International Criminal Court prosecutor Fatou Bensouda late Friday initiated a preliminary probe into whether the IDF committed war crimes during the recent Gaza war and, more seriously, declared definitively that Palestine is a state for the purpose of such an investigation.

The declaration of “Palestine” as a state is the most serious escalation toward possible war crimes trials of IDF personnel and Israeli leaders the country has yet faced.

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From February 2009 until April 2012, the Palestinian Authority made attempts to bring war crimes allegations against Israelis relating to the 2008-9 Gaza war, but the ICC Prosecutor’s Office itself dismissed the attempts, declaring that, at the time, “Palestine” was not yet a state and that only states could seek ICC intervention.


A statement issued by Bensouda indicated that the UN General Assembly’s November 29, 2012, vote recognizing a “State of Palestine” had removed that hurdle.

Bensouda’s decision does not mean actual war crimes trials are imminent.

Israel has a range of jurisdictional objections it can make at this preliminary probe phase, a stage where Bensouda gathers information to decide whether to fully investigate and potentially file indictments.


One is that its own war crimes investigations make ICC investigations superfluous – a defense that could be extremely viable, since ICC rules do not permit it to investigate war crimes in countries that reasonably self-investigate.

Another is that the PA signed away any right to seek ICC intervention under the Oslo Accords.

Yet another is that Israel is not a member of the ICC and could just decide not to show up – and there are many others.

Still, the announcement raises the stakes and likely ushers in a hard-hitting era in which Israel, the PA and their supporters will swamp the ICC with legal memoranda about why it should or should not investigate further.

Bensouda cited in her decision “the Government of Palestine’s accession to the Rome Statute on 2 January 2015 and its declaration of 1 January 2015, lodged under article 12(3) of the Rome Statute – the Court’s founding treaty – accepting the jurisdiction of the ICC over alleged crimes committed ‘in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.’” Should the ICC move from a preliminary probe to a full investigation, a decision that likely would be drawn out over an extended period, it would cover not only the Gaza war, but also Operation Brother’s Keeper, which followed the kidnapping and murder of three Jewish teens in June 2013.

An entirely separate debate over ICC investigations may go forward regarding Israeli settlements, which former ICC prosecutor Luis Moreno O’Campo said potentially could be viewed as war crimes.