EXPLAINER: Israeli settlements may face new scrutiny

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FILE - In this Feb. 7, 2017 file photo, Palestinian laborers work at a construction site in the Israeli settlement of Maale Adumim, near Jerusalem. International Criminal Court's decision authorizing its chief prosecutor to open a war crimes investigation against Israel could soon be reverberating in the Israeli-occupied West Bank. While any potential probe could look at Israeli military campaigns in the Gaza Strip, Israel's half-century campaign of building settlements on occupied lands appears to be especially vulnerable to prosecution. (AP Photo/Oded Balilty, File)

JERUSALEM – Israel’s ongoing building of settlements in the West Bank and east Jerusalem would likely be more vulnerable to prosecution than its military actions against Palestinians — if the International Criminal Court’s top prosecutor decides to open a war crimes investigation.

Such a probe is still a long way off, but the ICC moved a step closer on Friday when it cleared the way for prosecutor Fatou Bensouda to open a war crimes probe against Israel and Palestinian militants.

Any investigation would look at Israeli military actions during a devastating 2014 war in the Gaza Strip and mass border protests that began in 2018. But Israel’s settlement construction in the West Bank and east Jerusalem appears to be open to even tougher scrutiny.

International law bars a country from moving its civilians to occupied territory, making settlement-linked charges perhaps easier to prove than disproportionate use of force on the battlefield.


Bensouda declared in December 2019 that she believed there was a “reasonable basis” to open a war crimes probe into Israeli military actions and settlement activity. But first, she asked the court to determine whether she had territorial jurisdiction.

In a 2-1 ruling last week, judges granted her that jurisdiction in the West Bank, east Jerusalem and Gaza Strip. The Palestinians claim all three areas, captured by Israel in the 1967 Mideast war, for a future state.

The ruling did not open an actual war crimes probe. That will be Bensouda’s decision. In a brief statement, she said she would closely study the ruling before deciding how to proceed. That process could take months to play out.