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The International Criminal Court and Israel

(Institute for National Security Studies-Tel Aviv University) Col. (ret.) Pnina Sharvit Baruch - On Dec. 20, 2019, the Prosecutor of the International Criminal Court (ICC) announced her decision to launch an investigation into the "situation in Palestine." The decision relates to all actions taken in the West Bank, east Jerusalem, and Gaza since June 13, 2014. In her legal opinion, the Prosecutor presents the reasons she believes Palestine can be viewed as a state for the purpose of Court jurisdiction. First, she asserts that the UN General Assembly's acceptance of Palestine as an observer state suffices to that end. The Prosecutor argues that even though Palestine does not exercise full control over all of the territory of the West Bank and east Jerusalem, which is under Israeli control, and Gaza, which is under Hamas rule, it should still be recognized as a state in the entirety of the territory, given the fact that 138 states have recognized a state of Palestine. From the Prosecutor's analysis it is clear she is convinced that Israel's policy in the territories is illegal. She clearly lends great weight to the decisions of UN bodies, including the General Assembly and the Human Rights Council, which are well-known for their decided anti-Israel bias. The Prosecutor attributes little weight to the fact that the issues of the settlements and borders are meant to be decided in negotiations between the sides, and pays no heed to the complex security reality - totally ignoring, for example, the wave of terrorism early in the millennium [in which 1,137 Israelis were killed] in her detailed account of the historical background to the conflict. The Court is more than likely to adopt the Prosecutor's position that its jurisdiction covers all of the "Occupied Palestinian Territories." These are the same judges who ruled in November 2018 that the Prosecutor must review her decision not to launch an investigation in the Marmara flotilla affair. The Prosecutor's decision is not surprising, per se, as most expectations were that an investigation would be launched. Her decision was noticeably characterized by a total adoption of the Palestinian narrative on the conflict. Israel can expect a difficult battle, especially when it comes to the "crime" of the settlements. The writer, a senior research associate at INSS, served as head of the IDF's International Law Department.
2019-12-25 00:00:00
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