ICC Invents Palestinian State

The chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, recently announced that, at the request of “the State of Palestine,” she wants to open an investigation into alleged Israeli war crimes in the West Bank, eastern Jerusalem, and the Gaza Strip.

A Muslim lawyer from Gambia, Bensouda said there is “a reasonable basis to believe that war crimes were committed in at least three incidents during the 2014 Gaza war” by members of the Israel Defense Forces (IDF), including “intentionally launching disproportionate attacks.”

In addition, Bensouda vowed to investigate IDF activity along the Gaza border since March 2018, when Palestinians began the “Great March of Return”—weekly protests aimed at forcing Israel to grant the “right of return” to more than 5 million “Palestinian refugees,” effectively ending the existence of a Jewish majority in Israel.

Still more audacious, Bensouda said she will probe actions by Israeli authorities that encourage Jews to live and work in the West Bank and eastern Jerusalem. Such actions, she claimed, could constitute a war crime because they allegedly violate Article 49 of the Fourth Geneva Convention, which prohibits the “Occupying Power” from transferring parts of its own civilian population into the territory it occupies.

Legal scholar Eugene Kontorovich said that by opening such an investigation, the ICC “ignores international law by inventing a Palestinian state that does not exist and creates a crime that no one in international law has ever been charged with before: the crime of people living in places.” He added, “To say it is a war crime for a Jew to live in the Jewish Quarter of the Old City [of Jerusalem] is absurd. It is quite clear that the crime of people living somewhere is a crime for which one must be Jewish to be eligible.”

Bensouda said she wants to probe all war crime claims dating back to June 13, 2014, when Hamas and other jihadist groups in Gaza began firing rockets at civilian-populated areas in southern Israel. The Israeli government responded with Operation Protective Edge, a 50-day military campaign to restore security to the south of the country. A full ICC investigation could lead to charges against senior Israeli political and military officials.

Israeli Prime Minister Benjamin Netanyahu condemned the ICC’s announcement, which he described as a “black day for truth and justice” and a “baseless and scandalous decision.” In a statement, he said, “The court has no jurisdiction in this case. The ICC only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state. The ICC prosecutor’s decision has turned the International Criminal Court into a political tool to delegitimize the State of Israel. She [Bensouda] has also completely ignored history and truth when she says that the very act of Jews living in their ancestral homeland, the land of the Bible . . . is a war crime.”

Israeli Atty. Gen. Avichai Mandelblit published a 34-page statement arguing the ICC has no jurisdiction in the West Bank or Gaza because there is no sovereign state of Palestine. As a result of Mandelblit’s argument, Bensouda has given the ICC’s tribunal 120 days to “confirm” the court’s jurisdiction.

A former legal advisor for the Israeli Foreign Ministry, Alan Baker, said the case could end up destroying the ICC’s credibility: “If the court accepts the Palestinian requests and opens a formal investigation, it will damage its own juridical credibility and become politicized like other UN bodies.”

Anne Herzberg, legal advisor for the Jerusalem-based think tank NGO Monitor, said, “The ICC has willingly allowed itself to be exploited by the PLO [Palestine Liberation Organization] and anti-Israel activists, granting Palestinians, in complete violation of the Rome Statute, the ability to join the court.” She added, “If the prosecutor wants to prove that her efforts have not been driven by anti-Israel animus, she should begin by indicting and trying senior leaders of Fatah, over which she claims she has jurisdiction, for the many war crimes and crimes against humanity they have committed.”