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International Criminal Court prosecutor says Israel committing war crimes against Palestinians, opens investigation

International Criminal Court prosecutor Fatou Bensouda believes Israel is committing war crimes in the West Bank, east Jerusalem and Gaza and has opened an investigation into the matter.
“I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine, pursuant to article 53(1) of the [Rome] Statute,” Bensouda said on Friday in a statement she published on the ICC website.
“In brief, I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (“Gaza”) (for specifics, see paras. 94-96); (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice,” Benousda said. 
In order to better pursue the issue, she has asked the ICC’s pre-trial chamber to rule on the question of whether the ICC has jurisdiction to hear the case, given the special circumstances relating to the territory in question. 
“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,” she said.
“Such determination is made strictly for the purposes of determining the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute,” Bensouda said.
She added that this question of jurisdiction must be answered before she can proceed. 
“This foundational question should be decided now, and as swiftly as possible in the interests of victims and affected communities,” she said.
Prime Minister Benjamin Netanyahu said that this was a “black day for truth and justice” and a “baseless and scandalous decision.” 
“The ICC has been turned into a political weapon in the fight against Israel. They want to twist the fact that Jews live in Israel, in their homeland, into war crime. This is absurd,” Netanyahu said. 
Bensouda “completely ignored the serious legal arguments we presented to her. She also ignored truth and history when she said it is a war crime that Jews live in their homeland, the land of the Bible, our ancestral land. We will not be silent. We will not bow to this injustice,” Netanyahu said.

PLO Executive Committee member welcomed Bensouda statement. “Today is an important reminder that Palestine’s determined and principled steps within the international system are significant means of protection for the Palestinian people and the standing of international law as universally applicable,” she said.

The Palestinian Foreign Ministry released a statement welcoming “The announcement of the Office of the ICC Prosecutor,” and claiming that “this step is a long overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination.”
“After nearly 5 years of preliminary examination, the Palestinian people who seek redress in this Court expect actions congruent with the urgency and gravity of the situation in Palestine and they rightly demand that these steps are taken without delay,” the statement read.
Israel has said that the ICC does not have the jurisdiction to sue Israelis for war crimes at the request of the Palestinians, Israeli Attorney-General Avichai Mandelblit said, publishing an opinion earlier in the day clarifying that position. He based his argument in large part on the fact that the Palestinian Authority is not a sovereign state and does not have sovereign power over those territories. 
The ICC has jurisdiction only in matters regarding sovereign states and, therefore, does not have the authority to hear cases against Israel submitted by the PA, he explained.
“The principled legal position of the State of Israel, which is not a party to the ICC, is that the Court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the Court are legally invalid,” Mandelblit wrote.
“Only sovereign states can delegate criminal jurisdiction to the Court. The Palestinian Authority clearly does not meet the criteria for statehood under international law and the Court’s founding Statute,” he said.
The Palestinians have argued that they do have the same rights accorded UN member states before the court, because the UN recognizes Palestine as a “non-member” UN state.” While the designation does not provide it with membership, it allows it to enjoy many of the same benefits, including the ability to sign treaties and statues.
In 2015 it signed onto the Rome Statute and become a party to that treaty, which governs the ICC. Neither Israel nor the United States are parties to the statute.   
But the AG’s office has explaining that signing onto the treaty, does not mean that it can legally receive all the benefits of sovereign mentions.
“The claim that the Palestinians have purported to join the Rome Statute does not meet, nor can it replace, the substantive test requiring criminal jurisdiction to have been delegated to the Court by a sovereign state with a defined territory,” he continued.
“Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the Court’s jurisdiction,” Mandelblit said. 
In addition, he explained, if the court were to make a jurisdictional decision it would be weighing in on a matter that is a subject of future negotiation between Israel and the PA.
“Israel and the Palestinians agreed, with the support of the international community, to resolve their dispute over the future status of this territory in the framework of negotiations,” he stated.
“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,” Mandelblit wrote. 

“The Court was not established for such purposes, nor does it have the authority or capacity to determine such matters, especially in the absence of the consent of the parties,” he explained. 

Mandelblit explained “even if the Rome Statute were to be misinterpreted so as to allow non-sovereign entities to confer jurisdiction upon the Court, existing Israeli-Palestinian agreements make it clear that the Palestinians have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court.” 

Any conclusion that the ICC has jurisdiction would not “withstand any serious legal and factual scrutiny, and would inevitably run up against the terms of the Rome Statute itself as well as the rules of general international law more broadly.”

“The ICC Prosecutor has caved in to Palestinian lies and hatred. As a former member of the Security Cabinet and a member of the Knesset Foreign Affairs and Defense Committee, I can testify that the IDF does more than any army in history to prevent civilian causalities,” commented Blue and White MK Yair Lapid.

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