is a very superficial and formalistic interpretation of the Rome treaty, and frankly just plain wrong
“That’s simply incorrect,” said Robbie Sabel, professor of international law at the Hebrew University and a former legal advisor to Israel’s Ministry of Foreign Affairs.
“They said that Palestine was a state which has clear territories. The fact is they have no authorities whatsoever, in any area except Area A,” a designation of approximately 18% of West Bank lands according to the Oslo Accords of the 1990s, he said.
“You can tell [the justices] weren’t completely comfortable with their own interpretation, because they leave an opening to reverse their decision in any future prosecutions. They basically took the easy way out – authorized an investigation, but allowed the matter to be contested again,” Baruch said.
Over the past year, while the matter was being litigated, Israel refused to officially make its case, preferring to ignore or denounce the process altogether.
“That’s always a tough decision – if you show up, you can have your day in court and be heard, but then you legitimize the process and must accept the outcome,” Baruch said, adding that while Jerusalem did not officially represent itself, its position was defended by dozens of amicus briefs submitted by individuals and organizations, some directly associated with the Jewish state.
As to the fallout of Friday’s landmark ruling, experts agree no imminent danger awaits Israeli soldiers or officials.
“It’s a very long way away,” said Sabel, who in the past served as legal adviser to Israeli delegations to the United Nations General Assembly and to several peace negotiations summits. He added that the ICC must first open a full investigation, and then press charges.
“On the issue of war crimes in Gaza, Israel has in fact investigated every claim, so that’s the end of that, according to the Complementarity Principle,” he said.
Under complementarity, the ICC only has jurisdiction if a country is unwilling or unable to prosecute alleged perpetrators.
“As for the settlements – that’s purely political, not intrinsically criminal,” Sabel also said.
The settlements are potentially a more serious issue than the war crimes article
“Murder, rape – those are articles in the ICC’s statute that are criminal by nature. But the settlements are a question of borders. If it is decided that the territories they are on are part of a Palestinian state, then that’s another issue. But that will be a political decision,” he added.
Baruch believes that warrants may eventually be issued, but “probably only against senior officials, if at all.”
“The settlements are potentially a more serious issue than the war crimes article. Israel has some worthy rebuttals, but some warrants, even against the prime minister, can be issued,” she said.