The prosecutor of the International Criminal Court took a major step Friday toward opening an investigation in the occupied Palestinian territories, asking judges exactly what territory a future investigation could cover.
The announcement ended five years of preliminary investigations into alleged crimes by both Israeli forces and Palestinians and signaled that Prosecutor Fatou Bensouda is preparing to open a formal probe.
It drew swift condemnation from Israel, with Prime Minister Benjamin Netanyahu calling it "a dark day for truth and justice."
While Israel is not a member of the court and does not recognize its jurisdiction, Palestinians have been recognized as a member state and requested an investigation.
"I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine," Bensouda said in a statement.
She said she is "satisfied that ... war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip."
Bensouda said she has now asked judges to outline the geographic scope of an investigation.
"Specifically, I have sought confirmation that the 'territory' over which the Court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza."
Netanyahu said Bensouda's decision "has turned the International Criminal Court into a political tool to delegitimize the State of Israel. The prosecutor has completely ignored the legal arguments we presented to her."
At the Palestinians’ request, Bensouda opened a preliminary investigation in 2015 into alleged violations of international law following the 2014 war between Israel and Palestinian terror groups in the Gaza Strip.
In regard to Israel, the prosecutor found the IDF carried out disproportionate attacks in at least three of the cases examined.
She also found Hamas and other Palestinian militant groups may have carried out war crime by launching rockets at Israeli civilians and using their own civilians as human shields.
The prosecutor added the Palestinian groups denied suspects the right to a fair trial – which is presumed to relate to the executions of suspected collaborators with Israel, carried out by Hamas in the course of the 2014 fighting.
The prosecutor would also like to investigate shootings by the IDF of Palestinian protesters on the Gaza-Israel border during "March of Return" demonstrations beginning in March 2018.
As she considers settlement building a war crime, the prosecutor said she intends to investigate those responsible for construction in the settlements and the settling of Israelis in the West Bank beginning June 2014.
If the ICC sanctions opening of the investigations into alleged war crimes in the West Bank, Gaza and East Jerusalem, the result would be opening the door for charges against Israel for such crimes by every Palestinian.
With the peace process at a standstill for more than a decade, the Palestinians have in recent years sought to hold Israel accountable for alleged violations of international law, including the construction and expansion of Israel's settlements in the West Bank and East Jerusalem.
Israel seized those territories along with the Gaza Strip in the 1967 Six-Day War. The Palestinians want all three to be part of their future state.
In a legal opinion released Friday, Attorney General Avichai Mandelblit said the Palestinians do not meet the criteria of statehood because they do not have sovereignty over defined borders. Citing past peace agreements, Israel said the two sides had agreed to resolve their territorial dispute in negotiations.
“By approaching the ICC, the Palestinians are seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings,” the legal opinion said.
The Palestinians insisted they are a fully-fledged member of the court and that the court has jurisdiction.
First published: 18:19 , 12.20.19