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International Criminal Court Opens Preliminary Probe Into War Crimes in Palestine

The move by the international body begins a lengthy process that could pave the way for charges against both Israelis and Palestinians.
Photo by Amr Nabil/AP

The International Criminal Court (ICC) opened a preliminary probe Friday into possible war crimes committed in Palestine, beginning a lengthy process that could pave the way for charges against both Israelis and Palestinians.

Though Palestine technically doesn't join the ICC until April 1, the country formally accepted the court's jurisdiction in early January. In a statement issued Friday, however, the office of prosecutor Fatou Bensouda clarified that jurisdiction could be retroactive dating back to the General Assembly's recognition of Palestine on November 29, 2012.


The move opened the door for Bensouda to begin a "preliminary examination into the situation in Palestine," which she did Friday. It's a common first step that occurs when countries accept the ICC's jurisdiction, and it does not guarantee an investigation or prosecution.

In light of what is already one of the court's most politically weighty tasks, Bensouda's office took pains to point out the Palestine inquiry "is not an investigation but a process of examining the information available." The probe, however, could inform whether to request a full-fledged investigation into individuals believed to have committed war crimes in Palestinian territory — a decision that could possibly take years.

"There's no timeline, some of the preliminary examinations at the court have been going on for four years," Richard Dickers, director of Human Rights Watch's International Justice Program, told VICE News. "What's underway is only the first phase of the judicial process."

In moving to join the ICC, Palestine gave the court jurisdiction over crimes in its territory dating back to June 13 of last year, just as Israeli security forces began a crackdown in the West Bank and a month before their assault on Gaza. The court's statement Friday means the date could be stretched back to November of 2012, but Palestinian leaders are focused on drawing attention to last summer's 50-day siege of Hamas-controlled Gaza that left more than 2,100 Palestinians dead — the majority civilians — along with 74 Israelis.


Rubble and rage in Jerusalem: Israeli bulldozers and the broken homes they leave behind. Read more here.

In addition to potential crimes committed during Israeli military operations, Palestinian President Mahmoud Abbas wants the court to look at Israel's longstanding settlement activity in the West Bank, which is widely considered illegal by the international community.

"By seeking to bring perpetrators to justice, we would be honoring the victims and protecting others from becoming victims in the future," the Palestinian Authority's Foreign Ministry said in a statement.

Hamas spokesman Fawzi Barhoum said the group welcomed the court's decision.

"What is needed now is to quickly take practical steps in this direction and we are ready to provide (the court) with thousands of reports and documents that confirm the Zionist enemy has committed horrible crimes against Gaza and against our people," Barhoum said.

Any investigation, however, would look at the entire realm of possible crimes and could just as easily implicate Palestinian leaders — something neither side has gone very far to publicize.

'What's underway is only the first phase of the judicial process.'

"It's really possible that the prosecutor could look at the alleged crimes and say for one reason or another she doesn't believe there is enough evidence to launch an investigation," David Kaye, director of the International Justice Clinic at University of California Irvine, told VICE News. "She could also say there's evidence that Hamas committed war crimes, and they should be investigated."


Nevertheless, the Israeli government views the ICC's involvement as an explicit affront.

Prime Minister Benjamin Netanyahu said Friday that the prosecutor's decision rendered the court "part of the problem, and not part of the solution."

"It is absolutely scandalous that just days after terrorists butchered Jews in France, the general prosecutors is beginning an inquiry against the state of the Jews," Netanyahu said.

Earlier this month, in response to Palestine joining the ICC, Israel froze more than $125 million in tax revenues it collected on behalf of the Palestinian Authority.

Under current American law, any action taken by the Palestinians at the ICC to target Israel would force the US to cut off $400 million in aid to the Palestinian Authority. A bill introduced by Senator Rand Paul would go even further, cutting off aid to the Palestinians merely for joining the ICC.

The US, like Israel, does not recognize Palestinian sovereignty and opposes bringing the decades-long conflict to the attention of the court. Neither Israel nor the US are members of the ICC.

Palestine's bid to join International Criminal Court sparks ire from Israel. Read more here.

"We strongly disagree with the ICC prosecutor's action," State Department spokesman Jeff Rathke said in a statement Friday. "The place to resolve the differences between the parties is through direct negotiation, not unilateral actions by either side."


Kaye, who is also the UN's special rapporteur on freedom of opinion and expression, said the move could complicate the relationship between the US and the court, which he described as "transactional."

"(The US) has been warm to the ICC because the cases the ICC are pursuing line up with cases the US want to see pursued," Kaye said. "There's never been a situation like the current one where there's the possibility of an investigation of a close ally. This could really change things."

Since it's inception in 2002, the ICC has only prosecuted Africans, though it has opened preliminary examinations in other regions.

"This decision is really meaningful and certainly changes the perception of whether there is any attention being paid to war crimes and crimes against humanity (in Palestine)," Kaye said.

The preliminary inquiry was announced a day after the Arab League endorsed what would be a second Security Council resolution in as many months calling on Israel to withdraw from Palestinian territory that it has occupied since 1967. On December 30, the Council rejected a Jordanian text calling for a 2017 deadline for the withdrawal. The next day, Palestinian President Mahmoud Abbas ratified the ICC's Rome Statute, making the move to join the court official.

A new, more pro-Palestine Council may put the US in the awkward position of wielding its veto, something it was able to avoid in December.

Follow Samuel Oakford on Twitter: @samueloakford