Israel’s ongoing building of settlements in the West Bank and east Jerusalem would likely be more vulnerable to prosecution than its military actions against Palestinians — if the International Criminal Court’s top prosecutor decides to open a war crimes investigation.
Such a probe is still a long way off, but the ICC moved a step closer on Friday when it cleared the way for prosecutor Fatou Bensouda to open a war crimes probe against Israel and Palestinian militants.
Any investigation would look at Israeli military actions during a devastating 2014 war in the Gaza Strip and mass border protests that began in 2018. But Israel’s settlement construction in the West Bank and east Jerusalem appear to be open to even tougher scrutiny.
International law bars a country from moving its civilians to occupied territory, making settlement-linked charges perhaps easier to prove than disproportionate use of force on the battlefield.
What did the ICC decide?
Bensouda declared in December 2019 that she believed there was a “reasonable basis” to open a war crimes probe into Israeli military actions and settlement activity. But first, she asked the court to determine whether she had territorial jurisdiction.
In a 2-1 ruling last week, judges granted her that jurisdiction in the West Bank, east Jerusalem and Gaza Strip. The Palestinians claim all three areas, captured by Israel in the 1967 Middle East war, for a future state.
The ruling did not open an actual war crimes probe. That will be Bensouda’s decision. In a brief statement, she said she would closely study the ruling before deciding how to proceed. That process could take months to play out.
In the meantime, Israel has launched personal attacks against Bensouda and accused the court of holding it to unfair standards. It also says the Palestinians don't have a state says accuses the court of wading into political issues.
How did we get here?
Although the Palestinians do not have independence, the state of Palestine was accepted as a nonmember observer state by the UN General Assembly in 2012. The Palestinians have used that upgraded status to join dozens of international organizations, including the ICC.
The Palestinians subsequently asked the court to investigate Israeli military practices in Gaza and settlement activities in the West Bank and east Jerusalem. They asked that the investigation go back to June 13, 2014, a date that coincided with Israel’s war with Gaza's rulers from the militant group Hamas.
The international tribunal is meant to serve as a court of last resort when countries’ own judicial systems are unable or unwilling to investigate and prosecute war crimes.
Israel is not a member of the court and does not recognize its authority, saying it has an independent, world-class judicial system. But the Palestinians say Israel is incapable of investigating itself and claim Israel’s justice system is biased against them.
Embarrassing setback for Israel
At this stage, Israel has little to fear. Friday’s decision was an embarrassing setback, but prosecution of Israeli officials remains hypothetical. Yet the ruling opens the door to a potentially troubling scenario in which former and current Israeli officials might risk arrest if they travel abroad. The Haaretz daily reported Sunday that Israel is preparing to brief hundreds of current and former security officials, fearing they could be subject to arrest.
In the Gaza war, over 2,200 Palestinians, including nearly 1,500 civilians, were killed by Israeli fire, according to United Nations estimates. At least 73 people, including six civilians, were killed on the Israeli side, according to Israeli figures.
Still, proving war crimes could be difficult. Israel says it acted in self-defense against nonstop rocket fire against its cities. It also accuses Hamas, which launched rockets from residential areas, of using civilians as human shields.
Israel also says its own judicial system is more than capable of investigating itself. After the war, the military opened dozens of investigations into the conduct of its troops. Although there were only a handful of convictions on minor charges, that could be enough for Bensouda, who dropped a similar case against British troops in Iraq last year because UK authorities had investigated.
What about the settlements?
Israel’s ongoing settlement building on occupied lands, starting half a century ago, could be much harder to defend.
Some 700,000 Israelis now live in settlements built in the West Bank and east Jerusalem. Settlements are widely viewed as illegal based on the Geneva Convention principle that an occupying power is barred from transferring its population to territories captured in war. Population transfers are listed as a war crime in the ICC’s founding treaty, the Rome Statute.
“The settlement issue is really the biggest issue. This is the elephant in the room,” said Yuval Shany, an expert on international law at the Israel Democracy Institute.
Israel annexed east Jerusalem after the 1967 war and considers the area an inseparable part of its capital. It says the West Bank is “disputed,” not occupied, and its fate should be decided through negotiations.
Yet the Israeli positions have little support internationally, particularly since the departure of the settlement-friendly Trump administration last month.
Shany said the court ruling means that Israeli settlement policy could come under hard-to-defend scrutiny. “This exposes basically the entire Israeli political elite that has been part of a settlement policy to criminal proceedings before the court,” he said. “This is a significant setback.”
Could Palestinians face risks?
In her 2019 decision, Bensouda also found a reasonable basis to conclude that Hamas and other Palestinian militant groups in Gaza committed war crimes by launching rockets indiscriminately toward Israeli population centers.
Hamas welcomed the court’s ruling but declined to comment on the possibility that it could also be the subject of a future probe.
