By declaring itself competent on Friday 5 February to investigate possible war crimes committed in the Gaza Strip in the summer of 2014, the International Criminal Court (ICC) indirectly offered the Authority a major diplomatic victory. Palestinian.

In particular by specifying verbatim that "the territorial jurisdiction of the Court concerning the situation in Palestine (...) extends to the territories occupied by Israel since 1967, namely Gaza, the West Bank and East Jerusalem".

Even though the ICC may have added that with its decision, it "was not ruling on a border dispute under international law or prejudging the issue of any future borders", Palestinian Prime Minister Mohammad Shtayyeh immediately welcomed , in an exclusive interview with France 24, a decision that amounts to "a victory and recognition of the Palestinian state with the 1967 borders". 

>> Interview with Mohammad Shtayyeh: "It is important that the whole world realizes the crimes committed by Israel"

Green light for the investigations of Fatou Bensouda

Concretely, on the judicial level, this decision is also synonymous with the green light for Fatou Bensouda, the prosecutor of this international tribunal which had announced in December 2019 wanting to open an investigation into possible "war crimes" committed in the Palestinian Territories in 2014. It was at his request that the ICC pre-trial chamber had to rule on the scope of its territorial jurisdiction "in the situation in Palestine".

"Fatou Bensouda can now launch an investigation at the request of the Palestinian Authority, which joined the ICC in 2015 and as such obtained the possibility of seizing the prosecutor of crimes committed in these territories", underlines Stéphanie Maupas, correspondent of France 24 in The Hague, the Netherlands, where the ICC is based.

In 2015, a preliminary investigation was launched into allegations of war crimes and crimes against humanity in Israel and the Palestinian territories, in the wake of Operation Protective Edge in Gaza.

A war that left 2,200 dead on the Palestinian side, including 1,500 civilians according to the UN, and 73 dead on the Israeli side, including 67 soldiers.

Fatou Bensouda also hinted that she could also investigate the use of non-lethal and lethal means by Israeli forces against the "return marches", protests organized in Gaza in 2018.

But also on the Israeli colonization policy, the prosecutor considering that "members of the Israeli authorities have committed war crimes", in particular by transferring Israeli civilians to the West Bank.

For their part, the Palestinians hope that this decision will "speed up" legal proceedings against the Israeli authorities.

"We are waiting for the next phase, we leave it to the Court to designate those responsible for the crimes committed against the Palestinian people, and I am sure that a number of people will suffer the consequences of this decision," the Prime Minister said. Palestinian Minister Mohammad Shtayyeh.

"The Hebrew state is certainly not a member of the ICC, but that does not change anything since this jurisdiction pursues individuals and not countries", explains Bassam Tablieh, lawyer specializing in international law and human rights, interviewed by France 24.

Based in The Hague, the ICC is specifically competent to prosecute individuals suspected of genocide, crimes against humanity and war crimes committed since July 1, 2002, the date of entry into force of its founding treaty. 

"In addition to its symbolic side for the Palestinians, I think that this decision will have a concrete impact on political leaders and soldiers likely to be prosecuted, in particular when they will be traveling abroad", estimates Bassam Tablieh.

Theoretically, if Israeli leaders were prosecuted, then they would be subject to an international warrant.

Even if the Hebrew state will refuse to collaborate with a court that it does not recognize, the 123 countries which are States parties to the Rome Statute of the ICC would then be obliged to collaborate, to arrest the persons concerned present on their territories and hand them over to the Court.

Bassam Tablieh recalls that in December 2009, the former Israeli Minister of Foreign Affairs, Tzipi Livni, canceled a stay in London in extremis after being informed that she was under an arrest warrant issued by a British court following a complaint for his role during an Israeli military operation in the Gaza Strip a year earlier.

"We hope that the Court will put an end to impunity, not only by complicating the movements of Israeli officials, but above all that it can try and imprison those who must be," insisted the foreign minister of the Palestinian Authority, Riyad al-Maliki, on the Arabic-speaking branch of France 24. 

Netanyahu "worried about his military"

On the Israeli side, Prime Minister Benjamin Netanyahu is not angry with the Court after this setback on the international scene.

"When the ICC investigates Israel for bogus war crimes, it is outright anti-Semitism," he said on Saturday in a video posted to social media.

"It's outright anti-Semitism"

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"For several months, Israeli officials have multiplied statements against the Court, and in particular Benjamin Netanyahu who had declared that the fight against the ICC was one of Israel's strategic priorities," said Stéphanie Maupas.  

The Israeli government rejects the jurisdiction of the Court and considers that "Palestine is not a state" and that the territories therefore cannot come under its jurisdiction.

Technically, it was the recognition at the UN of Palestine as a "non-member observer state" in 2012 that enabled the Palestinian Authority to join the ICC three years later, unlike Israel which , like China or the United States, is not a member of this international court.

"There is some concern on the Israeli side, where the ICC decision is seen as a blow to Benjamin Netanyahu," said Leila Odeh, France 24 correspondent in Jerusalem. The prime minister is particularly worried about his soldiers, because of names of leading IDF commanders may be affected by the court's investigations.

He added: "There is even a certain fear for politicians, since military decisions cannot be taken without a political and governmental green light in Israel, the two are linked." 

In an article published on July 16, 2020, the leading Israeli daily Haaretz reported that the Jewish state was compiling a secret list of politicians, military personnel and officials who could be prosecuted by the ICC.

A list which included, according to the newspaper, the names of 200 to 300 people, including those of some Israeli leaders in office during the last war with Gaza in 2014. Among these are Prime Minister Benjamin Netanyahu, the elders ministers Moshe Yaalon, Avigdor Lieberman and Naftali Bennett, as well as then-chief of staff Benny Gantz, now the prime minister's political rival.

Guest of "L'Entronnement de France 24", broadcast on July 2, Fatou Bensouda said she was determined to continue her investigations, despite the pressures that the Hebrew state and the United States tried to exercise on the court.

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