ICC Delays Jurisdiction Ruling on Israel War Crimes Case over Document Length

Judges say prosecutor didn’t follow procedure in asking to submit more than 30 pages in request, tell her to try again; Netanyahu set to rally world leaders against Hague body

Judges at the International Criminal Court in The Hague rejected a request to rule on the possibility of opening an investigation against Israel and Hamas for possible war crimes, citing technical issues with the length of the document.

The move means a decision from the three-judge panel will be delayed, but is unlikely to significantly impact the case in any other way.

The ICC’s chief prosecutor, Fatou Bensouda, said last month that there was a “reasonable basis” to open a war crimes probe into Israeli military actions in the Gaza Strip as well as Israeli settlement construction in the West Bank.

She also asked the court to determine whether she has territorial jurisdiction before proceeding with the case.

Her request to the court, which exceeded the 30-page limit, was accompanied by a request to extend the page limit to 110 pages, citing “the unique and complex factual and legal circumstances in this situation.”

In a ruling Tuesday, the judges approved the request for the page extension, but said it was “inappropriate” to ask for the extension at the same time as the 110-page document was submitted, sending Bensouda back to the drawing board to resubmit the request.

A party or participant is formally authorized to file a document exceeding the specific page limit set out in the Regulations of the Court only once a chamber has granted a request to vary the page limit,” a statement from the ICC read.

The judges have 120 days to rule after they receive the new request.

According to Haaretz, the ruling means a decision on Bensouda pushing ahead with the case will be delayed by several months.

International law expert Nick Kaufman wrote on Twitter that the decision was a “slap in the face” of Bensouda.

The decision came as Prime Minister Benjamin Netanyahu prepared to step up his campaign against the ICC and Bensouda, with plans to rally support from leaders gathering in Jerusalem for a major Holocaust commemoration event.

Israel, which is not a member of the ICC, has said the court has no jurisdiction and accused Bensouda of being driven by anti-Semitism.

In an interview with the Christian network TBN aired on Tuesday, Netanyahu praised US President Donald Trump for criticizing the ICC and called on others to follow suit.

“I think that everybody should rise up against this,” he said, according to excerpts released by his office. “I urge all your viewers to do the same and to ask for concrete actions, sanctions against the international court, its officials, its prosecutors, everyone.”

“They’re basically in a full frontal attack on the democracies, both on the democracies’ right to defend themselves, and on Israel’s right, the Jewish people’s right, to live in their ancestral homeland, the Land of Israel,” he said.

There was no immediate reaction from Bensouda. But she recently told The Times of Israel that accusing her of anti-Semitism was “particularly regrettable” and “without merit.”

“I, along with my Office, execute our mandate under the Rome Statute with utmost independence, objectivity, fairness and professional integrity. We will continue to meet our responsibilities as required by the Rome Statute without fear or favor,” she said,

Israel-critics had also attacked Bensouda for seeking an answer from the judges on jurisdiction before launching the case, regarding it as her punting responsibility.

But speaking to ToI, she defended the move as the more prudent course of action.

“I believe that it is far better and responsible that it is heard and decided now, before an investigation is opened, than after several costly years of investigation, after evidence has been collected, witness testimony taken, charges leveled, only then to find out whether the Prosecution’s position was correct,” she said.

There was no immediate Israeli or Palestinian reaction to the ICC ruling Tuesday.

The preliminary examination by the ICC was launched in 2015 after the PA signed the Rome Statute and formally accepted the court’s jurisdiction over its territory. It probes Israeli construction beyond the Green Line, the 2014 Gaza War and the so-called March of Return Gaza border protests that began in March 2018.

Israel argues that Palestine is not a sovereign state despite signing the Rome Statute, and thus cannot appeal to the ICC.

At the United Nations on Tuesday, Palestinian UN Ambassador Riyad Mansour accused Israel Tuesday of trampling on the UN Charter, UN resolutions “and any and all relevant provisions of international law.”

“Like common war criminals, even the specter of an ICC investigation hasn’t deterred Israeli government officials and military commanders, who continue to blatantly challenged the Security Council and international community as a whole,” he told the UN Security Council.

Mansour stressed that there is “an urgent, shared responsibility and obligation for the Security Council, General Assembly, ICC and all states” to uphold the rule of law.


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