With Trump Gone: Palestinians clear major technical hurdle in push for International Criminal Court war crimes trial for Israelis

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AMSTERDAM (JTA) — Prosecutors at the International Criminal Court have cleared a significant technical barrier to trying Israelis for alleged war crimes against Palestinians.

On Friday, a three-judge panel at the Netherlands-based tribunal decided the court has jurisdiction to investigate Israelis and Palestinian terrorists, including from Hamas, for alleged crimes during the 2014 Gaza War because the Palestinian Authority may be considered a state in the context of the court, the Associated Press reported.

The ICC has been examining a case brought by the Palestinian Authority since 2015 and chief prosecutor Fatou Bensouda has said that her preliminary probe into the request to open a case indicated war crimes had occurred.

Israel both dismissed the allegation and contested the court’s jurisdiction, arguing the court is not certified to investigate its actions because it is among the dozens of countries that have not agreed to grant the court jurisdiction on their territory. The Palestinian Authority, Israel argued, was also beyond the court’s jurisdiction since it is not a member state of the United Nations.

The ICC, which is based in The Hague, “only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state,” Israeli Prime Minister Netanyahu said in 2019, after Bensouda transferred the file.

This prompted Bensouda to transfer her file on the 2014 war to court judges so they may determine whether the court has the necessary jurisdiction.

On Friday, a three-judge panel determined that “Palestine Qualifies” as a state. One of the judges dissented.

The International Criminal Court, which is not part of the United Nations, was established in 2002 by dozens of U.N. member states that signed and ratified the Rome Statute.

The statute gives the court a mandate to bring to trial individuals — but not countries or organizations — who are alleged to have committed genocide, crimes against humanity or war crimes but have evaded justice because the relevant judiciaries in their home countries are unable or unwilling to duly prosecute them.

Israel has contested an investigation into the activities of its citizens also because it has a functioning judiciary. The  ruling Friday did not address that challenge by Israel.

The court has not yet announced that it is initiating the war crimes investigation that Bensouda is seeking.

Individuals convicted of war crimes by the ICC are subject to warrants for their arrest by signatory countries.

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