Netanyahu calls it ‘dark day,’ while figures in West Bank, Gaza Strip are encouraged by ICC decision to study allegations of war crimes against both sides
Friday’s announcement by International Criminal Court (ICC) prosecutor Fatou Bensouda of plans to open a formal investigation into alleged Israeli and Palestinian war crimes brought divergent reactions from the two sides.
“This is a dark day for truth and justice,” Prime Minister Binyamin Netanyahu stated shortly after Bensouda’s announcement.
“The court has no jurisdiction in this case. The ICC only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state,” he said.
Opening the Israeli cabinet meeting on Sunday, Netanyahu pointed to progress Israel has made in advancing relations with Arab countries, especially those in the Gulf.
“While we are moving forward to new areas of hope and peace with our Arab neighbors, the… Court… in The Hague is going backward,” he stated. “On Friday, it became a weapon in the political war against the State of Israel.”
Palestinian Authority President Mahmoud Abbas called Bensouda’s decision “a historic day. From now on, any Palestinian affected by the Israeli occupation can file a case with the International Criminal Court.”
The Gaza-based spokesperson for Hamas, Hazem Qassem, related his group’s support for the decision.
“Hamas is ready to provide evidence and documentation required to support Palestinian claims of Israeli war crimes, whether during escalations, wars or great march protests.”
The ICC prosecutor’s announcement came after five years of preliminary examinations of alleged Israeli and Palestinian crimes. She has requested a confirmation of the court’s territorial jurisdiction.
Essam Younis, head of Gaza-based Al Mezan Center for Human Rights, told The Media Line that “preliminary investigations have already proved suspicions of crimes against humanity, so… Palestinians’ claims are no longer mere allegations.”
He claimed that numerous Israeli violations have been documented by juridical and rights institutions, and thus were produced to the ICC.
Yet Bensouda’s announcement also cited allegations of Palestinian war crimes, meaning people on the other side could be liable to prosecution as well.
Mukhaimar Abusa’da, a political analyst, told The Media Line: “Everyone, including us [Palestinians], knows that charges of firing rockets and targeting civilians could reach Palestinian resistance factions as well.”
In an article for the Israel Democracy Institute, Hebrew University School of Law Prof. Yuval Shany, vice chair of the UN Human Rights Committee, explained the possible charges under consideration.
“The prosecutor writes that on the basis of the preliminary examination, she believes that Israelis and Palestinians have committed the following crimes:
“Israelis – Moving population into occupied territory after 2014; expanding Israeli settlements in the West Bank and East Jerusalem; undertaking intentional or disproportionate attacks against civilians, civilian and medical targets.
“Palestinians – Intentional assault by Palestinian factions in Gaza against Israeli civilians; use of human shields; punishment without trial; murder; torture; and violation of human dignity.”
Ibrahim Melhim, a Ramallah-based spokesperson for the Palestinian Authority government, told The Media Line that “the reference to territorial jurisdiction… raises hope of accrediting the 1967 borders of Palestine, including Gaza, the West Bank and Jerusalem.”
He explained that this “would abolish [US President Donald] Trump’s illegal measures of withdrawing Jerusalem from the negotiation process and [US Secretary of State Mike] Pompeo’s legalization of Israeli settlements. The decision delegitimizes all these measures.”
In this context, Abusa’da says the prosecutor’s decision is “a great achievement and a significant success for Palestinian diplomacy and the legal battle in which the Palestinian Authority and rights institutions have been fighting since 2014.”
Hebrew University’s Shany says Bensouda’s decision could have major ramifications for Israelis and Palestinians implicated in alleged crimes.
“If the tribunal adopts the prosecutor’s position regarding the authority, then in the second half of 2020, a criminal investigation will be opened, regarding the suspicions of the crimes mentioned in the application and possibly also other crimes that will be discovered in the investigation,” he wrote for IDI.
“The investigation may lead to indictments and arrest warrants against Israeli government and military leaders, and against Hamas military leaders and other Palestinian organizations. This means that each of the 123 member states will have to arrest and extradite any suspect who has been served a warrant on its territory.”
In a joint statement, Israel’s Foreign and Justice ministries said: “The [ICC] prosecutor has been influenced by Palestinian manipulation, which aims to weaponize the court. The attempt to turn a political issue into a legal one places a serious obstacle in the way of resolving the conflict. The prosecutor’s decision far from serves the cause of justice and peace, and in fact undermines these values.”
The joint statement continued: “Israel, a state founded after the horrors of the Holocaust, was among the first states to support the idea of establishing an international criminal court. Nevertheless, Israel, like other states, did not join the Rome Statute [which established the ICC] due to concerns that the court would be exploited as a political tool rather than fulfilling its original purpose. Today, the office of the prosecutor has proven that these concerns were justified.”
Pompeo referred to Bensouda’s decision by saying on Friday: “We firmly oppose this and any other action that seeks to target Israel unfairly.”
Abdelmajeed Sweilem, a Ramallah-based writer and political analyst, believes the matter is no longer up to the US.
“I don’t think America can do anything about it but condemn the decision,” he said to The Media Line. “Once the legal cycle of the decision is completed, America would disassociate itself [from responsibility].”
However, Abusa’da argues that even in case of conviction, Israel could get away with it.
“The convention itself needs permission from the United Nations Security Council, so eventually, Israel knows it will be protected by the right of veto.”
Mohammad Al-Kassim, Middle East bureau chief for The Media Line, spoke on the matter with Danny Ayalon, a former Israeli deputy foreign minister and ambassador to the United States.https://themedialine.org/wp-content/uploads/2019/12/Danny-Ayalon.wav 
(Mohammad Al-Kassim and Steven Ganot contributed to this report.)