The Palestinian Authority is preparing to refer Israel to the International Criminal Court (ICC) for alleged war crimes — a potential key development for a case opened by the Court in 2015.
A document referring Israel to the ICC for “war crimes” was signed in Ramallah on Tuesday evening by Palestinian Foreign Minister Riad Malki and is expected to be filed with the Prosecutor next week. The decision was taken after the May 14 protests in Gaza, senior Palestinian official Saeb Erekat told the press.
Once Ramallah has filed the case to the office of ICC Prosecutor Fatou Bensouda, she will have the possibility to open an investigation without a green light from the judges. The Court is expected to appoint three trial-chamber judges to follow the case. They could, for example, ask for explanations if the Prosecutor decides to close the investigations as she did in the Mavi Marmara case. This case is much more complex and sensitive for Israel.
On May 14, as the Trump administration was opening its embassy in Jerusalem to great fanfare – an act viewed as illegal under numerous UN Security Council resolutions on the status of the city –, Israeli forces were responding with live ammunition to the protests in Gaza, leaving at least 58 dead and nearly 1,360 injured. Since the “March of Return” protests started in Gaza at the end of March, Israeli bullets have killed some 120 people and left thousands injured. Israel accuses Hamas of manipulating the people of Gaza.
The Palestinian Authority became a member of the ICC in January 2015 after the failure of negotiations to get a UN timetable for Israeli withdrawal from occupied territories in the West Bank. A few days later, at the request of Ramallah, the Prosecutor opened a preliminary examination (first step before the possible opening of a formal investigation) on crimes committed since June 2014 in Gaza and the occupied territories, including East Jerusalem. This preliminary examination has been under way for more than three years.
On Tuesday, before the announcement, ICC Prosecutor Fatou Bensouda expressed “deep concern” at the escalation of violence in Gaza, saying she was watching the situation closely and would “take any action warranted”. Bensouda urged “all those concerned to refrain from further escalating this situation and the Israel Defence Forces to avoid excessive use of force.”
“Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court,” she warned in an earlier statement on April 8. Adding a cautious note, she says this would happen “with full respect for the principle of complementarity”, under which States have primacy over the ICC.
The Arab League has also called on the ICC to go after the perpetrators of crimes committed in Gaza. Secretary General Ahmed Aboul Gheit condemned what he called Israeli “massacres”, saying they appeared to be war crimes and urging the Court to intervene. At the same time, during a UN Security Council meeting in New York, Palestinian delegate Riyad Mansour called for an immediate end to the “odious massacre committed by Israel in the Gaza Strip” and called for an independent UN inquiry. This echoes a call by UN Secretary General Antonio Guterres at the end of March, but the idea is opposed by Israel’s traditional ally the United States. Some dozen countries support the launch of an independent probe.