Chief Prosecutor of the International Criminal Court Fatou Bensouda took to Twitter Wednesday to voice her concern over the recent escalation of violence between Israel and the Palestinians and the possibility that war crimes were being committed.

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"I note with great concern the escalation of violence in the West Bank, including East Jerusalem, as well as in and around Gaza, and the possible commission of crimes under the Rome Statute," she tweeted.

#ICC Prosecutor #FatouBensouda on the recent escalation of violence in #Gaza, the #WestBank, including #EastJerusalem pic.twitter.com/jZlns3d92I

— Int'l Criminal Court (@IntlCrimCourt) May 12, 2021

Bensouda did not accuse either side of committing war crimes and called on both to seize the violence.

"My office will continue to monitor developments on the ground and will factor any matter that falls within its jurisdiction," she added.

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The families of Naftali Frenkel, Gil-ad Shaer, and Eyal Yifrach – three Israeli teenage boys who were abducted and murdered by Hamas terrorists in Judea and Samaria in June 2014, an act that would spark Operation Protective Edge later that summer – released a letter to the public on Monday expressing grave reservations over the International Criminal Court at The Hague's recent ruling to investigate Israel for alleged war crimes in Judea and Samaria and Gaza.

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The families slammed as "evil cynicism" the ruling, which was issued on June 13, 2020, and was reinforced last week. It is important to note that the ICC's mandate to investigate the events surrounding Operation Protective Edge pertains to the period beginning on June 13, 2014, a day after the boys were abducted.

"Had [ICC chief prosecutor] Fatou Bensouda truly and honestly wanted to investigate war crimes and crimes against humanity, she would have ordered an investigation into the greatest crime that was perpetrated a day earlier on June 12, 2014, when our three children were abducted – three Jewish boys who wanted to return home safe and sound," the letter said.

"IDF soldiers turned every stone and risked their lives to find our children healthy and whole and bring them home until they found their bodies. Had we met the chief prosecutor face to face as parent to parent, we would have told her about our feelings that day, how in the blink of an eye our lives changed forever – on that day that she, as the prosecutor, decided to erase from the investigation," continued the letter.

"We would ask her – how can you ignore justice for us, for the soldiers who defended our people against aggression from our enemies? The miserable decision to launch an investigation certainly won't bring back Gil-ad, Eyal and Naftali, but more than that – it pours salt on the wounds we all share, on the aching heart that cries out against the gross injustice toward the truth.

"Such a decision was made in sin and will inevitably end in sin. Such a decision can only glorify the despicable terrorists who murdered our sons and encourage the next murder. The very decision to investigate the IDF, only beginning the day after our children's murder no less, is already enough to determine what the nature of the sentence," the families concluded.

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ICC chief prosecutor Fatou Bensouda and Phakiso Mochochoko, head of The Hague court's Jurisdiction, Complementarity and Cooperation Division, were sanctioned over the court's "illegitimate attempts to subject Americans to its jurisdiction," Pompeo told reporters at the US State Department.

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He warned that individuals and entities "that continue to support those individuals risk exposure to sanctions as well."

The ICC has been investigating whether war crimes have been committed by the United States in the war in Afghanistan and by Israel during the 2014 summer war against Hamas terrorists in Gaza (Operation Protective Edge), in addition to alleged crimes in Judea and Samaria.

In June, the Trump administration authorized sanctions against ICC officials behind those investigations, in addition to visa restrictions against ICC officials and their family members.

Last year, the United States revoked Bensouda's visa after she requested ICC judges open a probe into alleged war crimes by the United States in Afghanistan.

Neither the United States nor Israel is a member of the ICC.

Richard Dicker, the international justice director at Human Rights Watch, told the Associated Press that the move is "a stunning perversion of US sanctions, devised to penalize rights abusers and kleptocrats, to persecute those tasked with prosecuting international crimes."

"The Trump administration has twisted these sanctions to obstruct justice, not only for certain war crimes victims but for atrocity victims anywhere looking to the International Criminal Court for justice," he said.

Human-rights lawyer and Middle East analyst Irina Tsukerman told Jewish News Syndicate that Bensouda and Mochochoko have aided and abetted what she deemed corruption.

"By now, the information about the events in Gaza is a matter of public knowledge; Israel, which has a very rigorous legal system for holding violations during military activities accountable has been a target of a deceptive, patronizing and utterly politicized campaign stemming from the supporters of a designated terrorist organization which has used its own civilians as human shields during that and other operations; and have furthermore arrested and tortured dissidents, critics and journalists critical either of that war or of other abusive practices," she said, referring to the US-designated terrorist organization Hamas. "None of that has appeared to have made it into Bensouda's consideration; bribery and political bias are the only logical explanations for this counterproductive process."

Regarding the ICC investigations over alleged US war crimes in Afghanistan, Tsukerman said "no such investigations have been launched against mass human-rights violators in the face of the Taliban or their various state supporters, which begs the question of the real agenda for that investigation; whether the only reason for it was to embarrass the US, which likewise has a very rigorous court marshal and legal justice system for the investigation of the accused of war crimes and torture, and to force the US out of Afghanistan, which is the goal pursued by the Taliban and those various state backers."

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Foundation for Defense of Democracies senior fellow Orde Kittrie told JNS that while the ICC investigation of whether war crimes have been committed by the United States in Afghanistan "is illegitimate and inappropriate," sanctions "are unfortunately not likely to weaken the ICC's resolve to pursue the investigation."

Therefore, he suggested, the United States "should pivot to a different approach that is more likely to achieve the bipartisan US objective of halting the two illegitimate ICC investigations."

Reprinted with permission from JNS.org.

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Israeli diplomats and legal experts on Thursday had braced for the ICC to announce its decision imminently, expecting the panel of three judges to accept the position of chief ICC prosecutor, Fatou Bensouda, whereby "the Palestinian territories fall under the jurisdiction of the court."

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According to Walla News portal, Israeli officials believe the ICC will resume work on the case in mid-August, after its summer vacation.

Last December, Bensouda announced her intention to open a full investigation into possible "war crimes" that may have occurred between Israel and the Palestinians, almost immediately sparking outcry from Israeli officials.

The probe would reportedly focus on Operation Protective Edge, Israel's 50-day war with the Palestinian terrorist organization Hamas in the Gaza Strip during summer 2014.

The possibility of such an investigation is a particularly sensitive subject for the Jewish state, which is not a signatory to the Rome Statute, the treaty upon which the International Criminal Court is predicated, and has openly declared its view that the ICC is not within its jurisdiction to investigate the Israeli-Palestinian conflict. The Palestinians adopted the treaty in 2015.

The looming decision had even prompted the Israeli authorities to even draw up a list with the names of some 200-300 defense officials and IDF officers liable to be prosecuted by ICC, according to the Haaretz newspaper.

In June, US Secretary of State Mike Pompeo warned the ICC that the United States would "exact consequences" against the court if it goes through with its investigation against Israel.

Jerusalem and Washington have both argued that they have credible judiciaries that can properly investigate and, if need be to prosecute, human rights violations, making the ICC's intervention redundant.

US President Donald Trump's administration has backed Israel in its battle against the ICC.

Prime Minister Benjamin Netanyahu has said in the past that Bensouda's decision "has turned the International Criminal Court into a political tool to delegitimize the State of Israel. The prosecutor has completely ignored the legal arguments we presented to her."

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Officials in Israel believe the panel of judges will accept the position of chief ICC prosecutor, Fatou Bensouda, whereby the court has the authority to investigate Israelis and indict them. This, despite the fact that Israel, and the United States, incidentally, are not signatories to the Rome Statute, the treaty upon which the International Criminal Court is predicated, and has openly declared its view that the ICC is not within its jurisdiction to investigate the Israeli-Palestinian conflict. Israel additionally claims that the ICC only has jurisdiction over petitions submitted by sovereign states, but that the Palestinian Authority is not a state.

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In their decision, the ICC judges are also expected to take into account requests from numerous Western countries and jurists that have called on the ICC not to interfere in a political conflict.

With that, the assumption in Israel is that the ICC will accept Bensouda's position and authorize investigations, in which case the court will pursue two types of charges: against Israeli soldiers and officers for alleged war crimes in Gaza and Judea and Samaria; and against allegedly illegal construction in Judea and Samaria and Jerusalem.

In Israel, officials are preparing to counter the ICC's ruling with both overt and covert tools. Upon the establishment of the national unity government, Minister Zeev Elkin was put in charge of the ICC issue. Elkin is spearheading an inter-ministerial task force that for years now has been orchestrating Israeli activity to counter the ICC. The task force consists of representatives from the Foreign Ministry and Justice Ministry, the National Security Council, the Strategic Affairs Ministry, the defense establishment and others. In recent months, in light of the expectation that the ICC will seek to investigate Israel, the task force has been laying the groundwork for the new situation. Israeli officials describe these actions as both defensive and offensive in nature, and will be set in motion if and when the ICC decides to launch investigations.

US President Donald Trump's administration has backed Israel in its battle against the ICC.

Jerusalem and Washington have both argued that they have credible judiciaries that can properly investigate and, if need be to prosecute, human rights violations, making the ICC's intervention redundant.

Prime Minister Benjamin Netanyahu has said in the past that Bensouda's decision "has turned the International Criminal Court into a political tool to delegitimize the State of Israel. The prosecutor has completely ignored the legal arguments we presented to her."

He added: "As we're moving forward to new places of hope and peace with our Arab neighbors, the International Criminal Court in The Hague is going backward … It finally became a weapon in the political war against Israel … The ICC was established after the horrors of World War II, in particular the terrible horrors done to our people, and it is meant to deal with problems that states bring up against war criminals, such as genocide or mass deportation," he said.

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Addressing the court's scrutiny of construction in Judea and Samaria and Jerusalem, Netanyahu said Bensouda's position went against the "historical truth" of Jewish rights in the historic land of Israel.

"It is acting against the right of Jews to settle in the homeland of the Jews. To turn the fact that Jews are living in their land into a war crime – it is hard for there to be a greater absurdity than this," he said.

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Bensouda said that the pro-Israeli countries such as Germany who have asked the court to refrain from conducting an investigation based on complaints filed by the PA were wrong. 

According to Bensouda, the Oslo Accords signed between the PA and Israel gave the court the legal jurisdiction to proceed and conduct such an inquiry. 

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In December Bensouda, said a preliminary examination into alleged war crimes in the aforementioned territories, mainly involving the construction of Jewish settlements, opened in 2015, had provided enough information to meet all criteria for opening an investigation. 

With that, Bensouda filed a request with ICC judges for a jurisdictional ruling because of the contested legal status of those territories. The judges asked member states to voice their reservations on the matter. Germany, Australia and the Czech Republic stipulated their objection to the court's jurisdiction.

A German document given to the ICC said the court does not have jurisdiction in "the occupied Palestinian territories." The document concludes that the fact that the Palestinians have petitioned the ICC for state status is not sufficient and that it must be determined that "Palestine" meets the definition of a "state."

Germany and a host of other countries said that the PA was not a country and hence according to the Rome Statute that defined the court's jurisdiction, Palestinian complaints could not be admissible, but Bensouda said Thursday that the fact that Israel and the PA signed an international agreement in the form of the Oslo Accords made gave the PA the status of a member state. 

A decision on whether to pursue an investigation into Israeli and Palestinian conduct for possible war crimes is now at the hands of the pre-trial chamber at the ICC, whose judges will evaluate Bensouda's legal opinion and other briefs filed by various organizations. 

The judges do not have a deadline however a decision is expected within the next 120 days.

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More than 50 years passed between the conclusion of the Nuremberg Trials and the establishment of the International Criminal Court at The Hague – and for good reason. The deep concern that the ICC would eventually turn into just another international body – despite the good intentions behind it, and that instead of promoting a humanistic view it would be appropriated by the distorted interests of certain pressure groups – has come to fruition.

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Indeed, this concern is materializing before our very eyes. If and when ICC judges rule it is within their jurisdiction to put Israelis on trial for "war crimes" allegedly committed in Judea and Samaria, east Jerusalem, and Gaza – the idea of an international court will have reached a point of historical, moral, and legal bankruptcy.

Because between the "war crimes" under investigation by chief ICC prosecutor Fatou Bensouda and the request of a country that doesn't exist, "Palestine," are the Jewish communities beyond the Green Line and Israel's self-defense in Operation Protective Edge – versus the persistent attempts to invade Israel's sovereign territory from Gaza under the guise of "March of Return" border protests. In other words: Jewish settlement in all parts of the Land of Israel, which are not at all occupied territories according to actual international law, is a "war crime." Also a war crime, apparently, is preventing "Palestinian refugees" from invading Israel's sovereign territory from an area that Israel willingly transferred to Palestinian control.

This is not, therefore, a legal measure to bring any Israeli "war criminals" to justice, but the exploitation of the international judicial system to implement the diplomatic goal of destroying the State of Israel. According to the international definition of anti-Semitism, this amounts to pure anti-Semitism because it entails the denial of the Jewish people's right to self-determination and employs double standards against Israel.

Bensouda willingly ensnared herself in the web spun by the "Palestinians" around the international judicial system for the purpose of creating their own international law, to incriminate Israel and put it on the same footing with the Nazis. Thus, from their perspective, they can kill two birds with one stone: The Jews would no longer be perceived as victims of history, and another precedent will have been set in their war to delegitimize the existence of the Jewish state. It now remains to be seen whether the ICC's judges fall into this trap and further throw their own court's legitimacy into question by turning it into yet another absurd circus show – ala UNESCO, UNRWA, and the UN Human Rights Council.

Bensouda, who has struggled mightily to launch war crimes and crimes against humanity investigations in the most clear-cut of cases (such as Venezuela or Ukraine), has filed a request with judges to decide whether the ICC has jurisdiction in Judea and Samaria, east Jerusalem, and Gaza. Israel – similar to the United States and Russia – declared long ago that it has no intention of ratifying the tribunal's inaugural convention. Therefore the ICC has no authority to discuss Israel's affairs, unless crimes were committed against a country that is a signatory to the ICC convention (among its neighbors, only Jordan falls in this category), and unless it is proven that the Israeli justice system is incapable of properly trying suspected war criminals.

The judges at The Hague, therefore, must determine whether "Palestine" is a country at all, the status of the "territories," and whether the Israeli judicial system is functioning properly or not. Tackling these matters is akin to wading into a minefield, which could threaten the very viability of the International Criminal Court.

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The announcement opens the possibility of charges being filed against Israelis or Palestinians.

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The Palestinians welcomed the decision but Prime Minister Benjamin Netanyahu called it "a dark day for truth and justice," adding that the ICC has no jurisdiction to investigate in the areas in question.

"The ICC only has jurisdiction over petitions submitted by sovereign states. But there has never been a Palestinian state," he said in a statement.

The ICC's chief prosecutor, Fatou Bensouda, said a preliminary examination into alleged war crimes, opened in 2015, had provided enough information to meet all criteria for opening an investigation.

"I am satisfied that ... war crimes have been or are being committed in the West Bank, including east Jerusalem, and the Gaza Strip," Bensouda said in a statement.

She said there was a "reasonable basis" to believe Israeli forces, Hamas, and other Palestinian terrorist groups committed war crimes during Operation Protective Edge in Gaza in 2014. She also said Israeli authorities may have committed war crimes related to the "transfer of Israeli civilians into the West Bank," a reference to Jewish communities in Judea and Samaria.

Bensouda also said she had filed a request with judges for a jurisdictional ruling because of the contested legal status of those territories.

"Specifically, I have sought confirmation that the 'territory' over which the court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including east Jerusalem, and Gaza," Bensouda said.

Determining where she can investigate should be resolved before she starts an investigation "and not settled only later by judges after my investigations are completed," she said.

It is not clear when a decision would be made but Bensouda said she had asked the court to "rule expeditiously" and to allow potential victims to participate in proceedings.

"Palestine welcomes this step as a long-overdue step to move the process forward towards an investigation, after nearly five long and difficult years of preliminary examination," the Palestinian Authority, based in Ramallah, said in a statement.

PA Foreign Minister Riad Malki said the ICC decision was "a dark day in the history of Israel."

Netanyahu added that Bensouda's decision "has turned the International Criminal Court into a political tool to delegitimize the State of Israel. The prosecutor has completely ignored the legal arguments we presented to her."

In a legal opinion released Friday, Attorney General Avichai Mendelblit said the Palestinians do not meet the criteria of statehood because they do not have sovereignty over defined borders. Citing past peace agreements, Israel said the two sides had agreed to resolve their territorial dispute in negotiations.

"By approaching the ICC, the Palestinians are seeking to breach the framework agreed to by the parties and to push the Court to determine political issues that should be resolved by negotiations, and not by criminal proceedings," the legal opinion said.

The Palestinians insisted they are a fully-fledged member of the court and that the court has jurisdiction.

Human Rights Watch, which has documented alleged violations by all sides in the conflict, said the court should have moved more quickly to a full investigation.

"Bensouda's decision to seek guidance from the court's judges nearly five years into her preliminary inquiry means that perpetrators of serious crimes will not face justice at the ICC anytime soon," Kenneth Roth, the group's executive director, said in a statement.

"Palestinian and Israeli victims have faced a wall of impunity for serious violations committed against them for long enough. The prosecutor should have proceeded directly with a formal probe as was within her power to do."

US Secretary of State Mike Pompeo said in a statement that the United States did not believe Palestinians qualified as a sovereign state and added: "We firmly oppose this and any other action that seeks to target Israel unfairly."

The ICC has the authority to hear cases of war crimes, genocide, and crimes against humanity committed within the territory of the 123 countries that have signed up to it. Israel has not joined the court but the Palestinian Authority has done so.

A Hamas spokesperson in Gaza welcomed Bensouda's decision "to open an investigation into the war crimes committed by the occupation against the Palestinian people."

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