Opinion Analysis by Roa Daher, Staff Writer

February 25th, 2021

On February 5th of 2021, the International Criminal Court (ICC) ruled that it had the jurisdiction to investigate war crimes committed in Occupied Palestine. That came after a long wait that started in 2015 with Palestine joining the Court that year. In 2019, the Court’s chief prosecutor Fatou Bensouda said that there was a ‘reasonable basis’ to open a probe investigating war crimes in the Gaza Strip and the illegal construction of israeli settlements in the West Bank.

As expected, the Palestinian Authority (PA) celebrated this ruling as a progressive step in the right direction, while israel condemned the Court’s decision. In a video statement, Benjamin Netanyahu, who is currently facing a plethora of corruption and bribery charges for which he will face trial later this month, said that the ICC’s ruling to investigate ‘fake war crimes’ was ‘pure anti-Semitism’. He then brought up that the reason the Court was created was to prevent any atrocities, like the Nazi Holocaust where millions of Jewish people were murdered, but that very court is now targeting the ‘Jewish State’. Interestingly, Netanyahu makes no mention of Zionism in his statement, though it arguably should be front and center. 

Once again, and unsurprisingly, the israeli government uses anti-Semitism as a blanket defense against any criticism it receives and attempts to divert attention from its own war crimes, including the cold-blooded torture and murder of Palestinians, by mentioning how states like Iran and Syria have not faced ICC probes. 

A closer look at the ICC’s landmark decision shows that it not only includes entities like the blood-thirsty Israeli Defense Forces (IDF), but also Palestinian groups like Hamas, but that is not mentioned in Netanyahu’s statement either. 

This ruling is certainly noteworthy and is a victory to Palestinians, and may even indicate an increased level of awareness about the Palestinian cause, as seen by the increase in the number of universities in the US passing BDS resolutions on campus. However, it is also important to consider the material effects of this decision and whether it will actually result in any consequences for the israeli occupation of Palestine, and all the heinous acts carried out in the name of the occupation. Even though this ruling allows for criminal investigations of israel and Palestinian groups like Hamas, there are no current plans for any such probes in the near future. Even if the investigation does happen and israel is found guilty, the ICC does not have the jurisdiction to rule on Palestine’s statehood or issue a Right of Return for diaspora Palestinians who were forcibly expelled and uprooted from their land. 

Another factor that may determine the success of an investigation into israel’s war crimes and illegal settlements in the West Bank is the Court’s chief prosecutor. It was Fatou Bensouda who was the chief prosecutor all throughout the steps that paved the way for this ICC ruling, but the Gambian lawyer’s 9-year term at the ICC as chief prosecutor ends in June of 2021. Her replacement, British barrister Karim Khan has been hailed by israel as good news for the allegations made against the israeli government, which in itself is no good news for the Palestinian cause. Another reason the investigation may not find israel guilty, even though the settlements it builds have been called illegal several times with no action following that statement, is because israel is not a member of the ICC. Thus, it may not allow ICC investigators to enter the Gaza Strip or the West Bank, which could complicate the investigation’s status. The last factor that could impede any investigation that the ICC conducts is the relationship between the US government and the ICC, which is not nearly as friendly as American-israeli relations. 

Under the Trump administration, Bensouda’s investigation into a case against the US in Afghanistan earned her sanctions in a travel ban. The US State Department strongly opposes the ICC’s recent decision on the grounds that Palestine is not a state and because israel is not a member of the ICC and so the Court cannot play a legitimate role. Once again, it appears that this is another move by the international community that has more symbolic than material meaning for the status of the expelled Palestinian people and their return to their rightful land.