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ICC Opens Investigation Of Potential Israeli War Crimes

Allan C. Brownfeld, Editor
Special Interest Report
April 2021

In March, the International Criminal Court (ICC) chief prosecutor opened a  
formal investigation into alleged war crimes in the occupied Palestinian  
territories. Fatov Masouda said the probe would cover events in the  
Israeli-occupied West Bank, East Jerusalem and Gaza Strip since June 13,  
2014. The Hague-based court ruled that it could exercise its criminal  
jurisdiction over the territories. Israel rejected Bensouda’s decision  
while Palestinians praised it. Israeli Prime minister Netanyahu said it was  
“anti-Semitic.” The ICC has authority to prosecute those accused of  
genocide, crimes against humanity, and war crimes on the territory of states  
party to the Rome Statute, its founding treaty. Israel has never ratified  
the Rome Statute, but the Secretary General of the U.N. accepted the  
accession of the Palestinians in 2015.  
Many Israeli and Jewish human rights advocates welcome the ICC  
investigation. Writing in Mondoweiss (March 4, 2021), Larry Derfner, for  
many years a columnist for the Jerusalem Post and now a contributor to  
Haaretz, notes that, “There’s a natural resistance to saying that your  
country deserves to be investigated for war crimes by the ICC in The Hague.  
But if you believe that Israel’s open-ended occupation and the settlements  
and lethal onslaughts in Gaza that go with it are morally untenable, how do  
you avoid that conclusion?”  
Derfner, the author of “No Country For Jewish Liberals,” declares that, “The  
arguments against an investigation don’t stand up. I suspect Netanyahu  
knows that the real reason the ICC doesn’t investigate Iran or Syria... or a  
number of other regimes whose criminality exceeds... Israel’s... is because  
the wrongs these regimes commit don’t effect a state that has granted the  
ICC jurisdiction over it by signing the Rome Statute. Neither Iran nor  
Syria or the other countries are terrorizing states that have signed the  
Rome Statute, so unfortunately North Korea, Zimbabwe, etc. are free to  
plague their citizens as much as they want to and they will fall outside  
the ICC’s purview. Israel hasn’t signed the Rome Statute either but the  
difference is that Palestine has. Palestine—-recognized by the U.N. General  
Assembly as the West Bank, East Jerusalem and Gaza—-is where Israel’s  
persecution has been taking place. It was the government of Palestine, the  
Palestinian Authority, that asked the ICC to investigate Israel for war  
Larry Derfner concludes: “Is it fair that the ICC is investigating Israel  
for war crimes? In the narrow legal sense, yes. In the larger moral sense,  
it’s more than fair.”  
The new ICC role, says Michael Sfard, the Israeli human rights attorney,  
means that it cannot “evade” an investigation and possible prosecution of  
Israeli officials over the illegal settlements policy on the West Bank.  
Speaking to Ori Nir on an Americans for Peace Now webinar in February,  
Sfard said that the ICC can now begin an investigation in earnest:  
> “ And Israel is in a box. It will say that it has legal mechanisms to  
investigate war crimes stemming from its assaults on Gaza and other  
atrocities but it has no such fig leaf for the settlements... On the issue  
of settlements, Israel does not claim to investigate and prosecute. For  
Israel, settlements are not illegal, and so it’s an official policy... .If  
the ICC were to drop a case against Israel, that would cause a domino effect  
of developing world countries leaving the court. So it’s an existential  
problem for the ICC.” **

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