The International Criminal Court’s Probe into War Crimes in Palestine (2015)

Palestinians have been lobbying for the International Criminal Court (ICC) to be used as a tool of justice for the alleged crimes committed against them for several years. Due consideration was given after the 2014 Gaza offensive by Israel – “Operation Protective Edge” – when observers alleged that war crimes on both sides had been committed.

In January 2015, the Government of Palestine acceded to the Rome Statute, which is the founding document of the ICC, and accepted ICC jurisdiction over alleged crimes in the occupied Palestinian territories (oPts). After a lengthy pretrial investigation, the ICC Prosecutor Fatou Bensouda concluded there was enough evidence to investigate war crimes in the oPts. The ICC stated there were “no substantial reasons to believe that an investigation would not serve the interests of justice.”

Despite this decision, Israel and its main allies opposed the investigation, applying pressure on and brokering agreements with the Palestinian Authority to shelve the probe. However, in March 2021, Bensouda announced the opening of the investigation with the Pre Trial Chamber I (PTC I) making clear that the Court had jurisdiction over the territories of Gaza, the West Bank, and East Jerusalem. 

The ICC investigation is an important avenue for justice for the Palestinians, although it is not without its shortcomings: many critics lament the scope of inquiry used in investigations, saying it is too narrow and that the root cause of Palestinian oppression will not be solved.

The decision to investigate is still, however, a landmark ruling and its evolution and trajectory are worth discussing. This article will also look at the response of international bodies and possible outcomes. It will also touch on what remedies a ruling under the Rome Statute can offer and whether it will represent true justice.

The 2015 ruling has not been the Palestinians’ first attempt to pursue international justice through the Rome Statute. The Palestinian Authority had previously attempted to seek the ICC’s jurisdiction in 2009 for a retrospective investigation from 2002. The ICC prosecutor at the time, Luis Moreno-Ocampo, rejected the application as Palestine was not considered a state by the UN Security Council, General Assembly, or the Secretary-General.

However, since the General Assembly granted Palestine non-member observing status in 2012 under resolution 67/19, re-application to the ICC has been anticipated.

Accession to the Rome statute came several days after the Security Council rejected Palestine’s status as a full member of the UN at the end of 2014. In addition, Palestinian officials submitted a declaration under Article 12(3) of the Statute, granting the ICC jurisdiction for crimes committed since 13 June 2014, a date chosen by Palestine. The Article 12 declaration allows retrospective jurisdiction, which would not ordinarily apply to accession. This would enable the ICC to hold Israel and other parties accountable for alleged (war) crimes committed since that date.

By the 20th of December 2019, Bensouda concluded all criteria under the statute had been met to determine the ICC’s jurisdiction. Bensouda also asked that the PTC I authorise her decision to open the investigation due to “the unique and highly contested legal and factual issues attaching to this situation.” On 5 February 2021, the PTC I ruled the Court could exercise its criminal jurisdiction in “the Situation in Palestine”, extending to Gaza and the West Bank, including East Jerusalem.

Any investigation by the ICC must have appropriate temporal, subject-matter, and geographic jurisdiction; Meaning, they must relate to a certain time frame and area where and when the ICC jurisdiction applies and must involve crimes the institution is mandated to investigate. The former cannot ever include events before 1 July 2002 when the governing Rome Statute came into force.

The probe, with the jurisdiction to investigate crimes committed since 13 June 2014,  would include the 2014 Israeli offensive on Gaza. Bensouda has said there is a reasonable basis to believe that both sides had committed war crimes during the offensive and, therefore, will fall under the investigation’s subject-matter scope. 

However, she also said it could look at settlement-related activities, including expansion; Israel’s use of disproportionate force against demonstrators in Gaza since 2018 during the Great March of Return that led to casualties and injuries ; crimes against humanity, such as persecution, deportation and transfer of the Palestinian population; and the crime of apartheid against Palestinians in the West Bank, including East Jerusalem. 

Bensouda also stated that the Palestinian authorities, including Hamas, will be investigated for alleged crimes committed during the Gaza offensive, these crimes being torture and the support of attacks against Israeli citizens.

Even the most recent bouts of violence in the oPts could be investigated, including events during the fighting in May 2021, which human rights observers said violated laws of war.

On the day that the ICC confirmed the opening of the investigation, US Secretary of State Antony Blinken (under US President Joe Biden) released a statement expressing the Administration’s  disappointment at the decision:

“The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.”

The US’s stance is in line with its general attitudes to the ICC, with John Bolton, the National Security Advisor under Donald Trump, having hit out at the Court in the Hague for looking into prosecutions against US personnel and imposing sanctions against ICC officials. 

Blinken emphasised the PTC I’s decision of 5 February did not resolve legal questions over territorial jurisdiction, leaving potential gaps in future cases as the Chamber’s ruling noted that the Chamber was not adjudicating a border dispute or making a decision on future borders. He added that “unilateral judicial actions” would “exacerbate tensions and undercut efforts to advance a negotiated two-state solution” that indicated that without the cooperation of Israel and the US, which had typically mediated peace efforts, it undermines and places in bad faith those same peace efforts, according to Blinken. 

Israel has also said it would not cooperate as it was not obliged to as a non-member to the Rome Statute.

Meanwhile, Palestinian officials rejected the statement that Palestine did not qualify to be a party to the Rome Statute nor jurisdiction of the ICC. 

“This is an existential test of credibility for the international system,” Ambassador Ammar Hijazi, assistant of the Palestinian Foreign Minister for multilateral affairs, told Fanack. “States have to decide where they stand on this and whether they want to have a hand in unravelling this system. Either way, Palestine will not accept to be the exception to the rule of universal accountability.” He added that starting the investigation could have a cooling effect and deter activities like settlement expansion.

The UK, to criticism, also expressed disappointment with the ICC’s decision, as did several other countries. Germany, Austria, the Czech Republic, Hungary, Brazil, and Uganda were among those that asked permission to present legal arguments against the tribunal’s jurisdiction on alleged crimes committed in Palestine.

American and Israeli pressure on the Palestinian Authority has been applied previously in reaction to an ICC application, from its first declaration on 22 January 2009. Both states then threatened the Palestinians would lose vital aid if it continued in their pursuit. 

While the PA was cautious after it became a non-member observer state, in 2014, the US vetoed a Security Council proposal from the European side to establish a Palestinian state with East Jerusalem as its capital by 2017, which provided further vigour to join the Court.

After Palestine acceded to the treaty, under the Obama administration, the US said it was reviewing its $440 million aid package after calling the Palestinian Authority’s move counter-productive. 

In the same vein, it criticised Israel’s freezing of tax revenues owed to the Palestinian Authority, which amounted to $127 million. Amnesty International said this act punished the civilian population.

Such pressure is unlikely to retreat. In early 2021, then Israeli Prime Minister Benjamin Netanyahu asked foreign ambassadors to start a vigorous lobbying effort to persuade allies to urge the ICC prosecutor not to move forward with her investigation, a potential sign of efforts to come. Pressure has also already come in the form of sanctions from the US on two ICC officials, including Bensouda.

Aside from the political landscape, the length of time the investigation could take could be to its detriment. The preliminary examination into the “Situation in Palestine” alone lasted nearly five years, while some ICC investigations have been ongoing for sixteen. 

In that time, various obstacles could emerge, such as if an opposing member of the Security Council launched an intervention. Bensouda’s term has also ended and her successor, Karim A. A. Khan QC, has inherited further investigations, including into Philippine President Rodrigo Duterte’s war on drugs.

The fact that Israel is not obliged to cooperate means it  does not have to willingly provide information, documents, witnesses or access to the oPts, to which Israel controls the borders. This lack of cooperation complicates the prosecutor’s job.

There is also a delicate relationship between the Palestinian parties of Fatah and Hamas. Further fractures and tensions could arise with ICC probes looming over the heads of certain Palestinian officials, even though they have all welcomed the investigation on its face.

The temporal and logistical limitations baked into the court investigation’s framework also means that crimes potentially committed in the years preceding 13 June 2014 will not be investigated nor those outside the oPts, including East Jerusalem. This is why critics have argued that the ICC probe would not address the root cause of the injustice carried out against the Palestinians since the Nakba, neither would it tackle the widely comdemned crime of apartheid against Palestinian citizens of Israel.

The ICC’s investigation has nonetheless provided hope for many Palestinians and is at least one step towards some accountability.

“The perpetrators of war crimes and crimes against humanity have evaded justice for more than half a century. An ICC investigation marks a long-overdue step towards justice for victims, and is a chance to end the cycle of impunity that is at the heart of the human rights crisis in the OPT,” said Saleh Higazi, Deputy Regional Director for the Middle East and North Africa at Amnesty International.

However, many have seen attempts to achieve justice before and there is doubt the ICC will be capable of achieving it.

“The ICC is an ambiguously positioned judicial body that relies on political buy-in,” as stated by the Carnegie Endowment for International Peace. It has no military or police to enforce the arrest warrants it issues – a prime example is a twice issued warrant for Sudan’s former president Omar al-Bashir who remains free today.

The absence of justice following the Goldstone report, which found war crimes were committed during the fighting in Gaza in 2008-2009, and the 2005 ruling by the International Court of Justice (ICJ) – an international civil court also in The Hague, Netherlands – that stated the separation barrier Israel has been building along the Green Line and deep inside the occupied West Bank, referred to as the Wall, was illegal, are for some proof that Israel’s impunity will prevail no matter the outcome.

Some observers also say the investigation will disrupt and damage further the so-called peace process. 

Others contest this and argue there is a momentum building for justice with civil society categorising Israel as an apartheid state or accusing it of apartheid war crimes. Amnesty International, Human Rights Watch and other NGOs  reported  that Israel has instilled a system of apartheid and domination over Palestinians.

While the ICJ ruling on the Wall did not result in its dismantling, there has at least been an acknowledgement of the illegality of settlement activities and attempts to instil that into policy. The Irish Control of Economic Activity (Occupied Territories) Bill 2018, which has proposed criminalising Irish nationals to import settlement goods and services from illegal settlements in occupied territories, is an example. Some companies have also withdrawn from projects in these territories.

The Wall opinion has also acted as the starting point for the Rome Statute ratification, mentioned throughout Palestine’s referral document.

While any semblance of justice is unlikely to come very soon, the fact there is a pathway puts it much closer to reality than, say, eight or so years prior. And for Palestinians, who may be hardened to the possibility that actions may not be forthcoming, it is another tool in their arsenal to apply pressure on Israel. 

While the US and Israel, the main critics of the probe, are not a member of the Court, various other countries may be forced to comply with ICC demands if arrest warrants are eventually issued.

As Palestine is a member, however, any arrests are likely to be against Palestinian officials if they are found guilty of crimes under the ICC investigation. And with the probe only looking at a limited timeframe and geographical area, which does not include crimes against Palestinians in Israel, any justice will also be fractional.

Human Rights & Palestinian-Israeli Conflict

This article is part of our Human Rights & International Law coverage within the Palestinian-Israeli Conflict.

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