Israel: ICC Prosecutor Reassertion of ‘Palestine’ Statehood for War Crimes Review ‘Typical of Her anti-Israel Stance’

The UN hasn’t decided if “Palestine” is a state, but that isn’t stopping the ICC prosecutor. Flags at the UN headquarters in New York. Illustrative. By Joshua Spurlock

The prosecutor for the International Criminal Court at the Hague (ICC) last week reiterated her view that “Palestine” is to be considered a “state” for purposes of the court’s review, making the territory claimed by the Palestinians in scope for a war crimes investigation. Yuval Steinitz, the leader of Israel’s taskforce for the ICC hotly rejected the argument, saying prosecutor Fatou Bensouda’s position “continues to espouse her typical anti-Israel stance.”

The current legal debate before the ICC doesn’t even consider whether or not war crimes were committed in the Palestinian-Israel conflict, as the first step is to determine if the ICC actually has jurisdiction over the territory. Unless a case is referred to the ICC by the United Nations Security Council, a state covered by the ICC must self-report its own territory to the ICC.

Bensouda, in her official response to the numerous briefings filed by dozens of nations and international actors in the case that was posted to the ICC’s website, argued that while the Gaza Strip and territory in Judea and Samaria that the Palestinians claim as the “West Bank”—which includes the eastern portion of Jerusalem—is not universally considered a “state”, the ICC should nonetheless treat it as such because it was allowed to join the ICC’s Rome Statute that includes jurisdiction for ICC war crimes reviews. The ICC’s pre-trial Chamber—which asked for the prosecutor’s views following the submission of briefings by other parties—is expected to issue a final ruling on the question of “Palestine’s” applicability for war crimes investigations later this year, according to The Times of Israel.

Steinitz, in a press statement response to prosecutor Bensouda’s continued assertion that “Palestine” is effectively a “state” and therefore eligible to bring war crimes accusations against Israel, slammed the position. Steinitz said as a result of developments he has been “forced to conclude” that Bensouda has been “influenced by the Organisation of Islamic Cooperation” and the global movement to boycott, divest from and sanction Israel (BDS).

“The Prosecutor’s disregard for the opinions of some of the world’s leading experts on international law points to her determination to harm the State of Israel and tarnish its name,” said Steinitz. “In the name of this objective she has reformulated the rules of international law, inventing a Palestinian state while the Israeli-Palestinian peace process has yet to be concluded.”

The lack of a negotiated solution to the Israel-Palestinian territorial dispute makes a critical component of statehood—the definition of a state’s actual territory—undefined, and that isn’t the only reason why “Palestine” is not legally considered a state. The UN Security Council, the most powerful global entity, has so far refused to label “Palestine” as a state either, although some UN entities have granted it state-like status.

Bensouda claimed the ICC’s view on Palestinian statehood is not tied to the official legal approach but rather to the UN allowing the Palestinians to accede to the ICC’s mandate in the first place, which took place in 2015. In her view, the ICC must treat any entity allowed to join the ICC as a state, in spite of the fact that most of the most powerful nations in the world, including the United States, the United Kingdom and the European Union, have so far refused to accept the statehood of “Palestine”.

While the case remains unsettled, Steinitz said Israel will “continue to be proud of the fact that it is the only liberal democracy in the entire Middle East—and to vigorously reject baseless attempts to tarnish its name and harm its soldiers and civilians.”

(By Joshua Spurlock,, May 3, 2020)

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