Two weeks after the Palestinian Authority asked to join the International Criminal Court, the Hague-based ICC on Friday opened a preliminary probe that could result in war-crimes charges against Israelis and Palestinians alike.

Court prosecutor Fatou Bensouda announced in a statement that a “preliminary examination into the situation in Palestine” to determine whether there is “reasonable basis to proceed with an investigation” of war crimes allegations.

Following a failed bid to pass a United Nations Security Council resolution imposing a deadline for Palestinian statehood and the withdrawal of Israeli forces, Palestinian Authority President Mahmoud Abbas announced at the beginning of the year that the Palestinians accept the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem” since June 13, 2014.

This period covers last summer’s Gaza war, during which more than 2,100 Palestinians were killed during Israeli attacks that caused massive destruction and displacement throughout the coastal enclave. Most of the 72 Israeli fatalities were soldiers killed in Gaza, though Palestinian militants fired thousands of rockets into southern Israel.


On Thursday, Abbas announced the Palestinians would continue diplomatic efforts to secure a U.N. resolution. While recognition of statehood remains to be determined, U.N. Secretary-General Ban Ki-Moon announced last week that the Palestinian Authority would be able to join the ICC in April.

Friday’s court announcement infuriated Israeli leaders. Prime Minister Benjamin Netanyahu said in a statement that it was “scandalous that only a few days after terrorists slaughtered Jews in France, the ICC opens an examination against the Jewish state” for defending its citizens against Hamas, which fired thousands of rockets on Israeli civilians from Gaza.

“This makes the court part of the problem, not the solution,” said Netanyahu.

The prime minister stressed that Israel strictly adheres to international law while fighting terror, and maintains an independent judiciary. Among other criteria, the ICC investigates countries unable or unwilling to investigate themselves. Israel’s military is currently reviewing 100 cases related to the Gaza war and has ordered several criminal investigations.


Foreign Minister Avigdor Lieberman rejected the decision as an attempt to deny Israel the right to defend itself from terror. Accusing the court of “political anti-Israeli” bias while staying silent on the bloody war in Syria, Lieberman called for dismantling the court that “represents hypocrisy.”

A preliminary examination such as Bensouda announced can take a long time and will not necessarily lead to prosecution. In November, the ICC concluded a probe of Israel’s interception of a Turkish ship leading a flotilla to break an Israeli blockade of Gaza in 2010, which left nine activists dead, and decided not to prosecute despite what it called “reasonable basis to believe” war crimes were committed.

Several probes of the Gaza war are already underway, including one by the United Nations Human Rights Council. Israel rejects its mandate as biased and the government is not cooperating with the panel, although a delegation of Israeli citizens testified before the committee in Geneva this week about harm they had suffered at the hands of Hamas.

Israel responded to the Palestinian move to join the ICC by halting transfers of more than $100 million in taxes it collects for the Palestinian Authority. On Thursday, Abbas called on Arab countries to activate a $100-million security net to save the Palestinian Authority from a financial crash.


Protesting the possibility that the U.S. Senate might freeze aid to the Palestinians, Abbas placed responsibility for the situation on the Americans’ doorstep.

“Had the U.S. forced Israel to freeze settlement construction, we would not have joined the ICC,” he said.

Sobelman is a special correpondent.

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