In a surprise statement last month, Fatou Bensouda, the chief prosecutor of the International Criminal Court at The Hague, announced that there is legal basis to probe Israel and Palestinian groups over war crimes in the West Bank (including East Jerusalem) and the Gaza Strip, and that her office was ready to investigate the matter.
While Israeli and U.S. officials condemned the news, Palestinians praised it as a major step in the fight for accountability and justice. Yet many remain concerned by one caveat: the prosecutor asked the ICC’s pre-trial chamber to “confirm” that Palestine was indeed a “state,” a status it has held since it was officially recognized by the UN General Assembly in 2012. Without that approval, the ICC may not have the jurisdiction to carry out its work. The chamber has till April to give its answer.
The announcement has stirred many questions and mixed reflections among Palestinians. Why is Palestine’s legal statehood still in question? What does this mean for the Palestinian struggle moving forward? And why did it take so long for the prosecutor to support an investigation, despite an abundance of evidence?
“The court should have dealt with the question of Palestine’s jurisdiction and permissibility in the very first stages of the preliminary examination, in line with the Rome Statute,” says Rania Muhareb, a legal researcher and advocacy officer at Al-Haq, a Ramallah-based human rights organization. Given that the prosecutor herself greenlit Palestine’s eligibility as a state, “It’s surprising that this question is still being raised after five years.”
The preliminary examination is the initial stage to find “reasonable grounds” that war crimes or crimes against humanity were committed in the occupied territories since Jun. 13, 2014 (the starting date requested by the Palestinian Authority when it acceded to the Rome Statute, the court’s founding treaty). The full investigation, if commenced, could lead to indictments and eventual prosecutions of senior Israeli and Palestinian officials, commanders, and other key figures.
Diana Buttu, a political analyst and former legal advisor to the PLO, acknowledges the possibility that Bensouda, whose term ends in June 2021, may be “kicking the can down the road” to avoid personally delving into the controversial politics of the conflict — a tactic that her predecessor, Luis Moreno Ocampo, was accused of during his tenure. But Buttu thinks that Bensouda is in fact trying to move things forward because the prosecutor recognizes the conflict’s worsening trajectory.
“She could have just sat on the case for years,” says Buttu. “But I think the reason she’s not doing so is because she sees just how extreme things are becoming around Palestine and wants to send a signal to Israel and the international community that if they don’t want something to be done at the level of the ICC, then they’re going to have to do something at the political level.”
In this respect, Muhareb and Buttu agree that the “confirmation” could simply be a way to make Palestine’s statehood as ironclad as possible so that it would no longer be a subject for debate — an area that Israeli authorities have hoped to use to bog down the process, and which Bensouda alluded to by citing the case’s “unique and highly contested” issues. Even so, stresses Muhareb, it should not justify further delays while crimes are ongoing and victims are left without redress.