International criminal court warns Israel that a full investigation into the Gaza conflict may go ahead even without its help

Israel has been warned by the international criminal court (ICC) that if it does not cooperate with an initial investigation into possible breaches of international law in the occupied Palestinian territories, the court may launch a full investigation without its input.



The remarks, made by the court’s chief prosecutor, Fatou Bensouda, in an interview with the Associated Press, suggest she is pushing forward more forcefully than anticipated with her preliminary investigation.

The Palestinians accepted the jurisdiction of the international court of last resort in January and formally joined on 1 April.

Although the Palestinian president, Mahmoud Abbas, has not initiated a formal complaint, Bensouda’s office has been investigating potential crimes on its own initiative, including incidents from last summer’s war in Gaza.

Bensouda confirmed that prosecutors would be looking at the Gaza conflict, as well as other issues that include Israel’s settlement construction on occupied Palestinian lands. They will also examine alleged war crimes committed by Hamas, which controls Gaza, including its firing of thousands of rockets at Israeli residential areas from crowded neighbourhoods.

The preliminary examination is the first step in the lengthy process towards potentially establishing a full case before the court.

Israel’s military attorney general has launched its own investigation into a number of controversial incidents that occurred during the war, which left more than 2,100 Palestinians and more than 70 Israelis dead. Those incidents include the targeting of UN schools that were being used as shelters.

A recent commission of inquiry set up by the UN secretary general, Ban Ki-moon, established that Israel’s armed forces were responsible for attacks on seven UN premises that killed dozens of people and injured more than 200.

Israel’s conduct of the war was also thrown under a harsh spotlight last week with the publication of the testimonies of dozens of soldiers who served in Gaza, collected by the Israeli human rights group Breaking the Silence, which included allegations that the Israeli military did not meet its obligations to protect civilians in wartime.



Bensouda told the agency she had not yet received any information from either side regarding last summer’s Gaza war and urged Israel and the Palestinians to come to her with information. The Palestinians are widely expected to provide material in response to her office’s request.

Bensouda said her office was “making attempts” to contact the Israelis and to reach out to the Palestinians.

“If I don’t have the information that I’m requesting,” she said, “I will be forced to find it from elsewhere, or I may perhaps be forced to just go with just one side of the story. That is why I think it’s in the best interest of both sides to provide my office with information.”



Israel, however, has denounced the Palestinian action as “scandalous,” with prime minister Binyamin Netanyahu warning that it turns the ICC “into part of the problem and not part of the solution”.

Bensouda stressed repeatedly that a preliminary examination was not an investigation, calling it “a quiet process” to collect information from reliable sources and both sides of the conflict.

She said the prosecutor’s office would then analyse the information to determine whether four criteria were met: Do the crimes come under ICC jurisdiction? Are there any national legal proceedings dealing with those crimes that could take precedence over ICC action? Are the crimes grave enough to warrant the intervention of the world’s permanent war crimes tribunal? Will it not be against the interest of justice if the ICC intervenes?

Once the analysis is made, she said, the prosecutor has three options: to open an investigation, not to open an investigation, or to seek additional information.

“It’s really difficult to say this is going to take two months or three months, or one year or 10 years,” Bensouda said, noting that in some instances, like Libya, the preliminary examination had been very short, while in Afghanistan the preliminary probe had already taken 10 years.

Bensouda said she had already received information “from others regarding the preliminary examination”, but refused to elaborate except to say that her office was also collecting information from confidential sources, identified groups and individuals and open sources.